You’ve just received a call from an attorney who represents a company that learned one of its key employees is quitting to join a competitor. This employee had access to a proprietary database of sales and marketing information, key plans for future expansion, and trade secret information about the products the company manufactures and sells. The employee signed a non-compete agreement and a separate confidentiality agreement, but you have reason to suspect the former employee has no intention of abiding by these agreements. The employer wants immediate action and the attorney asks you what should be done.

Traditionally, the attorney would send a cease and desist letter to the former employee and the new employer based on the existing agreements, and then rush to the courthouse to file a motion for a temporary restraining order. Often they would do this without any hard evidence to back up the claim of the likelihood of irreparable harm. They would gather whatever documentary evidence they could find concerning information that was previously in the former employee’s possession, and try to argue from the paper record and the fact the employee had access to computerized information on the client’s computer network that the nature of the information the employee had access to could be used to aid the efforts of the new employer. If that happened they would contend the original employer would necessarily suffer grave commercial harm.

These days, however, a great deal more is required of an attorney before the motion for injunctive relief can be filed. You can help them meet their professional obligations by providing advice on the preliminary steps that need to be addressed to preserve electronically stored information. The attorney must first establish a litigation hold of all potentially relevant electronically stored information. Once this is done you will be in a position to examine the available electronic evidence in a forensically defensible manner to determine if there is actual proof that underlies the claim that the former employee took confidential information that can be used by the new employer to its financial advantage. Only then will the attorney be able to meet the evidentiary burden required when seeking a temporary restraining order against the use of such information. The attorney needs to have the technical expertise to manage these issues or he needs to find someone who does who can quickly help him build the case. Thus, you may be able to help much sooner in the process than you might think.

Attorneys today know (or should know) that the duty to preserve electronic information arises when there is a reasonable expectation of litigation. When a key employee quits to go work for a competing employer there is little doubt there is a reasonable expectation of litigation. This means the employer contemplating litigation must immediately take steps to preserve the ESI. If the employee has a laptop or PC, the computer should be sequestered. If the employee gives notice in person during the work day, the employee should be accompanied back to his or her workstation and not be given access to the computer. If the computer is not turned on it should be left off, and the client should be warned not to allow anyone to boot it up until you’ve been to the site. If it is turned on, and you are not able to come to the site immediately, you should tell the client to pull the plug. You must explain to the attorney and the client that simply booting up the computer can alter potentially relevant ESI.