Impact of e-Discovery on the CIO

27 February 2009 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

A recent report by the Ponemon Institute commissioned by Symantec found that nearly 60 percent of departing employees steal company data. Given the amount of information that is electronic it’s not much of a surprise since it is so easy to take data which may be attached to an email, copied to a laptop, loaded to a thumb drive, or copied to a CD. When the departing employee leaves of their own accord, they can plan to take valuable information and may be able to hide their tracks. Often times departing employees want to help their new employers, or so they think, however this can be disastrous to the new employer. This is particularly true when they are unaware that their new employee brought confidential information from a previous job.

Litigation Abounds

Often stealing company information leads to the lawsuits of theft of trade secrets that on the surface appear to be labor and employment disputes. As a result the IT department does not always get involved early enough to help avoid legal problems in discovery.

Real Example

A few years ago a former employer sued three former employees claiming that they stole trade secrets. The former employer also alleged that one of the former employees wiped his laptop clean before departing which destroyed emails, spreadsheets, and documents which contain confidential information. Based on the representation to the judge, a Temporary Restraining Order was issued against the three former employees to preclude them from using any former employer trade secrets.

Deposition of the CIO

During discovery the former employer’s CIO was deposed, and apparently not aware of what allegations that were made in the court pleadings. So the CIO testified that the day the former employee departed that he took possession of the laptop that had been purportedly wiped clean. That same day the CIO fired up the laptop and testified that there were thousands of emails, spreadsheets, and documents which he copied to his server. Then he turned the laptop over to his staff who “scrubbed” the disk, whatever that meant...and he really did not know. He got the laptop back from his staff a few months later. There was no log or chain of custody documentation regarding the laptop. At the temporary injunction hearing the former employer’s attorney did not know how to defend a claim of spoliation and as a result never got an injunction and the case soon settled.


Before filing a lawsuit the CIO and lawyers should have had a discussion about the evidence concerning the laptop and electronic evidence, and even though the suit was filed it would have been prudent for the lawyers to have properly prepared the CIO for his deposition. Not knowing the claims proved to be a disaster on many levels.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.


Related Services