In Rimkus Consulting Group, Inc. v. Nickie G. Cammarata, et. al., 2010 U.S. Dist. Lexis 14573 (S.D. Tx. Feb. 19, 2010), U.S. District Court Judge Lee H. Rosenthal citing Judge Shira Schiendlin's recent Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC Opinion granted plaintiff's motion for sanctions holding that defendants willfully destroyed email and other electronic evidence and imposed sanctions that permitted the jury to hear evidence of the defendants' conduct and to give the jury an adverse inference instruction.

In late 2006, plaintiff was sued in Louisiana by previous employees including Cammarata and Gary Bell.  The former employees had begun a competing company offering investigative and forensic engineering services for insurance disputes and litigation. In the Louisiana suit, Cammarata and Bell brought a declaratory relief action challenging the enforceability of their non-compete agreements with Rimkus.  Rimkus, filed the instant lawsuit for breach of those agreements and theft of trade secrets.  Plaintiff brought a motion for sanctions alleging defendants Cammarata and Bell and their counsel conspired to destroy relevant electronic evidence.  The defendants admit that certain evidence was destroyed, but argue that plaintiff has suffered no prejudice as a result of such destruction. Defendants, in turn, filed a motion for summary judgment.

The court, relying heavily on the recent opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, No. 05 Civ. 9016, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), analyzed the defendants' conduct to determine the degree of culpability as well as any prejudice suffered by plaintiff.  The court noted that, unlike the 2^nd Circuit, the 5^th Circuit requires more than mere negligence to impose severe sanctions such as an adverse inference instruction.  However, unlike Pension Committee, the present case did not involve allegations of negligence in electronic discovery. Rather, the case involved intentional destruction.

The court granted, plaintiff Rimkus' motion for sanctions in part, and furthered ordered an adverse inference instruction related to defendants' spoliation of evidence. The instruction will inform the jury that if it finds the defendants intentionally deleted evidence to prevent its use in anticipated or pending litigation, the jury may, but is not required to, infer that the lost evidence would have been unfavorable to the defendants. In addition, plaintiff was awarded the fees and costs incurred in identifying and revealing the spoliation and in litigating the consequences, including fees and costs for obtaining emails through third-party subpoenas, taking additional depositions, and filing and responding to motions on sanctions. The defendants' motion for summary judgment was also granted in part, but denied as to plaintiff's claims for misappropriation of trade secrets, breach of fiduciary duty, unfair competition, and civil conspiracy.