OCE North America v. Brazeau, 2010 U.S. Dist. LEXIS 25523 (N.D. Ill. Mar. 18, 2010)

Plaintiff sought to close an evidentiary gap in its trade secret case against defendant by filing a motion for sanctions and an adverse inference based on defendant’s admitted failure to save his instant messages. The court found that defendant had used his employer’s instant messaging system and did not save the messages until well after suit was filed. “Thus, the evidence shows that defendant had, and breached, a duty to preserve those messages.” Id. at *18.

However, the court found that defendant did not act in bad faith. First, defendant testified and claimed that there was no way to save his instant messages. Next he testified that the messages were in fact saved on company servers, just as emails were saved and once he learned that he could change default settings to save the messages, he did so. The Court ruled that because Plaintiff had not offered any evidence that defendant had knowledge that the Instant Messages were not being saved, plaintiff had failed to “prove that defendant’s actions were intentional, reckless or unreasonable.” Id.

In addition, an adverse inference was inappropriate because the existing 55,000 pages of documents produced by producer indicated that plaintiff had suffered little harm. The court stated that the evidence provided “scant evidence of misappropriation.” Therefore, “[g]iven the circumstances, it would be unreasonable…to infer that the missing messages ‘contained the ‘smoking gun’ . . . evidence’ of misappropriation.” Id. at *19.

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