Rimkus Consulting Group, Inc. v. Cammarata

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

Spoliation of evidence — particularly of electronically stored information — has assumed a level of importance in litigation that raises grave concerns. Spoliation allegations and sanctions motions distract from the merits of a case, add costs to discovery, and delay resolution. The frequency of spoliation allegations may lead to decisions about preservation based more on fear of potential future sanctions than on reasonable need for information. Much of the recent case law on sanctions for spoliation has focused on failures by litigants and their lawyers to take adequate steps to preserve and collect information in discovery.

1

The spoliation allegations in the present case are different. They are allegations of willful misconduct: the intentional destruction of emails and other electronic information at a time when they were known to be relevant to anticipated or pending litigation. The alleged spoliators are the plaintiffs in an earlier-filed, related case and the defendants in this case. The allegations include that these parties — referred to in this opinion as the defendants — concealed and delayed providing information in discovery that would have revealed their spoliation. The case law recognizes that such conduct is harmful in ways that extend beyond the parties’ interests and can justify severe sanctions.

2

Given the nature of the allegations, it is not surprising that the past year of discovery in this case has focused on spoliation. The extensive record includes evidence that the defendants intentionally deleted some emails and attachments after there was a duty to preserve them. That duty arose because the defendants were about to file the related lawsuit in which they were the plaintiffs. The individuals who deleted the information testified that they did so for reasons unrelated to the litigation. But the individuals gave inconsistent testimony about these reasons and some of the testimony was not supported by other evidence. The record also includes evidence of efforts to conceal or delay revealing that emails and attachments had been deleted. There is sufficient evidence from which a reasonable jury could find that emails and attachments were intentionally deleted to prevent their use in anticipated or pending litigation.

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The record also shows that much of what was deleted is no longer available. But some of the deleted emails were recovered from other sources. While some of the recovered deleted emails were adverse to the defendants’ positions in this litigation, some were favorable to the defendants. The record also shows that despite the deletions of emails subject to a preservation duty, there is extensive evidence available to the plaintiff to prosecute its claims and respond to the defenses. These and other factors discussed in more detail below lead to the conclusion that the most severe sanctions of entering judgment, striking pleadings, or imposing issue preclusion are not warranted. Instead, the appropriate sanction is to allow the jux-y to hear evidence of the defendants’ conduct-including deleting emails and attachments and providing inaccurate or inconsistent testimony about them-and to give the jury a fox-m of adverse inference instruction. The instruction will inform the jury that if it finds that 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, the plaintiff will be awarded the fees and costs it reasonably incurred in identifying and revealing the spoliation and in litigating the consequences.

The opinion first sets out the pending motions. Before analyzing the spoliation allegations, related sanctions motions, and the summary judgment motions (which are also impacted by the spoliation allegations), the opinion sets out some of the analytical issues that spoliation sanctions raise. The relevant factual and procedural history is then set out and the evidence on breach of the duty to preserve, the degree of culpability, relevance, and prejudice is examined. The opinion then analyzes the evidence to determine the appropriate response.

The defendants’ motion for summary judgment based on claim and issue preclusion arising from the related, earlier-filed, state-law case are then analyzed in detail. That motion is denied in part because of the spoliation and withholding of evidence relevant to that case. Finally, the opinion examines the parties’ cross-motions for summary judgment on the defendants’ counterclaims for attorneys’ fees.

The opinion results in narrowing and defining the issues to be tried. A pretrial conference is set for February 26, 2010, at 10:00 a.m. to set a schedule for completing any remaining pretrial work and a trial date.

I. The Pending Motions

In November 2006, Rimkus Consulting Group, Inc. (“Rimkus”) was sued in Louisiana state court by Nickie G. Cammarata and Gary Bell, who had just resigned from the Rimkus office in Louisiana. Cammarata, Bell, and other ex-Rimkus employees had begun a new company, U.S. Forensic, L.L.C., to compete with Rimkus in offering investigative and forensic engineering services primarily for insurance disputes and litigation. In the Louisiana suit, Cammarata and Bell sought a declaratory judgment that the forum-selection, choice-of-law, noncompetition, and nonsolicitation provisions in agreements they had signed with Rimkus were unenforceable. In January and February 2007, Rimkus sued Cammarata and Bell in separate suits in Texas, alleging that they breached the noncompetition and nonsolicitation covenants in their written employment agreements and that they used Rimkus’s trade secrets and proprietary information in setting up and operating U.S. Forensic. U.S. Forensic is a defendant in the

Cammarata

case. The Texas

Cammarata

and

Bell

cases were consolidated in this court. (Docket Entry Nos. 211, 216).

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Two sets of motions are pending.

3

One set is based on Rimkus’s allegations that the defendants spoliated evidence. Rimkus moves for sanctions against the defendants and their counsel and asks that they be held in contempt. (Docket Entry Nos. 313, 314). Rimkus alleges that the defendants and their counsel “conspiratorially engaged” in “wholesale discovery abuse” by destroying evidence, failing to preserve evidence after a duty to do so had arisen, lying under oath, failing to comply with court orders, and significantly delaying or failing to produce requested discovery. (Docket Entry No. 313 at 1). Rimkus asks this court to strike the defendants’ pleadings and to enter a default judgment against them or give an adverse inference jury instruction. Rimkus also seeks monetary sanctions in the form of the costs and attorneys’ fees it incurred because of the defendants’ discovery abuses.

In response, the defendants acknowledge that they did not preserve “some arguably relevant emails” but argue that Rimkus cannot show prejudice because the missing emails “would be merely cumulative of the evidence already produced.” (Docket Entry No. 345 at 6). Rimkus filed supplements to its motions for contempt and sanctions, (Docket Entry Nos. 342, 343, 410, 414, 429, 431, 439, 445), and the defendants responded, (Docket Entry No. 350, 435).

4

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The second set of motions is based on the defendants’ assertion that they are entitled to summary judgment on the merits based on the preclusive effects of the judgment and rulings they obtained in the lawsuit they filed in the Louisiana state court before Rimkus sued them in Texas. (Docket Entry No. 309). The defendants argue that the claims in this Texas suit should be dismissed under

res judicata, or

in the alternative, that they are entitled to judgment as a matter of law on Rimkus’s claims for misappropriation of trade secrets, tortious interference, unfair competition, civil conspiracy, disparagement, and breach of fiduciary duty.

(Id.).

Cammarata also moved for summary judgment on his counterclaim for attorneys’ fees under Texas Business & Commerce Code § 15.51(c).

(Id.).

Rimkus responded, (Docket Entry Nos. 321, 324), the defendants replied, (Docket Entry No. 349), Rimkus filed a surreply, (Docket Entry No. 353), and several supplemental responses, (Docket Entry Nos. 362, 374, 394, 410, 429, 439, 445), and the defendants filed supplemental replies, (Docket Entry Nos. 376, 377). Rimkus argues that preclusion does not apply and that the summary judgment evidence reveals multiple disputed fact issues that preclude summary judgment on the merits of its claims.

Rimkus moved for partial summary judgment on the defendants’ counterclaims for attorneys’ fees under Texas Business & Commerce Code § 15.51(C). (Docket Entry Nos. 302, 305). The defendants responded, (Docket Entry Nos. 317, 322), and Rimkus replied, (Docket Entry No. 352). Rimkus also moved to extend the pretrial motions deadline, asserting that an extension is warranted because discovery is incomplete. (Docket Entry No. 306). The defendants responded, (Docket Entry No. 323), and Rimkus replied, (Docket Entry No. 351).

Both sets of motions are addressed in this memorandum and opinion. Based on a careful review of the pleadings; the motions, responses, and replies; the parties’ submissions; the arguments of counsel; and the applicable law, this court grants in part and denies in part Rimkus’s motions for sanctions. An adverse inference instruction on the deletion of emails and attachments will be given to the jury at trial. The motion for contempt is denied as moot because it seeks relief that would be duplicative of the sanctions. Rimkus is also awarded the reasonable attorneys’ fees and costs it incurred in investigating the spoliation, including fees and costs for obtaining emails through third-party subpoenas, taking additional depositions, and filing and responding to motions on sanctions.

As to the summary judgment motions, this court denies Rimkus’s motion to extend the motions-filing deadline, grants in part and denies in part the defendants’ motion for summary judgment based on preclusion (based in part on spoliation that concealed and delayed producing relevant information in the Louisiana case), and grants Rimkus’s motions for partial summary judgment on the defendants’ counterclaims for attorneys’ fees. Summary judgment is granted dismissing Rimkus’s claims for disparagement, tortious interference, and damages for breach of the noncompetition and nonsolicitation provisions. Summary judgment is denied on Rimkus’s claims for misappropriation of trade secrets, breach of fiduciary duty to the extent it is based on misappropriation, unfair competition, and civil conspiracy. With respect to the counterclaim for attorneys’ fees, Cammarata’s motion for summary judgment is denied and Rimkus’s motions for summary judgment are granted.

The reasons for these rulings are explained in detail below.

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II. The Framework for Analyzing Spoliation Allegations

In her recent opinion in

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC,

No. 05 Civ. 9016, 685 F.Supp.2d 456 , 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), Judge Scheindlin has again done the courts a great service by laying out a careful analysis of spoliation and sanctions issues in electronic discovery.

5

The focus of

Pension Committee

was on when negligent failures to preserve, collect, and produce documents — including electronically stored information — in discovery may justify the severe sanction of a form of adverse inference instruction. Unlike

Pension Committee,

the present case does not involve allegations of negligence in electronic discovery. Instead, this case involves allegations of intentional destruction of electronically stored evidence. But there are some common analytical issues between this case and

Pension Committee

that deserve brief discussion.

A. The Source of Authority to Impose Sanctions for Loss of Evidence

Allegations of spoliation, including the destruction of evidence in pending or reasonably foreseeable litigation, are addressed in federal courts through the inherent power to regulate the litigation process if the conduct occurs before a case is filed or if, for another reason, there is no statute or rule that adequately addresses the conduct.

6

See Chambers v. NASCO, Inc.,

501 U.S. 32, 43-46 , 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991);

Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc.,

2 F.3d 1397, 1408 (5th Cir.1993) (summary calendar). If an applicable statute or rule can adequately sanction the conduct, that statute or rule should ordinarily be applied, with its attendant limits, rather than a more flexible or expansive “inherent power.”

Chambers,

501 U.S. at 50 , 111 S.Ct. 2123 ;

see Klein v. Stahl GMBH & Co. Maschinefabrik,

185 F.3d 98, 109 (3d Cir.1999) (“[A] trial court should consider invoking its inherent sanctioning powers only where no sanction established by the Federal Rules or a pertinent statute is ‘up to the task’ of remedying the damage done by a litigant’s malfeasance....”);

Natural Gas Pipeline Co. of Am.,

2 F.3d at 1410 (“When parties or their attorneys engage in bad faith conduct, a court should ordinarily rely on the Federal Rules as the basis for sanctions.”).

When inherent power does apply, it is “interpreted narrowly, and its reach is limited by its ultimate source — the court’s need to orderly and expeditiously perform its duties.”

Newby v. Enron Corp.,

302 F.3d 295, 302 (5th Cir.2002) (footnote omitted) (citing

Chambers,

501 U.S. at 43 , 111 S.Ct. 2123 ). In

Chambers ,

the inherent power was linked to the bad-faith conduct that affected the litigation.

See

501 U.S. at 49 , 111 S.Ct. 2123 . If inherent power, rather than a specific rule or statute, provides the source of the sanctioning authority, under

Chambers ,

it may be limited to a degree of culpability greater than negligence.

Rule 37(b)(2)(A) provides;

If a party or a party’s officer, director, or managing agent-or a witness designated -under Rule 30(b)(6) or 31(a)(4)-

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fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated ' matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(A). In addition, a court has statutory authority to impose costs, expenses, and attorneys’ fees on “any attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927 .

Rule 37(e) applies to electronically stored information lost through “routine good-faith operation” of an electronic information system rather than through intentional acts intended to make evidence unavailable in litigation. Rule 37(e) states: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e).

The alleged spoliation and proposed sanctions in this case implicate the court’s inherent authority, including for spoliation occurring before this case was filed or before discovery orders were entered and Rule 37, for failures to comply with discovery orders.

B. When Deletion Can Become Spoliation

Spoliation is the destruction or the significant and meaningful alteration of evidence.

See generally

The Sedona Conference, The Sedona Conference Glossary: E-discovery

&

Digital Information Management (Second Edition) 48 (2007) (“Spoliation is the destruction of records or properties, such as metadata, that may be relevant to ongoing or anticipated litigation, government investigation or audit.”). Electronically stored information is routinely deleted or altered and affirmative steps are often required to preserve it. Such deletions, alterations, and losses cannot be spoliation unless there is a duty to preserve the information, a culpable breach of that duty, and resulting prejudice.

Generally, the duty to preserve arises when a party “ ‘has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.’ ”

7

Generally, the duty to preserve extends to documents or tangible things (defined by Federal Rule of

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Civil Procedure 34) by or to individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.”

See, e.g., Zubulake IV,

220 F.R.D. at 217-18 (footnotes omitted).

These general rules are not controversial. But applying them to determine when a duty to preserve arises in a particular case and the extent of that duty requires careful analysis of the specific facts and circumstances. It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight. Whether preservation or discovery conduct is acceptable in a case depends on what is

reasonable,

and that in turn depends on whether what was done — or not done— was

proportional

to that case and consistent with clearly established applicable standards.

8

As Judge Scheindlin pointed out in

Pension Committee,

that analysis depends heavily on the facts and circumstances of each case and cannot be reduced to a generalized checklist of what is acceptable or unacceptable.

9

Applying a categorical approach to sanctions issues is also difficult, for similar reasons. Determining whether sanctions are warranted and, if so, what they should include, requires a court to consider both the spoliating party’s culpability and the level of prejudice to the party seeking discovery. Culpability can range along a continuum from destruction intended to make evidence unavailable in litigation to inadvertent loss of information for reasons unrelated to the litigation. Prejudice can range along a continuum from an inability to prove claims or defenses to little or no impact on the presentation of proof. A court’s response to the loss of evidence depends on both the degree of culpability and the extent of prejudice. Even if there is intentional destruction of potentially relevant evidence, if there is no prejudice to the opposing party, that influences the sanctions consequence. And even if there is an inadvertent loss of evidence but severe prejudice to the opposing party, that too will influence the appropriate response, recognizing that sanctions (as opposed to other remedial steps) require some degree of culpability.

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C. Culpability

As a general rule, in this circuit, the severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of “bad faith.”

Condrey v. SunTrust Bank of Ga.,

431 F.3d 191, 203 (5th Cir.2005);

King v. Ill. Cent. R.R.,

337 F.3d 550, 556 (5th Cir.2003);

United States v. Wise,

221 F.3d 140, 156 (5th Cir.2000). “ ‘Mere negligence is not enough’ to warrant an instruction on spoliation.”

Russell v. Univ. of Tex. of Permian Basin,

234 Fed.Appx. 195, 208 (5th Cir.2007) (unpublished) (quoting

Vick v. Tex. Employment Comm’n,

514 F.2d 734, 737 (5th Cir.1975);

see also King,

337 F.3d at 556 ) (“King must show that ICR acted in ‘bad faith’ to establish that it was entitled to an adverse inferertce.”)

Vick v. Tex. Employment Comm’n,

514 F.2d at 737 (“The adverse inference to be drawn from destruction of records is predicated on bad conduct of the defendant. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.” (quotation omitted)).

Other circuits have also held negligence insufficient for an adverse inference instruction. The Eleventh Circuit has held that bad faith is required for an adverse inference instruction.

10

The Seventh, Eighth, Tenth, and D.C. Circuits also appear to require bad faith.

11

The First, Fourth, and Ninth Circuits hold that bad faith is not essential to imposing severe sanctions if there is severe prejudice, although the cases often emphasize the presence of bad faith.

12

In the Third Circuit,

*615

the courts balance the degree of fault and prejudice.

13

The court in

Pension Committee

imposed a form of adverse inference instruction based on a finding of gross negligence in preserving information and in collecting it in discovery.

14

The court applied case law in the Second Circuit, including the language in

Residential Funding Corp. v. DeGeorge Financial Corp.,

306 F.3d 99, 108 (2d Cir.2002), stating that “[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence.” That language has been read to allow severe sanctions for negligent destruction of evidence.

See, e.g., Rogers v. T.J. Samson Cmty. Hosp.,

276 F.3d 228, 232 (6th Cir.2002);

Lewis v. Ryan,

261 F.R.D. 513, 521 (S.D.Cal.2009) (noting that California district courts had followed the Second Circuit’s approach in

Residential

Funding). In the Fifth Circuit and others, negligent as opposed to intentional, “bad faith” destruction of evidence is not sufficient to give an adverse inference instruction and may not relieve the party seeking discovery of the need to show that missing documents are relevant and their loss prejudicial. The circuit differences in the level of culpability necessary for an adverse inference instruction limit the applicability of the

Pension Committee

approach. And to the extent sanctions are based on inherent power, the Supreme Court’s decision in

Chambers

may also require a degree of culpability greater than negligence.

D. Relevance and Prejudice: The Burden of Proof

It is well established that a party seeking the sanction of an adverse inference instruction based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed;

*616

(2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

See Zubulake v. UBS Warburg LLC (Zubulake IV),

220 F.R.D. 212, 220 (S.D.N.Y.2003). The “relevance” and “prejudice” factors of the adverse inference analysis are often broken down into three subparts: “(1) whether the evidence is relevant to the lawsuit; (2) whether the evidence would have supported the inference sought; and (3) whether the nondestroying party has suffered prejudice from the destruction of the evidence.”

Consol. Aluminum Corp. v. Alcoa, Inc.,

244 F.R.D. 335, 346 (M.D.La.2006) (citing

Concord Boat Corp. v. Brunswick Corp.,

No. LR-C-95-781, 1997 WL 33352759 , at *7 (E.D.Ark. Aug. 29, 1997)). Courts recognize that “[t]he burden placed on the moving party to show that the lost evidence would have been favorable to it ought not be too onerous, lest the spoliator be permitted to profit from its destruction.”

Chan v. Triple 8 Palace, Inc.,

No. 03CIV6048(GEL)(JCF), 2005 WL 1925579 , at *7 (S.D.N.Y. Aug. 11, 2005).

Pension Committee

recognized the difficulty and potential for unfairness in requiring an innocent party seeking discovery to show that information lost through spoliation is relevant and prejudicial. Those concerns are acute when the party seeking discovery cannot replace or obtain extrinsic evidence of the content of deleted information. But in many cases — including the present case — there are sources from which at least some of the allegedly spoliated evidence can be obtained. And in many cases — including the present case — the party seeking discovery can also obtain extrinsic evidence of the content of at least some of the deleted information from other documents, deposition testimony, or circumstantial evidence.

Courts recognize that a showing that the lost information is relevant and prejudicial is an important check on spoliation allegations and sanctions motions. Courts have held that speculative or generalized assertions that the missing evidence would have been favorable to the party seeking sanctions are insufficient.

15

By contrast, when

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the evidence in the case as a whole would allow a reasonable fact finder to conclude that the missing evidence would have helped the requesting party support its claims or defenses, that may be a sufficient showing of both relevance and prejudice to make an adverse inference instruction appropriate.

16

In

Pension Committee,

the court followed the approach that even for severe sanctions, relevance and prejudice may be presumed when the spoliating party acts in a grossly negligent manner.

Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC,

No. 05 Civ. 9016, 685 F.Supp.2d 456, 467-68 , 2010 WL 184312, at *5 (S.D.N.Y. Jan. 15, 2010). The presumption of relevance and prejudice is not mandatory.

Id.

at 467-68 , at *5. The spoliating party may rebut the presumption by showing that the innocent party had access to the evidence allegedly destroyed or that the evidence would not have been helpful to the innocent party.

Id.

When the level of culpability is “mere” negligence, the presumption of relevance and prejudice is not available; the

Pension Committee

court imposed a limited burden on the innocent party to present some extrinsic evidence.

Id.

The Fifth Circuit has not explicitly addressed whether even bad-faith destruction of evidence allows a court to presume that the destroyed evidence was relevant or its loss prejudicial. Case law in the Fifth Circuit indicates that an adverse inference instruction is not proper unless there is a showing that the spoliated evidence would have been relevant.

See Condrey v. SunTrust Bank of Ga.,

431 F.3d 191 , 203 & n. 8 (5th Cir.2005) (holding that an adverse inference was not appropriate because there was no evidence of bad faith but also noting that even if bad faith had been shown, an adverse inference would have been improper because relevance was not shown);

Escobar v. City of Houston,

No. 04-1945, 2007 WL 2900581 , at *17-18 (S.D.Tex. Sept. 29, 2007) (denying an adverse inference instruction for destruction of emails in a police department following a shooting because the plaintiffs failed to show bad faith and relevance). One opinion states that bad-faith destruction of evidence “alone is sufficient to demonstrate relevance.”

See Consol. Aluminum Corp. v. Alcoa, Inc.,

244 F.R.D. 335 , 340 n. 6 (M.D.La.2006). But that opinion also went on to state that “before an adverse inference may be drawn, there must be some showing that there is in fact a nexus between the proposed inference and the information contained in the lost evidence” and that “some extrinsic evidence of the content of the emails is necessary for the trier of fact to be able to determine in what respect and to what extent the emails would have been detrimental.”

Id.

at 346 . In the present case, the party seeking sanctions for deleting emails after a duty to preserve had arisen presented evidence of their contents. The evidence included some recovered deleted emails and circum

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stantial evidence and deposition testimony relating to the unrecovered records. There is neither a factual nor legal basis, nor need, to rely on a presumption of relevance or prejudice.

E. Remedies: Adverse Inference Instructions

Courts agree that a willful or intentional destruction of evidence to prevent its use in litigation can justify severe sanctions. Courts also agree that the severity of a sanction for failing to preserve when a duty to do so has arisen must be proportionate to the culpability involved and the prejudice that results. Such a sanction should be no harsher than necessary to respond to the need to punish or deter and to address the impact on discovery.

17

“[T]he judge [imposing sanctions] should take pains neither to use an elephant gun to slay a mouse nor to wield a cardboard sword if a dragon looms. Whether deterrence or compensation is the goal, the punishment should be reasonably suited to the crime.”

Anderson v. Beatrice Foods Co.,

900 F.2d 388, 395 (1st Cir.1990). A measure of the appropriateness of a sanction is whether it “restore[s] the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.”

West v. Goodyear Tire & Rubber Co.,

167 F.3d 776, 779 (2d Cir.1999) (quotation omitted);

see also Silvestri v. Gen. Motors Corp.,

271 F.3d 583, 590 (4th Cir.2001) (“[T]he applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” (quoting

West,

167 F.3d at 779 )).

Extreme sanctions — dismissal or default — have been upheld when “the spoliator’s conduct was so egregious as to amount to a forfeiture of his claim” and “the effect of the spoliator’s conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim.”

Sampson v. City of Cambridge, Maryland,

251 F.R.D. 172, 180 (D.Md.2008) (quoting

Silvestri,

271 F.3d at 593 );

see Leon v. IDX Sys. Corp.,

464 F.3d 951, 959 (9th Cir.2006) (“The prejudice inquiry ‘looks to whether the [spoiling party’s] actions impaired [the non-spoiling party’s] ability to go to trial or threatened to interfere with the rightful decision of the case.’ ” (alteration in original) (quoting

United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d

600, 604 (9th Cir.1988))).

When a party is prejudiced, but not irreparably, from the loss of evidence that was destroyed with a high degree of culpability, a harsh but less extreme sanction than dismissal or default is to permit the fact finder to presume that the destroyed evidence was prejudicial.

18

Such a sanction has been imposed for the intentional destruction of electronic evidence.

19

Al

*619

though adverse inference instructions can take varying forms that range in harshness, and although all such instructions are less harsh than so-called terminating sanctions, they are properly viewed as among the most severe sanctions a court can administer.

In

Pension Committee,

the court stated that it would give a jury charge for the grossly negligent plaintiffs that: (1) laid out the elements of spoliation; (2) instructed the jury that these plaintiffs were grossly negligent in performing discovery obligations and failed to preserve evidence after a preservation duty arose; (3) told the jury that it could presume that the lost evidence was relevant and would have been favorable to the defendant; (4) told the jury that if they declined to presume that the lost evidence was relevant or favorable, the jury’s inquiry into spoliation was over; (5) explained that if the jury did presume relevance or prejudice, it then had to decide if any of the six plaintiffs had rebutted the presumption; and (6) explained the consequences of a rebutted and an unrebutted presumption.

20

The court

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noted that it was “important to explain that the jury is bound by the Court’s determination that certain plaintiffs destroyed documents after the duty to preserve arose” but that “the jury is not instructed that the Court has made any finding as to whether that evidence is

relevant

or whether its loss caused any

prejudice

to the [ ] Defendants.”

Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC,

No. 05 Civ. 9016, 685 F.Supp.2d 456 , 496 n. 251, 2010 WL 184312 , at *23 n. 251. The “jury must make these determinations because, if the jury finds both relevance and prejudice, it then may decide to draw an adverse inference in favor of the [] Defendants which could have an impact on the verdict,” and “[s]uch a finding is within the province of the jury not the court.”

Id.

As explained in more detail below, based on the record in this case, this court makes the preliminary findings necessary to submit the spoliation evidence and an adverse inference instruction to the jury. But the record also presents conflicting evidence about the reasons the defendants deleted the emails and attachments; evidence that some of the deleted emails and attachments were favorable to the defendants; and an extensive amount of other evidence for the plaintiff to use. As a result, the jury will not be instructed that the defendants engaged in intentional misconduct. Instead, the instruction will ask the jury to decide whether the defendants intentionally deleted emails and attachments to prevent their use in litigation. If the jury finds such misconduct, the jury must then decide, considering all the evidence, whether to infer that the lost information would have been unfavorable to the defendants. Rather than instruct the jury on the rebut-table presumption steps, it is sufficient to present the ultimate issue: whether, if the jury has found bad-faith destruction, the jury will then decide to draw the inference that the lost information would have been unfavorable to the defendants.

21

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III. Background

A. Factual and Procedural History

Rimkus is a forensic engineering contractor with its principal place of business in Houston, Texas. Founded in 1983, Rimkus has thirty offices in eighteen states and works across the country. Rimkus analyzes unexpected accidents and occurrences that cause damage to people or property, primarily in connection with insurance disputes or litigation, and provides reports and testimony.

In 1995, Rimkus hired Bell, a Louisiana resident, as a marketing representative. In October 1996, Rimkus hired Cammarata, also a Louisiana resident, as a full-time salaried employee, to provide forensic engineering services. Both Bell and Cammarata were hired at Rimkus’s office in Houston, Texas, where they signed an Employment Agreement. The Employment Agreement was between the “Company,” defined as Rimkus Consulting Group, Inc., and the “Employee,” defined as Bell or Cammarata. The Agreement’s noncom-petition provision stated as follows:

a. Employee will not, directly or indirectly, own, manage, finance, control or participate in the ownership, financing or control of, or be connected as a partner, principal, agent, employee, independent contractor, management advisor and/or management consultant with, or use or permit his name or resume to be used in connection with any business or enterprise performing consulting services similar to those which are carried on by the Company in the “Designated Geographic Area”. For the purposes of this Agreement “Designated Geographic Area” shall mean any standard metropolitan statistical area (or if a client is not located in a standard metropolitan statistical area, then the city, town or township in which such client is located and the counties or parishes contiguous thereto) in which a client or clients of the Company are located and from which such client or clients have engaged Company on not less than five (5) separate files or engagements during the five (5) calendar years proceeding termination of Employee’s employment with Company. If Company has received less than five (5) such assignments or engagements from a client in any Designated Geographic Area, then Employee shall be free to compete in such Designated Geographic Area.... This covenant against competition shall be construed as a separate covenant covering competition within the State of Texas, or in any other State where the Company, directly or indirectly, whether through itself or its representative or agents, conducts business; ... [.]

(Docket Entry No. 1, Ex. A at 4-5). The Agreement also contained a clause prohibiting posttermination solicitation of Rimkus’s employees and of Rimkus’s customers:

b. Employee agrees that after termination of employment with the Company, he will not, directly or indirectly, solicit, employ or in any other fashion, hire persons who are, or were, employees, officers or agents of the Company, until such person has terminated his employment with the Company for a period of eighteen (18) months;

c. Employee agrees, that for a period lasting until eighteen (18) months after termination of his employment, he will not at any time, directly or indirectly, solicit the Company’s eustomers[.]

(Id.

at 5). The Agreement stated that “any dispute or other proceeding to enforce the terms of this Agreement shall be

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adjudicated by a court of competent jurisdiction in Harris County, Texas” and that the “Agreement and all rights, obligations and liabilities arising hereunder shall be governed by, and construed and enforced in accordance with the laws of the State of Texas (excluding its conflicts of law provisions) applicable to contracts made and to be performed therein.”

(Id.

at 11).

Bell and Cammarata worked for Rimkus Consulting Group of Louisiana (“RCGL”), a wholly owned subsidiary of Rimkus. Both men worked in RCGL’s Metairie, Louisiana office. They received their paychecks and W-2 forms from RCGL but were provided access to Rimkus customer information, Rimkus business plans, Rimkus operations information, and Rimkus work for their clients.

In 2004, Bell became central region property manager and a vice-president of Rimkus. He was responsible for the area from Louisiana to the Canadian border. On July 14, 2005, Rimkus and Bell entered into a “Common Stock Purchase Agreement.” Under the Common Stock Purchase Agreement, Bell purchased 2,000 shares of Rimkus stock. The Agreement was between the “Corporation,” defined as Rimkus Consulting Group, Inc., and the “Shareholder,” defined as Bell. The Common Stock Purchase Agreement contained a noncompetition clause, which provided as follows:

Each Shareholder, recognizing that a covenant not to compete is required to protect the business interests of the Corporation, agrees that unless the Corporation consents in writing to the contrary, such Shareholder shall not engage directly or indirectly as an employee, agent, shareholder, officer, director, partner, sole proprietor or in any other fashion in a competing business in any of the geographic areas in which the Corporation is then conducting business, during his period of employment by the Corporation and for five (5) years after the Closing of the purchase transaction .... The covenant is in addition to any non-competition agreement contained in any employment agreement between each Shareholder and the Corporation. Each Shareholder has entered into an Employment Agreement with the Corporation which contains such a non-competition agreement. Shareholders and the Corporation agree that, for purposes of this Agreement, the non-competition provisions extending the period to a five-year period commencing with the date of any Terminating event will prevail over the period as specified in the Employment Agreement between each Shareholder and the Corporation.

(Docket Entry No. 321, Ex. C at 10-11).

The Common Stock Purchase Agreement also addressed confidential information:

[Cjonfidential information pertaining to the Corporation’s customers and business and marketing methods, including, but not limited to, customer or client lists and trade secrets which may be available to them is valuable, special and unique except as such may be in the public domain. Accordingly, each Shareholder hereby agrees that he will not at any time disclose any of such information to any person, firm, corporation, association or other entity for any reason or purpose whatsoever or make use in any other way to his advantage of such information.

(Id.

at 11). The Agreement also stated that Rimkus and Bell “each agree[d] to refrain from any conduct, by word or act, that will reflect negatively on the character or conduct of the other.”

(Id.

at 10).

On September 27, 2006, Bell resigned from Rimkus effective October 31. Cammarata resigned on November 15, 2006. On that date, Bell, Cammarata, and Mike

*623

DeHarde, another employee who had also worked at RCGL in Louisiana, formed and immediately began to work for U.S. Forensic. Like Rimkus, U.S. Forensic provides investigative and forensic engineering services, primarily to determine the cause, origin, and extent of losses from failures and accidents. The parties do not dispute that U.S. Forensic competes with Rimkus in providing investigative and forensic engineering services, although U.S. Forensic does not offer as broad a range of services as Rimkus. U.S. Forensic currently has offices in Louisiana, Mississippi, Florida, and Tennessee and employs engineers registered in twenty states.

In this litigation, Rimkus alleges that Bell breached his fiduciary duty as an officer of Rimkus by preparing to form U.S. Forensic before he left Rimkus in October 2006. Rimkus alleges that Bell, Cammarata, and DeHarde planned and made preparations to set up U.S. Forensic and compete against Rimkus long before they resigned. The record shows that Bell registered the domain name “www. usforensic.com” on February 28, 2006. (Docket Entry No. 321, Ex. F). During the summer of 2006, Bell met with a lawyer, contracted with a company to host a web site, filed a trademark application, and prepared a corporate logo for U.S. Forensic.

(Id.,

Exs. G, H, R, S). On October 1, 2006, Bell created U.S. Forensic résumés for himself, Cammarata, and DeHarde.

(Id.,

Ex. I). Corporate formation documents for U.S. Forensic were filed with the Louisiana Secretary of State on October 5, 2006.

(Id.,

Ex. J). On October 13, 2006, Bell’s wife filed an application for U.S. Forensic to practice engineering in the State of Louisiana.

(Id.,

Ex. T).

Bell testified in his deposition that he did not agree to form a new company until after he had resigned from Rimkus.

(Id.,

Ex. D, Deposition of Gary Bell, at 423:13-:18). Bell testified that he told De-Harde and Cammarata he was leaving and “they said they were leaving, and — and so we talked about maybe we should do something together. And, I — I think, it was that vague, you know, maybe we should do something together, maybe we talked a little bit about it, you know, after hours or something here, might have a phone call about it, and — but no real — once—once I left, that’s when we kind of really kicked it into high gear.”

(Id.

at 424:13-:22). On September 30, 2006, Bell emailed Cammarata, DeHarde, and Bill Janowsky, an engineer at another Louisiana firm, to inform them that Rimkus had made him some lucrative offers to entice him to retract his resignation but that he would go forward with the plan to form U.S. Forensic if they were still committed to doing so. (Docket Entry No. 324, Ex. KK). Bell stated, “Without each of you, it will not be worth leaving. If one guy falls [sic] to come along, the whole thing will be completely different.”

(Id.).

He continued:

We have a dream team. I really believe that Rimkus is making these ridiculous offers more because of who I could possibly recruit than anything I can actually do myself. But fear not. I have committed to each of you and for that reason alone I would not abandon you in our dream. I just wanted to give each of you one last chance to bail with no hard feelings. Tell me now or meet me on Ridgelake on November 15 with your sleeves rolled up.

(Id.).

The record does not include emails responding to this message. Rimkus alleges that this email and any responses were not produced in discovery because the defendants intentionally deleted them.

On November 11, 2006, Bell emailed Cammarata, DeHarde, and Janowsky

22

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asking for their names, addresses, and social security numbers to set up a payroll tax account for U.S. Forensic.

(Id.,

Ex. B). Bell stated in the email that he had received his COBRA package from Rimkus along with a form letter stating that Rimkus expected him to honor his agreements, including his noncompetition covenant.

(Id.).

Bell continued: “However, the designated geographic area is the MSA of any city in which Rimkus has received assignments from in the five years prior. We are in good shape and I’ll bet they know it. We need to serve them on Monday to prevent them from filing in Texas. Larry [Demmons] will correct the pleading and get it in — then I call Markham.

23

Damn the torpedoes — full speed ahead!”

(IcL).

Rimkus argues that the defendants’ plan to file a preemptive lawsuit is evidence of a bad-faith attempt to prevent Rimkus from obtaining relief in Texas under Texas law. The presence of the plan is important to the duty to preserve relevant records.

Bell responds that none of these actions breached his fiduciary duty to Rimkus. Bell contends that even a fiduciary relationship between an officer and the corporation he serves does not preclude the officer from preparing for a future competing business venture. Rimkus acknowledges that general preparations for future competition do not breach fiduciary duty but argues that Bell’s preparatory actions, combined with his misappropriation of trade secrets, solicitation of Rimkus’s customers, and luring away Rimkus’s employees — all while still employed by Rimkus— breached the fiduciary duty he owed as a Rimkus corporate officer.

Rimkus alleges that both Bell and Cammarata misappropriated client lists, pricing information, and other confidential Rimkus business information to which they had access while working at Rimkus and that they used this information to solicit Rimkus clients for U.S. Forensic. The record shows that Bell and Cammarata emailed some Rimkus clients in November and December 2006. Some of these emails refer to prior work done for the clients while Bell and Cammarata worked for Rimkus. All these emails offer U.S. Forensic as an alternative to Rimkus. It appears that the emails sent to Rimkus clients soliciting business for U.S. Forensic were first produced by an internet service provider pursuant to a third-party subpoena. The defendants either did not produce such emails or delayed doing so until late in the discovery.

The parties vigorously dispute how Bell and Cammarata obtained the contact information necessary to send these solicitation emails to Rimkus clients. Bell and Cammarata assert that they did not misappropriate confidential client or other information from Rimkus. Cammarata testified at a hearing that he did not download or print any Rimkus client list and did not take any written client list with him when he left. Cammarata submitted an affidavit stating that when he resigned from Rimkus, he did not take any electronic or paper copies of Rimkus client lists or client-contact information and that he has “never used any Rimkus client lists or client contact information in [his] work for U.S. Forensic.” (Docket Entry No. 309, Ex. Y, Affidavit of Nick Cammarata ¶¶ 11-12). Bell also submitted an affidavit stating that when he resigned from Rimkus, he did not take any electronic or paper copies of Rimkus pricing information, investigative methods, report formats, oper

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ations manual, business plan, client lists, or client-contact information.

(Id.,

Ex. V, Affidavit of Gary Bell ¶¶ 39-49). Bell stated that he has “never used any Rimkus client lists or client contact information in [his] work for U.S. Forensic.”

(Id.

¶ 40). Bell also stated that he did not use his memory of Rimkus client-contact information to solicit business for U.S. Forensic.

(Id.

¶ 41). Bell stated in his affidavit that he has used only publicly available information, primarily from the Casualty Adjuster’s Guides and the internet, to identify people to contact to solicit potential clients for U.S. Forensic.

(Id.).

The Casualty Adjuster’s Guide is a compilation of the names, addresses, phone numbers, and email addresses of insurance and adjusting companies and certain employees. A separate guide is published for different geographical regions in the United States. Each guide is updated annually. Other publicly available guides, including “The Claims Pages,” the “Texas Legal Directory,” and the “Louisiana Blue Book,” contain similar information. Bell stated in his affidavit that when he formed U.S. Forensic, he “used the Casualty Adjusters Guide, the Louisiana Blue Book and other publicly available publications to find the names, addresses, phone numbers and email addresses of potential clients for U.S. Forensic.”

(Id.

¶ 13). Bell also stated in his affidavit that he obtained contact information of potential clients for U.S. Forensic when he attended industry conventions and seminars.

(Id.

¶ 15). Bell testified in his deposition about his primary sources for new client-contact information: “I would say, primarily, the internet was my — the—the main thing that I used right off the bat. As I got names, or as I called people and got other information, it would grow from there. But you can find all the adjusters available online, you can find them in the Casualty Adjusters book, you can find them wherever. It depends on where I’m trying to get business, maybe. But the internet is the best source, it’s the most complete source. You can specify your search to — you know, to insurance adjusters that are working for the company, who are not working for the company, you can get insurance claims office by state, you can adjusters’ license by state.” (Docket Entry No. 314, Ex. 6, Deposition of Gary Bell, Vol. 1 at 59:5 — :21). Bell submitted an example of the sources of client-contact information available on the internet. (Docket Entry No. 309, Ex. V-8 pts. 1, 2).

Rimkus asserts that the testimony by Bell and Cammarata describing how they obtained client-contact information and denying that they took Rimkus confidential information when they resigned is false. Rimkus contends that Bell and Cammarata could not have obtained contact information for the individuals they emailed to solicit business unless they took the information with them when they left Rimkus. Rimkus points to an email Bell sent on December 10, 2006, in which he asked for a copy of the 2006 Louisiana Casualty Adjuster’s Guide because he did not yet have one. (Docket Entry No. 324, Ex. E). Rimkus also points to an October 1, 2006 email forwarded to Bell from an employee at Rimkus. This email contained contact information for insurance adjusters at Lexington Insurance, a Rimkus client. (Docket Entry No. 321, Ex. Q).

24

And, according to Rimkus, many of the insurance adjusters Bell and Cammarata contacted in November and December 2006

*626

are not listed in the Louisiana Casualty Adjuster’s Guide.

In late August 2009, Rimkus submitted information showing that Gary Bell maintained a previously undisclosed personal email address to which he forwarded information from Rimkus. In his March 8, 2009 deposition, Bell testified that the only email addresses he used during 2006 were glb@rimkus.com and garylbell@bellsouth. net. (Docket Entry No. 314, Deposition of Gary Bell, Vol. 2 at 247:10-:19). The deposition continued:

Q: Are there any others?

A: I don’t believe so.

Q: You don’t have like a Hotmail address?

A: (Shakes head)

Q: A Gmail address?

A: No. I don’t believe so.

(Id.

at 247:20-248:1).

In August 2009, Rimkus completed a forensic analysis of its own computer system and discovered a “cookie” showing that on September 30, 2006-three days after Bell officially resigned from Rimkus but before his last day of work-Bell accessed his BellSouth email address from his Rimkus work computer to forward documents to the email address garylbell@ gmail.com. Rimkus filed the forwarded documents under seal. These documents are income statements for Rimkus’s Pensacola, New Orleans, Lafayette, and Indianapolis offices, as well as an employee break-even analysis. The income statements contain the August 2006 budget for each of those offices, including revenues, administrative costs, sales and marketing costs, and the total net income or loss. Rimkus asserts that these documents are confidential and accessible only by certain executive employees. Rimkus argues that the September 30, 2006 email Bell forwarded to himself is evidence of trade secret misappropriation. At a discovery hearing held on September 2, 2009, this court allowed Rimkus to subpoena Google, an email provider, to obtain emails Bell sent and received using the email address “garylbell@gmail.com.”

On November 15, 2006 — the date Cammarata resigned from Rimkus and U.S. Forensic began operating — Bell and Cammarata sued Rimkus in Louisiana state court, seeking a declaratory judgment that the forum-selection, choice-of-law, noncom-petition, and nonsolicitation provisions in the Employment Agreement and the non-competition provision in the Common Stock Purchase Agreement were unenforceable. In January 2007, Rimkus sued Cammarata in this court, seeking to enjoin Cammarata from competing with Rimkus during the period set out in the Employment Agreement’s noncompetition provision, from soliciting Rimkus employees and customers, and from using Rimkus trade secrets. Rimkus also sought damages for Cammarata’s alleged breach of the Employment Agreement and misappropriation of trade secrets. (Docket Entry No. 1).

Rimkus sued Bell in Texas state court in February 2007, alleging breach of the covenants in the Common Stock Purchase Agreement. Bell removed to this court in March 2007. The suit against Bell,

Rimkus Consulting Group, Inc. v. Gary Bell,

Civ. A. No. H-07-910, was consolidated with the suit against Cammarata. (Docket Entry No. 211).

In the Louisiana state court suit Bell and Cammarata filed, the judge issued an order on March 26, 2007, stating that Louisiana law applied to their claims.

25

(Docket Entry No. 19, Ex. D). On July 26, 2007, the judge issued a final judgment stating that “pursuant to Louisiana law, the cove

*627

nant not to compete clauses contained in Paragraphs 8(a) and the non-solicitation of customer(s) clauses contained in Paragraphs 8(c) of the respective contracts are invalid and unenforceable.” (Docket Entry No. 71, Ex. H). The noncompetition clause in Bell’s Common Stock Purchase Agreement was, however, held to be enforceable. Both sides appealed.

On January 4, 2008, the Louisiana Fifth Circuit Court of Appeal reversed the trial court’s ruling on Bell’s Common Stock Purchase Agreement and held that the noncompetition clause in that Agreement was invalid and unenforceable. On March 25, 2008, the Louisiana Fifth Circuit Court of Appeal affirmed the trial court’s decision that Louisiana law applied to the parties’ agreements and that the Texas forum-selection and choice-of-law clauses and the noncompetition and nonsolicitation covenants in the Employment Agreement were unenforceable.

Bell v. Rimkus Consulting Group, Inc. of La.,

07-996 (La.App. 5 Cir. 3/25/08) ; 983 So.2d 927 . In holding that Louisiana law applied to the 1996 Employment Agreement despite the Texas choice-of-law clause, the Louisiana Court of Appeal stated:

Forum selection clauses will be upheld unless they contravene strong public policy of the forum in which the suit is brought. LA. C.C. art. 3450. LA. R.S. 23:921 A(2), a provision which was added by the legislature in 1999, is an expression of strong Louisiana public policy concerning forum selection clauses....

... Louisiana law expressly provides that conventional obligations are governed by the law of the state whose policies would be most seriously impaired if its law were not applied to the issue. Further, issues of conventional obligations may be governed by law chosen by the parties,

except to the extent that law contravenes the public policy of the state whose law would be applicable under La. C.C. art 3537.

As previously stated herein, Louisiana has a longstanding public policy to prohibit or severely restrict non-competition provisions in employment agreements which curtail an employee’s right to [ ] earn his livelihood. These agreements are in derogation of the common right, and they must be strictly construed against the party seeking their enforcement. Application of Texas law to this dispute would thwart Louisiana’s longstanding public policy and interest in this type of matter.

According to well established Louisiana law and jurisprudence, the forum selection and choice of law provisions contained in the 1995 and 1996 employment contracts are null and void. Thus, the agreements in this case are governed by Louisiana law.

Id.

at pp. 9-10; 983 So.2d at 932-33 (citations omitted).

26

On March 17, 2008, the

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Louisiana state trial court declared that the nonsolicitation-of-employees clause in the defendants’ Employment Agreements was “ambiguous and unenforceable.” (Docket Entry No. 105, Ex. D).

In this federal suit, Cammarata filed two motions to dismiss Rimkus’s claims for breach of the noncompetition and nonsolicitation provisions in the Employment Agreement. Cammarata based his motions to dismiss on the preclusive effect of the Louisiana state court ruling invalidating the noncompetition, nonsolicitation, forum-selection, and choice-of-law provisions in the Employment Agreement. (Docket Entry Nos. 71, 105). In ruling on Rimkus’s application for a preliminary injunction, this court concluded that the Louisiana court’s judgment “clearly precludes relitigation of the issue of whether the forum-selection and choice-of-law provision, as well as the noncompetition and nonsolicitation covenants, are unenforceable in Louisiana, under Louisiana law.” (Docket Entry No. 159, August 13, 2008 Memorandum and Opinion, 255 F.R.D. 417, 431 (S.D.Tex.2008)). This court decided that, even if Texas law applied and the noncompetition and nonsolicitation provisions were enforceable outside Louisiana, Rimkus was not entitled to the preliminary injunctive relief it sought. Under Texas law, the noncompetition covenant was broader in geographical scope than necessary to protect Rimkus’s legitimate business interests and the nonsolicitation covenant was broader than necessary because it applied to all Rimkus customers, not merely those Cammarata had worked with or solicited business from while working for Rimkus.

Cammarata again moved to dismiss based on

res judicata,

asking this court to determine the preclusive effect of the Louisiana court’s ruling outside Louisiana. (Docket Entry No. 169). Cammarata’s motions to dismiss were granted “insofar as Rimkus seeks damages for Cammarata’s postemployment competitive activities inside Louisiana on the basis that those activities breached his Employment Agreement.” (Docket Entry No. 260, March 24, 2009 Memorandum and Opinion, 257 F.R.D. 127, 141 (S.D.Tex.2009)). The motions to dismiss were denied with respect to Cammarata’s activities outside Louisiana.

(Id.).

This court held that the Louisiana state court’s rulings that the forum-selection, choice-of-law, noncompetition, and nonsolicitation contract provisions were unenforceable in Louisiana under Louisiana law did not make those provisions invalid in all states.

(Id.

at 140).

*629

In response to the declaratory judgment complaint Bell and Cammarata filed in Louisiana state court on November 15, 2006, Rimkus filed an answer and a “Re-conventional Demand.”

27

Rimkus asserted that “the entirety of this Reconventional Demand should be governed according to the laws of the State of Texas.” (Docket Entry No. 309, Ex. B at 6). Rimkus’s reconventional demand asserted causes of action for breach of the Employment Agreement’s noncompetition, nonsolicitation, and confidentiality provisions, breach of the Common Stock Purchase Agreement, breach of fiduciary duty, and disparagement.

(Id.).

After the Louisiana state court ruled that the noncompetition and nonsolieitation clauses in the Employment Agreements were unenforceable under Louisiana law, Bell, Cammarata, and De-Harde moved for summary judgment on the remaining claims asserted in Rimkus’s reconventional demand in the Louisiana lawsuit. The summary judgment motion cited only Texas cases and sought judgment as a matter of Texas law. Rimkus responded to the motion and argued that summary judgment was inappropriate under Texas law. The Louisiana state trial court heard oral argument from the parties on the viability of these claims under Texas law. On May 11, 2009, the Louisiana court issued an order stating that “after reviewing the evidence, the law and arguments of counsel ... IT IS ORDERED, ADJUDGED, AND DECREED that the Motion for Summary Judgment is GRANTED, and the reconventional demands of the plaintiffs-in-reconvention, Rimkus Consulting Group, Inc. and Rimkus Consulting Group, Inc. of Louisiana, are DISMISSED WITH PREJUDICE, each party to bear its own costs.” (Docket Entry No. 309, Ex. G). The defendants in this case, Bell and Cammarata, argue that the Louisiana state court’s ruling dismissing these claims is entitled to preclusive effect.

B. Discovery

In the fall of 2007, Rimkus sought “documents, including emails, related to Cammarata’s and Bell’s communications with one another and with other U.S. Forensic, L.L.C. members concerning the creation and inception of U.S. Forensic, L.L.C., their roles with the company, and contact with clients.” (Docket Entry No. 313 at 4). Rimkus deposed Cammarata in October 2007. In response to a subpoena duces tecum issued for that deposition, Cammarata produced two emails relevant to the formation of U.S. Forensic. In November 2007, Rimkus served the defendants with a request to produce all such documents, including all emails sent among those setting up or working for U.S. Forensic before January 1, 2007. The defendants objected to this request as over-broad because it could include irrelevant personal emails and “day-to-day emails regarding the operation of U.S. Forensic’s business,” but stated that they “searched several times for any such responsive emails and turned over any responsive emails in their possession.” (Docket Entry No. 345 at 47). Rimkus asserts that from November 2007 to June 11, 2009, despite repeated requests, the defendants did not produce any emails. In June 2009, the defendants produced approximately sixty emails sent by the defendants and others involved with U.S. Forensic during the fall of 2006. (Docket Entry No. 313 at 4).

In the spring of 2009, Rimkus noticed the depositions of Gary Bell, William Ja

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nowsky, and Michael DeHarde. Each was served with a subpoena duces tecum seeking any email communications about U.S. Forensic’s formation. On March 7, 2009, Bell testified in his deposition that he had “printed out the things that [he] thought might be responsive, and sent it to [his attorney], when [he] first received the first request” for these emails. (Docket Entry No. 314, Ex. 6, Deposition of Gary Bell, Vol. 1 at 16:24-17:2). Bell testified that it was his custom to delete an email after completing the task for which he needed the email but that he might have saved some relevant, responsive emails on his personal computer until the related tasks were completed.

(Id.

at 15:21-16:4). When asked whether he still had that personal computer, Bell testified that he had donated it to charity in 2007, well after the litigation was underway.

(Id.

at 16:11 — :18). When Bell was asked whether, when he sued Rimkus in Louisiana on November 15, 2006, he attempted to preserve emails, documents, calendar entries, or other information relevant to his departure from Rimkus to form a competing business, Bell testified as follows:

A: For my employment at Rimkus, I used the Rimkus E-mail system. They would — you know, they would have everything there. I didn’t use my personal — but, you know, I — I— you know, I don’t know what to tell you. I — you know, I don’t think I had anything. I certainly wasn’t trying to get rid of anything. I think, it wasn’t as, you know, planned as — as it could have been.

Q. At the time you instituted that legal action, did you have an understanding that you should endeavor, as best you could, to try to keep any relevant information?

A. I — if I thought there was something that — that, you know, was requested of me, I would — I would turn it over. I didn’t try to get rid of anything that I thought I shouldn’t.

(Id.

at 17:21-18:13).

Janowsky was deposed on March 9, 2009. He testified that in response to the subpoena duces tecum, he looked in his desk, file cabinet, and computer. (Docket Entry No. 314, Ex. 12, Deposition of William Janowsky at 16:2 — :22). Janowsky testified that he “went to Windows Explorer and searched the — the directories where I thought those things might have occurred,” but he was unable to find responsive emails.

(Id.

at 17:5-18:3). Janowsky also searched his web-based email account with NetZero and found nothing responsive.

(Id.

at 18:8 — :13). Janowsky acknowledged that he exchanged emails with Gary Bell using his NetZero account while they were working on forming U.S. Forensic.

(Id.

at 19:8-:11). Janowsky’s deposition testimony continued:

Q. And what did you do with them?

A. I deleted them.

Q. And when did you delete them?

A. I don’t know.

Q. Did you ever print them?

A. No.

Q. What was — what is your routine or your normal practice with respect to either deleting or saving Emails?

A. I get rid of them very frequently. I get a lot of Emails and they fill up my box, so I go through on kind of a weekly basis and — and get rid of anything that’s — that’s not current, needs to be taken care of.

(Id.

at 19:12 — :25). Janowsky testified that he did not participate in any discussion with Bell, Cammarata, or DeHarde about deleting emails related to forming U.S. Forensic. Janowsky testified that there was no agreement to delete emails on a routine or regular basis.

(Id.

at 40:24-41:10). “I deleted my Emails out of con

*631

venience. I’m not sure what the other guys did, if they deleted — but I didn’t have any agreement to delete Emails about this interest.”

(Id.

at 41:14 — :17). Janowsky did not remember whether anyone had ever talked to him about preserving records related to the formation of U.S. Forensic.

(Id.

at 26:1-:4). He acknowledged that he had not tried to save any emails related to the formation of U.S. Forensic or with Bell, Cammarata, and DeHarde about U.S. Forensic.

(Id.

at 26:5—:8).

DeHarde was deposed on April 1, 2009. He testified that he had looked for “the emails that [he] and Mr. Bell exchanged concerning — forming a company to compete with Rimkus” but did not “recall” whether he was able to find those emails. (Docket Entry No. 313, Ex. F, Deposition of Michael DeHarde at 13:10-:16). The following exchange occurred:

Q: What did you do to try to find them?

A: I looked on my computer.

Q: And when did you do that, sir?

A: I don’t recall.

Q: Can you give me an estimate of when you did it?

A: About 2007, 2008, something like that.

Q: Why did you do it?

A: Because I was requested to do that. Q: And did you find any?

A: I don’t recall.

Q: What would you have done with them after you found them?

A: Given them to Larry Demmons [counsel for defendants Bell and Cammarata].

MR. WARD [counsel for Rimkus]:

Larry, do you have any emails from Mr. DeHarde?

MR. DEMMONS:

Nothing other than what’s been turned over.

MR. WARD:

I don’t believe anything has been turned over from Mr. DeHarde.

MR. DEMMONS:

Then I didn’t get anything from Mr. DeHarde.

(Id.

at 13:17-14:17). DeHarde testified that he deleted emails' — including email communications with Bell, Cammarata, and Janowsky — because of concern about the storage capacity of his Yahoo! email account.

(Id.

at 37:14-:20; 38:19 — :25). DeHarde testified that he did not delete emails on a regular or systematic basis.

(Id.

at 22:2 — :10).

28

After this deposition, Rimkus asked this court to compel DeHarde to look for and produce documents and information responsive to the subpoena duces tecum. This court ordered DeHarde to do so and to reappear for one hour of additional deposition questioning. Rimkus then subpoenaed several internet service providers seeking the defendants’ emails. At a hearing held on May 1, 2009, this court permitted Rimkus to proceed with those subpoenas with limits based on relevance and privacy protection.

29

The May 1, 2009

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hearing revealed that the defendants’ efforts to locate and retrieve electronically stored information, including emails, had been superficial. The defendants had looked for readily accessible emails that were still on the computers they still had. They had not identified any sources of relevant information that were not reasonably accessible. They had no information about whether any of the emails that had been deleted or were otherwise not reasonably accessible could be recovered and how much time and expense might be required. The defendants were ordered to conduct that inquiry and report the results.

30

Rimkus deposed Allen Bostick, an information technology (“IT”) consultant that U.S. Forensic used in the fall of 2006. Bostick’s deposition revealed that Homestead Technologies web-hosted U.S. Forensic’s email accounts beginning on November 15, 2006. On December 19, 2006, Bostick switched U.S. Forensic to an in-house email host using a small business server. U.S. Forensic used a series of external hard drives for backup storage. The documents on U.S. Forensic’s network, including emails, were backed up every night using backup software and the external hard drives. On April 4, 2007, Bostick advised U.S. Forensic that the software for the type of hard drive U.S. Forensic was using was not meant to back up a small business server. According to Bostick, the hard drive was subsequently returned to the manufacturer as defective. On April 5, 2007, U.S. Forensic switched to different backup software. Every night, the software created a local copy on the server and saved a backup copy onto two external hard drives. Near the end of 2007, one of these drives failed. Bostick testified that space on the external hard drives became a concern around late 2007. (Docket Entry No. 314-9, Deposition of Allen Bostick at 148:1 — :4).

In late 2007, U.S. Forensic began using three external hard drives and subsequently began using different backup software. The new software did not create a backup image on the server. Instead, the backup was directly to the external hard drive. On May 28, 2009, the defendants reported that three backup images had been located. Bostick was able to restore one of these images but two others were corrupted and U.S. Forensic no longer had the software to restore them. According to the defendants, the hard drives had to be sent to the software company for any attempt at restoration.

The defendants reviewed the emails recovered from the restored backup image and determined that none were relevant The defendants also retained Roddy Orgeron, an IT consultant, to determine the time, cost, and likelihood of obtaining information from the corrupted drives. Orgeron could not open the files because the hard drive was damaged and because he did not have the necessary software. According to Orgeron, there was some possibility that some backup files could be recovered, but it would cost between $2,000.00 and $10,000.00 and there was a slim likelihood of success because of the damage to the hard drive.

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On May 29, 2009, Rimkus continued with DeHarde’s deposition. DeHarde produced several responsive emails that he had found in his Yahoo! mail account. These emails were sent to DeHarde from other Rimkus employees while DeHarde still worked at Rimkus. DeHarde received these emails at his Rimkus email address but forwarded them to his personal Yahoo! account. None of the emails was from Bell or Cammarata. The following exchange occurred:

Q: Is there any reason that you don’t have any emails from this same time frame from Mr. Cammarata?

A. Yes.

Q. Why is that?

A. We deleted them. We had a policy that we would delete e-mails during the start-up after two weeks.

(Docket Entry No. 313, Ex. F, Deposition of Michael DeHarde at 18:14 — :21). De-Harde testified that he, Bell, Cammarata, and Janowsky had agreed on this email-deletion policy. According to DeHarde, this agreement was made “[sjometime in the fall of 2006, fall or summer, 2006,” while he was still working at Rimkus.

(Id.

at 34:24-:25). DeHarde testified that there was no discussion with Bell or Cammarata about suspending or modifying this policy once they decided to file the Louisiana lawsuit or when they did so on November 15, 2006. DeHarde acknowledged that he had deleted all emails that Cammarata sent to his Yahoo! account. The deposition continued:

Q. And those were emails that specifically related to discussions you were having about leaving Rimkus and forming a new business?

A. Yes.

Q. And part of the motivation for that was to make sure that there wasn’t evidence of those communications, correct?

A. We had a policy to delete the emails after two weeks, and I followed the policy.

(Id.

at 35:1—:9). DeHarde testified that the policy remained in effect after the Louisiana state suit was filed.

(Id.

at 34:9—:14).

On June 11, 2009, the defendants produced approximately 103 pages of emails sent in the fall of 2006. The emails include communications among the defendants clearly responsive to long-standing Rimkus discovery requests. These emails were forwarded from Gary Bell to defense counsel Larry Demmons on May 15, 2009. These emails were only a portion of those sent or received by Bell, Cammarata, and DeHarde beginning in the fall of 2006, relating to U.S. Forensic.

Rimkus was able to obtain numerous additional emails via subpoena from the defendants’ internet service providers and email providers. Most were produced by Homestead. These emails show that Bell and Cammarata contacted Rimkus clients in November and December 2006 to solicit business for U.S. Forensic. The following emails were obtained from Homestead:

• On November 9, 2006, Bell emailed Doug Delaune of Southern Farm Bureau Casualty Insurance and attached U.S. Forensic’s marketing materials. (Docket Entry No. 324, Ex. F). Bell asked for Delaune’s help in getting U.S. Forensic on Farm Bureau’s approved list and invited Delaune to meet.

(Id.).

• On November 15, 2006, Bell emailed Stephanie Jackson of Louisiana Citizens Property Insurance and attached “initial company information on U.S. Forensic.” (Docket Entry No. 321, Ex. L-2). Bell thanked Jackson for “speaking with [him] last week” and asked for a meeting “some time next week” to “go over our capabilities, ca

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pacities, the company insurance coverages, and how we plan to improve on services to Citizens.”

(Id.).

Bell stated that U.S. Forensic would be “officially open for business tomorrow” and that he “hope[d] we get a chance to continue working with you.”

(Id.).

• On November 15, 2006, Bell emailed Don Livengood, a Fidelity National representative with whom Bell and Cammarata had dealt while employed at Rimkus. (Docket Entry No. 321, Ex. L-1). Bell attached to the email “initial company information on U.S. Forensic” and asked to meet with Livengood to “go over the insurance coverages, the non compete agreement for Orleans Parish and our capacity to do jobs out of state.”

(Id.).

Liven-good responded that he would “be in touch with you next week about working our jobs.”

(Id.).

Bell replied that he and Cammarata were “looking forward to working with you again.”

(Id.).

• On November 27, 2006, Bell emailed Bill Eckert of Ungarino Eckert and Tommy Dupuy of Cunningham Lindsey to introduce U.S. Forensic and solicit business. (Docket Entry No. 324, Exs. L, N). Ungarino Eckert and Cunningham Lindsey had been Rimkus clients and the record shows that Bill Eckert worked with Bell while he was still employed at Rimkus.

(Id.,

Ex. M).

• On December 1, 2006, Bell sent an email to “info@usforensic.com,” with blind copies apparently addressed to numerous individuals.

(Id.,

Ex. P at 4). The email introduced U.S. Forensic, “a Louisiana and Mississippi licensed forensic engineering firm which specializes in evaluation of civil, structural and mechanical failures.”

(Id.).

Bell highlighted the experience of U.S. Forensic’s engineers and attached their resumes and U.S. Forensic brochures. The email included a link to U.S. Forensic’s web site and invited recipients to contact Bell for more information.

(Id.).

Two recipients of that email were Cary Soileau of Allstate Insurance and Dianna Drewa of Fidelity National Insurance Company, both Rimkus clients. (Docket Entry No. 324, Exs. P, Q, R). Bell had worked with Soileau while employed by Rimkus. After Bell left Rimkus, he asked Soileau to provide contact information for Allstate employees Claudia Danesi and Julie Kron so that U.S. Forensic could “get on the Allstate approved list locally.”

(Id.,

Ex. P).

• On December 11, 2006, Bell emailed Tim Krueger of Safeco Insurance.

(Id.,

Ex. S). Bell stated that he “really had no idea [he] was leaving [Rimkus] the day [he] did” and expressed hope that Krueger had been served well since his departure.

(Id.).

Bell asked Krueger to direct him to “any local claims people that might be looking for some local help” but noted that

“due to contractual obligations we would not be able to accept any assignments in New Orleans until October 2007.”

(Id (emphasis added)).

• On December 12, 2006, Bell emailed Denise Milby of Scottsdale Insurance and D. Powell and Jeff Baker of Boulder Claims to introduce U.S. Forensic and its engineers and services.

(Id.,

Exs. T, V).

• On December 13, 2006, Bell emailed Sandra Carter with Lexington Insurance “to introduce U.S. Forensic, a Louisiana and Mississippi based forensic engineering firm which specializes in evaluation of civil, structural, electrical and mechanical failures.” (Docket Entry No. 321, Ex. L-3). Bell continued: “You may remember

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me from my previous position as Central U.S. Operations Manager at Rimkus Consulting Group and my trip to Boston a couple of months back. I left with a couple of engineers from Rimkus and a couple from a competitor to form a new, leaner firm that focuses on decisive, cost effective reports with no more than a two week turnaround.”

(Id.).

Bell stated that U.S. Forensic “would be pleased to work with you and Lexington Insurance.”

(Id.).

Rimkus has submitted evidence that Carter’s new contact information was contained in an email that Bell received from a coworker at Rimkus on October 1, 2006. Rimkus alleges that Bell forwarded this email on October 5, 2006, using his Rimkus email account, to an unknown email address.

(Id.,

Ex. Q).

31

The belatedly produced emails show that in November and December 2006, Cammarata also contacted individuals he had dealt with while working at Rimkus. On November 30, 2006, Cammarata emailed Ken Mansfield about his new firm. (Docket Entry No. 324, Ex. Z). Cammarata referred to assignments they had worked on together at Rimkus and told Mansfield to let Rimkus know his requirements if he wanted Rimkus to continue providing forensic engineering services.

(Id.).

Cammarata gave Mansfield the contact information for the Rimkus New Orleans District Manager but also offered “to provide professional engineering services to you and your firm as you may require” and asked Mansfield to contact him.

(Id.).

On December 11, 2006, Cammarata emailed Bill Parsons of Gray Insurance to follow up on a phone conversation they had about an assignment Cammarata had been working on for Parsons before leaving Rimkus.

(Id.,

Ex. AA). Cammarata told Parsons that it would be easier to have the file transferred from Rimkus to U.S. Forensic so that Cammarata could complete the work himself.

(Id.).

Cammarata told Parsons that if he wanted the file transferred, he should contact Rimkus’s New Orleans District Manager.

(Id.).

The emails Rimkus recovered from the internet service providers were largely from November and December 2006, when Homestead was hosting U.S. Forensic’s email. The defendants had deleted these emails in late 2006, despite the fact that they had filed the Louisiana suit against Rimkus and despite the likelihood that Rimkus would sue them. Rimkus argues that because Bell and Cammarata had deleted these emails, and the emails were solicitations of former Rimkus clients, it is clear that Bell and Cammarata sent other similar emails, particularly after December 2006. Rimkus contends that the record supports an inference that the deleted emails would have helped its case and that the pursuit of this case has been impaired by the inability to obtain those emails in discovery.

Rimkus also alleges that the defendants’ testimony that they did not delete emails to cover up unfavorable evidence is perjurious. Rimkus alleges that “there are other specific instances of perjury that have occurred in the testimony of Bell, Cammarata, Janowsky, DeHarde, and Darren Balentine that [also] justify the imposition of a severe sanction.” (Docket Entry No. 313 at 24). Rimkus argues that Bell’s and Cammarata’s testimony that they did not take confidential client information from Rimkus is false because the emails obtained from Homestead show that the de

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fendants contacted Rimkus clients shortly after leaving Rimkus. According to Rimkus, there is no way Bell and Cammarata could have obtained that contact information so quickly unless they took it from Rimkus when they left.

At the August 6, 2009 motion hearing, this court allowed Rimkus to reopen the depositions of Bell and Cammarata and to supplement the summary judgment record. Rimkus filed a supplemental response, (Docket Entry No. 374), and the defendants filed a supplemental reply, (Docket Entry No. 376). At a September 2, 2009 discovery conference, the parties presented arguments on the significance of the recently obtained evidence. The new evidence included emails on Bell’s personal email account with Google, reports created by the defendants for U.S. Forensic that Rimkus alleged contain its copyrighted materials, and the presence of Rimkus files on Cammarata’s home computer. The court allowed the parties another opportunity to supplement the record to include relevant, recently obtained evidence. Rimkus filed supplements to its summary judgment responses and to its sanctions motions. (Docket Entry No. 389, 393, 394).

The supplemental filings included emails Rimkus subpoenaed from Homestead showing that Cammarata used his personal email address in November and December 2006 to send Rimkus engineering data and reports to his U.S. Forensic email address. (Docket Entry No. 393, Ex. C). Cammarata testified that while he was working at Rimkus, he often transferred work and reports to his home computer.

(Id.,

Ex. E, Deposition of Niekie Cammarata at 45:18 — :24). Rimkus also obtained an email showing that Cammarata copied part of a Rimkus vibration report that he had used when he worked at Rimkus and sent it to a U.S. Forensic Associates contract engineer to include in a project presentation. (Docket Entry No. 393, Ex. C; Ex. E, Deposition of Niekie Cammarata at

16:13-

17:23). Cammarata and Bell both testified that they obtained a copy of a Rimkus wind/hail powerpoint presentation to use at U.S. Forensic.

(Id.

at 15:22-16:4; Docket Entry No. 389, Ex. I, Deposition of Gary Bell at 69:10-70:13). Rimkus filed an amended complaint alleging that the use of the powerpoint presentation and other Rimkus materials constitutes copyright infringement. (Docket Entry No. 403 at 13-14).

Cammarata testified that one of his clients at U.S. Forensic gave him photographs taken by Rimkus of a job in the Port Sulphur, Louisiana area because the client wanted Cammarata to continue working on that job at U.S. Forensic. (Docket Entry No. 389, Ex. H, Deposition of Niekie Cammarata at 10:9-15:21). Rimkus argues that Cammarata misappropriated these photographs from Rimkus and used them in preparing U.S. Forensic reports. (Docket Entry No. 389 at 5).

On September 13, 2009, Cammarata produced, for the first time, fifteen disks of electronically stored information and numerous boxes of paper documents. Rimkus reviewed these materials and “determined that [they] contained a significant amount of Rimkus correspondence, job photographs, job files, engagement letters, Terms and Conditions, client contact information, and Rimkus PowerPoint presentations.” (Docket Entry No. 389 at 5). Rimkus points to Cammarata’s October 4, 2007 deposition testimony that he only retained “some reports” in a box as further evidence of perjury and discovery obstruction. (Docket Entry No. 393, Ex. K, Deposition of Nickie Cammarata at 122:17).

Rimkus also submitted evidence from its own forensic analysis of Bell’s Rimkus laptop. The analysis showed that on the day he resigned from Rimkus, Bell download

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ed financial information from the Rimkus server to the laptop. This information includes financial spreadsheets for six Rimkus offices, including Chicago, Indianapolis, Jackson, Lafayette, New Orleans, and Pensacola. These offices comprise Rimkus’s Central Region, which had been Bell’s responsibility. Rimkus argues that there was no reason for Bell to download these documents from the server on the day he resigned other than to misappropriate them for use in his new competing business.

On September 30, 2006, Bell sent an email to his personal Gmail account containing financial data for four Rimkus offices. Bell had downloaded this data from his Rimkus laptop. In an earlier deposition, Bell had testified that he did not have a Gmail account during this period. (Docket Entry No. 394, Ex. A, Deposition of Gary Bell at 450:10-451:11). In his August 2009 deposition, Bell was asked about the belated disclosure that he had sent Rimkus information to a personal Gmail account:

Q: Now, do you remember me asking you in your prior deposition about all of the email accounts you had?

A: I believe you did.

Q: You didn’t mention a G-mail account, did you?

A: Not that I recall.

Q: And I specifically asked you if you had a G-mail account, right?

A: I don’t know if you specifically asked me. I don’t use the G-mail account. I set it up during the hurricane right after I evacuated to Lafayette. I got an invitation to set one up. I set it up and it’s really something I haven’t really used.

(Jd.,

Ex. C, Deposition of Gary Bell at 10:9-:22).

Rimkus argues that Bell first tried to conceal, then distance himself from, the Gmail account because he used it to “go under the radar” to download and take confidential Rimkus financial information. Bell testified in his deposition that he sent Rimkus financial documents to his Bell-South email account, not to use for U.S. Forensic but to help with the transition of the branch managers in the Central Region before he left Rimkus.

(Id.

at 17:8-18:1). But Bell sent this email on September 30, 2006, three days

after

he resigned from Rimkus. Bell testified in his March 2009 deposition that he declined Rimkus’s invitation to help with transition work at the branch offices and that he never worked for Rimkus after September 27, 2006. (Docket Entry No. 394, Ex. A, Deposition of Gary Bell at 78:18-79:4; 80:19-:22; 81:16—:20). Rimkus also argues that Bell did not need to email these documents to himself if he was using them for Rimkus work because they were contained on his Rimkus work laptop, which he could take with him until he was finished assisting with the transition. Rimkus also notes that the September 30, 2006 email was not produced by BellSouth in response to a subpoena because Bell had previously deleted it.

On October 1, 2009, Rimkus filed its second supplemental memorandum of law in support of its motion for sanctions and response to the motion for summary judgment. (Docket Entry No. 410). In the supplemental filing, Rimkus identified an email that had been produced in native format as required in this court’s August 17, 2009 order. (Docket Entry No. 411). The defendants had previously produced this email in PDF format. (Docket Entry No. 410, Ex. Supp. T). The email was dated April 6, 2008 and labeled “From: Gary Bell” and “To: Gary Bell,” with no indication of the email addresses.

(Id.).

When the email was produced in native format, it showed six attachments not included in the original PDF version.

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(Docket Entry No. 411). Rimkus filed the attachments under seal.

(Id.).

The attachments contain contact information for Rimkus clients in Florida and for one client’s national catastrophe manager in Minnesota. (Docket Entry No. 410 at 7). Rimkus asserts that the metadata shows that Darren Balentine created the documents at Rimkus on December 14, 2007 and April 2, 2008, while he was working for Rimkus. Balentine subsequently quit Rimkus to become a 50% owner of U.S. Forensic Associates.

(Id.

at 8). The metadata also shows that the documents were converted to PDF on April 2, 2008.

(Id.).

On May 1, 2008, less than a month after the April 6, 2008 email with the client-contact information attached, Bell had testified in this court that he did not take or use confidential information when he left Rimkus and started U.S. Forensic. (Docket Entry No. 410, Ex. Supp. V at 80:16-:24). On October 6, 2009, Bell testified that he did not remember getting the April 2008 email until it was produced. He did not know whether he had received other Rimkus client information. (Docket Entry No. 430 at 12). Bell testified that he had never used the client-contact information in the email attachments.

(Id.

at 14). Bell also testified that he did not ask Balentine for the information and did not know why Balentine sent it to him.

(Id.

at 16). Bell’s counsel, Demmons, stated that he had prepared and printed the emails for production and could not explain why the initial production not only failed to include the attachments but concealed their presence.

(Id.

at 36).

In his April 9, 2009 deposition, Balentine stated that he had not to his knowledge transmitted any information he knew to be confidential Rimkus information. (Docket Entry No. 410, Ex. Supp. W, Deposition of J. Darren Balentine at 60:10-:18). Rimkus took a brief additional deposition on October 27, 2009. In the October deposition, Balentine stated he did not recall sending Bell the client-contact information and that he was unable to find a record of sending Bell an email with the client information in April 2008. (Docket Entry No. 445, Ex. B., Deposition of J. Darren Balentine at 35:7-:10, 39:11-:18, 51:1-:25, 97:6-98:4).

Rimkus filed a motion for a preliminary injunction on October 1, 2009, seeking, among other things, to require Bell and others to return all of Rimkus’s confidential information and seeking to enjoin Bell and anyone at U.S. Forensic from using the information contained in the email attachments. (Docket Entry No. 416). At a hearing before this court on October 6, 2009, the parties agreed to certain provisions of the proposed injunction, and this court granted the preliminary injunction in part. (Docket Entry No. 425).

In addition to the email attachments containing Rimkus customer information, Rimkus also points to a newly discovered email stating that Bell met with a real estate agent in August 2006, while he was still working at Rimkus, and on August 15, 2006 received a Letter of Intent to lease the space. (Docket Entry No. 410, Ex. Supp. Q). The Letter of Intent identified “U.S. Forensics, LLC” as the subtenant and noted that the “LLC [was] to be established in September, 2006.”

(Id.).

Rimkus argues that the Letter of Intent naming U.S. Forensic contradicts Bell’s earlier deposition testimony that Bell did not plan to leave Rimkus before he did so and that his only steps before leaving Rimkus was speaking to his brother about going to work for him. (Docket Entry No. 410 at 13-23).

Rimkus filed a supplemental memorandum of law, arguing that it had discovered proof that Bell had used the Rimkus client information contained in the April 2008 email attachments. (Docket Entry No. 429). Rimkus submitted an affidavit from

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Michael Sanchez, a claims vendor manager for American Strategic Insurance Company.

(Id.,

Ex. Supp. Y). Sanchez’s affidavit stated that Bell contacted him by email and phone, seeking to provide engineering services through U.S. Forensic.

Id.

at 2. Sanchez also stated that Balentine contacted him on September 9, 2009, seeking to provide engineering services through U.S. Forensic Associates, L.L.C.

Id.

Sanchez did not recall providing his contact information to Bell.

Id.

Rimkus alleges that Sanchez’s affidavit establishes that Bell had used Rimkus confidential information, contradicting his statements under oath.

In response, the defendants noted that Sanchez’s affidavit did not preclude the possibility that his contact information could have been obtained from a source other than Rimkus’s client lists. (Docket Entry No. 435 at 9 n. 3). The defendants offered a roster from a conference Bell attended in 2008 containing Sanchez’s phone number and address as a possible source of the contact information.

(Id.

at 9). The defendants also attacked the language in the affidavit as “far from definitive” because Sanchez said “[t]o my knowledge” and “that I recall” when referring to communications from Bell.

(Id.).

The defendants also objected that Sanchez did not attach his call log showing the phone call from Bell or any emails from Bell.

(Id.).

Rimkus filed a fourth supplemental memorandum on October 14, 2009. (Docket Entry No. 439). Rimkus argued that Sanchez’s email address does not appear in the contact information listed in the conference documents.

(Id.

at 2). Rimkus argued that the evidence of Bell’s contact with Sanchez conflicts with Bell’s testimony before this court that he had not contacted persons listed on the Rimkus client list.

(Id.).

On November 5, 2009, the defendants filed a motion to strike Sanchez’s affidavit, Rimkus’s fourth supplement, and the supplemental responses to the motion for contempt. (Docket Entry No. 446). The defendants argued that Sanchez’s testimony in his November 2, 2009 deposition was different from his affidavit. Sanchez testified in his deposition that Bell called him in June 2009; the affidavit states the date as June 2008. Sanchez testified in his deposition that he never received an email from Bell; his affidavit states that Bell emailed him. Sanchez testified in his deposition that his contact information was on lists in Bell’s possession and that he believed he gave Bell a business card. Sanchez also testified that he did not read through the whole affidavit after signing it.

(Id.).

The defendants argued that this court should strike Rimkus’s fourth supplement because it was filed after this court’s October 14, 2009 deadline for filing supplemental pleadings.

(Id.

at 13 n. 21). Rimkus responded and argued that Sanchez’s affidavit and deposition testimony both contradict Bell’s October 6, 2009 testimony that he had not contacted any client on the Rimkus client list attached to the April 6, 2008 email. (Docket Entry No. 447).

32

*640

After the October 6, 2009 hearing, the defendants produced 277 reports and other documents that contain data or language taken from Rimkus materials. (Docket Entry No. 431 at 6-7). Rimkus argued that the reports were further evidence of bad faith and discovery obstruction.

(Id.

at 7). Rimkus argued that in addition to the evidence of spoliation, this court should look to the defendants’ delay in responding to discovery, them “formulaic and groundless objections,” and their “chaotic production” to support a finding of contumacious conduct.

(Id.

at 10).

The parties’ contentions are examined against the extensive evidence in the record, including the supplemental filings, and the applicable law.

IV. Rimkus’s Motion for Sanctions and Contempt

A. The Parties’ Contentions

Rimkus argues that the defendants intentionally deleted emails “in direct contravention of their legal duty to preserve electronically stored information when they anticipated they would be engaged in litigation with Rimkus.” (Docket Entry No. 313 at 6). Rimkus contends that the duty to preserve arose before November 2006, when Bell, Cammarata, and De-Harde planned to sue Rimkus in Louisiana. Rimkus points to the November 11, 2006 email that Bell sent to Cammarata, DeHarde, and Janowsky stating that they needed to file suit in Louisiana and “serve [Rimkus] on Monday to prevent them from filing in Texas.”

(Id.).

Rimkus argues that the defendants understood that their Louisiana suit seeking to invalidate the noncompetition and nonsolicitation clauses would be met with a countersuit seeking to enforce the provisions as well as the contractual and common-law duty not to misappropriate propriety and confidential information.

(Id.

at 7).

Rimkus alleges that the defendants “scheme[d]” to destroy evidence showing the extent to which they took confidential information from Rimkus to use to set up, operate, and solicit business for U.S. Forensic.

(Id.).

The scheme, and the attempt to conceal it, included deleting emails showing that the defendants took information from Rimkus and used it for U.S. Forensic, donating or throwing away laptop computers from which such emails might be recovered, and lying about personal email accounts. According to Rimkus, the cover-up unraveled when De-Harde testified about the defendants’ agreement to delete all emails more than two weeks old. Rimkus also points to the April 2008 email Gary Bell sent himself containing attachments with confidential Rimkus customer-contact information and the reports Cammarata produced containing language and data copied from Rimkus. (Docket Entry No. 431 at 6-7). Rimkus argues that these documents, withheld from production until recently, combined with Cammarata’s and Bell’s pri- or testimony, provide evidence of intentional, bad-faith efforts to withhold or destroy relevant information.

As a sanction for spoliation, Rimkus asks this court to strike the defendants’ pleadings and enter a default judgment or, in the alternative, to give an adverse inference jury instruction at trial. Rimkus also seeks reimbursement of the costs and fees it incurred in discovering or attempting to discover spoliated evidence and in moving for sanctions.

The defendants respond that the deleted emails responsive to Rimkus’s discovery requests — to produce “Cammarata’s and Bell’s communications with one another and with other U.S. Forensic, L.L.C. members concerning the creation and inception of U.S. Forensic, L.L.C., their roles with the company, and contact with clients”—

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“only relate to Plaintiffs claim for breach of fiduciary duty against Mr. Bell, not the myriad of other claims in this litigation.” (Docket Entry No. 345 at 13-14). The defendants argue that there was no duty to preserve these emails in November and December 2006 because they only planned to sue Rimkus for a declaratory judgment that the noncompetition and nonsolieitation provisions were unenforceable.

The defendants also argue that there is insufficient prejudice to Rimkus to warrant a default judgment or adverse inference instruction because Rimkus has been able to obtain some of the deleted emails from other sources and has sufficient evidence to argue its claims. The defendants contend that any emails or documents they destroyed that could not be obtained from other sources in discovery “would be merely cumulative of evidence already produced.”

(Id.

at 15). The defendants assert that there is a “wealth” of evidence on the formation of U.S. Forensic and the defendants’ preparations to form a competing business. They point to several documents that were produced earlier in this litigation that “could be deemed relevant to Plaintiffs claim for breach of fiduciary duty and the issue of Defendants’ formation of U.S. Forensic.”

(Id.

at 16).

The defendants admit that sanctions in the amount of reasonable costs and fees Rimkus incurred to obtain production of the April 2008 email Gary Bell sent himself containing attachments with Rimkus client-contact information and the reports with Rimkus language are appropriate. (Docket Entry No. 408 at 26). The defendants argue that other sanctions are not warranted because the failure to produce earlier was not due to intentional wrongdoing but to “ineptitude” and that Rimkus is not prejudiced because “the vast majority of information requested by Plaintiff, and previously thought to be lost or destroyed, has now been produced.”

(Id.

at 28).

1. The Duty to Preserve

The record shows that no later than November 11, 2006, when the defendants were about to “preemptively” sue Rimkus, they had an obligation to preserve documents and information — including electronically stored information — relevant to these disputes. The disputes included whether Bell breached the fiduciary duty he owed Rimkus as an officer, whether Bell or Cammarata breached enforceable obligations under the noncompete and non-solicitation provisions in the parties’ contracts, and whether Bell or Cammarata breached contractual or common-law duties not to take or use Rimkus’s confidential and proprietary information.

Bell sought the advice of counsel before leaving Rimkus. The November 11, 2006 email from Bell to Cammarata, DeHarde, and Janowsky discussing the final steps of the plan to sue Rimkus in Louisiana to challenge the noncompete and nonsolicitation provisions shows that the defendants knew that they would be suing Rimkus within days. The duty to preserve electronically stored information and documents relevant to that suit and reasonably anticipated related litigation was triggered no later than November 11, 2006.

The defendants’ argument that their preservation obligation was limited to documents or emails related to breach of fiduciary obligation claims against Bell is unpersuasive. Bell, Cammarata, and De-Harde sued Rimkus in Louisiana seeking a declaratory judgment that the noncom-petition and nonsolicitation clauses were unenforceable so that they could operate U.S. Forensic to compete with Rimkus. It was reasonable for Bell and Cammarata to anticipate that Rimkus would seek to enforce those contractual provisions as to all the U.S. Forensic employees who left Rimkus, as well as the contractual and common-law duty not to disclose Rimkus’s

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confidential and proprietary information. Emails and attachments and other documents relating to U.S. Forensic and its related company, to soliciting Rimkus clients or employees, and to obtaining or using Rimkus information were subject to a preservation obligation. Such records were relevant to the claims involved in the Louisiana state court action that Cammarata, Bell, and DeHarde filed and to the reasonably anticipated claims that Rimkus would file, and involved the key players in the parties’ litigation.

Rule 37(e), which precludes sanctions if the loss of the information arises from the routine operation of the party’s computer system, operated in good faith, does not apply here. The evidence in the record shows that the defendants and other U.S. Forensic founders did not have emails deleted through the routine, good-faith operation of the U.S. Forensic computer system. DeHarde testified that he, Bell, Cammarata, and Janowsky decided on a “policy” of deleting emails more than two weeks old. Putting aside for the moment other evidence in the record inconsistent with this testimony, a policy put into place after a duty to preserve had arisen, that applies almost exclusively to emails subject to that duty to preserve, is not a routine, good-faith operation of a computer system. Moreover, the evidence shows that the founders of U.S. Forensic manually and selectively deleted emails, after the duty to preserve arose. The selective, manual deletions continued well after Rimkus filed suit in January and February 2007.

Despite the fact that the founders of U.S. Forensic had sought and obtained legal advice on many aspects of their departure from Rimkus and their formation and operation of the competing business, they made

no

effort to preserve relevant documents, even after the Louisiana and Texas suits had been filed. To the contrary, the evidence shows affirmative steps to delete potentially relevant documents. Even assuming that there was an email destruction policy as DeHarde testified, it was selectively implemented. The deleted documents included emails and attachments relevant to the disputes with Rimkus — the emails and attachments showing what information U.S. Forensic’s founders took from Rimkus to use in the competing business, including to solicit business from Rimkus clients, and how they solicited those clients.

The record shows that the electronically stored information that the defendants deleted or destroyed after the duty to preserve arose was relevant to the issues involving both Bell and Cammarata, not limited to a breach of fiduciary claim against Bell. The deleted emails and attachments related not only to setting up U.S. Forensic but also to obtaining information from Rimkus, including copyrighted materials, financial documents, and customer lists; using at least some of that information to operate U.S. Forensic in competition with Rimkus; and soliciting business for U.S. Forensic. The evidence shows that by deleting emails relating to forming U.S. Forensic and to using information from Rimkus for U.S. Forensic, by failing to preserve such emails, and by giving away or destroying laptops with such emails, the defendants destroyed potentially relevant evidence.

2. The Degree of Culpability

Destruction or deletion of information subject to a preservation obligation is not sufficient for sanctions. Bad faith is required. A severe sanction such as a default judgment or an adverse inference instruction requires bad faith and prejudice.

See Condrey v. SunTrust Bank of Co.,

431 F.3d 191, 203 (5th Cir.2005);

see also Whitt v. Stephens County,

529 F.3d 278, 284 (5th Cir.2008) (“[A] jury may draw an adverse inference ‘that party who

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intentionally destroys important evidence in bad faith did so because the contents of those documents were unfavorable to that party.’ ” (quoting

Russell v. Univ. of Tex. of the Permian Basin,

234 Fed.Appx. 195, 207 (5th Cir.2007) (unpublished))).

33

The defendants’ proffered reasons and explanations for deleting or destroying the emails and attachments are inconsistent and lack record support. Bell testified that he deleted emails for “space concerns,” Janowsky testified that he deleted emails on a weekly basis because he got a lot of emails and they “fill up [his] box,” and DeHarde testified in his first deposition that he deleted emails on an ad hoc basis because he was concerned about storage capacity in his in-box. The defendants also asserted that they deleted emails about preparations to form U.S. Forensic for fear of retaliation by Rimkus if they ended up staying on at Rimkus. Allen Bostick, the IT consultant, testified that lack of space on U.S. Forensic’s server and external hard drives did not become an issue until late 2007, well after this litigation began. The fact that De-Harde did not reveal the “policy” of deleting all emails more than two weeks old until after Rimkus was able to subpoena DeHarde’s Yahoo! account is another reason for questioning the truthfulness of this explanation. Fear of retaliation by Rimkus might explain the deletions that oc

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curred before the defendants resigned, but not after.

Some of the emails the defendants deleted were obtained from a Rule 45 subpoena issued to one of the internet service providers, Homestead. These emails show the defendants making preparations to form U.S. Forensic in September, October, and November 2006, and soliciting clients with whom they worked while at Rimkus in late November and early December 2006. Other emails, obtained not from the defendants but through forensic analysis of the laptop Bell used at Rimkus, show that Bell downloaded and transmitted financial spreadsheets for specific Rimkus offices

after

his resignation. Emails obtained from Homestead show that Cammarata forwarded language in Rimkus reports from his home email account to his U.S. Forensic email account; Cammarata admitted giving the language from a Rimkus report to a U.S. Forensic Associates engineer for use on a project. Still another email from Bell to himself, which the defendants did not originally produce with the attachments, shows that Bell was in possession of Rimkus client-contact information in April 2008.

The evidence that the defendants knew about the litigation with Rimkus when they deleted the emails; the inconsistencies in the explanations for deleting the emails; the failure to disclose information about personal email accounts that were later revealed as having been used to obtain and disseminate information from Rimkus; and the fact that some of the emails reveal what the defendants had previously denied — that they took information from Rimkus and used at least some of it in competing with Rimkus — support the conclusion that there is sufficient evidence for a reasonable jury to find that the defendants intentionally and in bad faith deleted emails relevant to setting up and operating U.S. Forensic, to obtaining information from Rimkus and using it for U.S. Forensic, and to soliciting Rimkus clients, to prevent the use of these emails in litigation in Louisiana or Texas.

S. Relevance and Prejudice

Despite the evidence of spoliation and efforts to conceal it, the record also shows that Rimkus was able to obtain a significant amount of evidence. Rimkus had the laptop Bell used during his employment, although Rimkus delayed in examining it. That laptop revealed useful information about records Bell took from Rimkus. Although they deleted or destroyed the relevant emails, attachments, and documents on other computers, the defendants also produced numerous documents and emails relating to their communications and preparations to form U.S. Forensic. Rimkus was also able to obtain numerous emails from Homestead, which hosted all U.S. Forensic’s emails between November 15, 2006 and December 19, 2006. And the defendants have subsequently, if belatedly, produced numerous responsive emails and documents relating to the formation of U.S. Forensic and the solicitation of Rimkus clients.

Between the records the defendants did produce, the deleted records Rimkus obtained from other sources, and other evidence of the contents of deleted lost records, Rimkus has extensive evidence it can present. The evidence of the contents of the lost records shows that some would have been favorable to Rimkus. There is prejudice to Rimkus, but it is far from irreparable. Rimkus’s demand that this court strike the defendants’ pleadings and enter a default judgment is not appropriate. The sanction of dismissal or default judgment is appropriate only if the spoliation or destruction of evidence resulted in “irreparable prejudice” and no lesser sanction would suffice.

See Silvestri v. Gen. Motors Corp.,

271 F.3d 583 ,

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593-94 (4th Cir.2001) (affirming dismissal as a sanction when the alterations to the plaintiffs vehicle were tantamount to destroying the central piece of evidence in the case, which denied the defendant “access to the only evidence from which it could develop its defenses adequately,” causing “irreparable prejudice”).

Although a terminating sanction is not appropriate, a lesser sanction of a form of adverse inference instruction is warranted to level the evidentiary playing field and sanction the improper conduct.

See Russell v. Univ. of Tex. of the Permian Basin,

234 Fed.Appx. 195, 207 (5th Cir.2007) (unpublished) (“A spoliation instruction entitles the jury to draw an inference that a party who intentionally destroys important documents did so because the contents of those documents were unfavorable to that party.”);

Turner v. Pub. Serv. Co. of Colo.,

563 F.3d 1136, 1149 (10th Cir.2009) (intentional destruction of records may “support an inference of consciousness of a weak case” (quoting

Aramburu v. Boeing Co.,

112 F.3d 1398, 1407 (10th Cir.1997))).

The evidence of the contents of the deleted emails and attachments shows that deleted and unrecoverable emails and attachments were relevant and that some would have been helpful to Rimkus. Emails that Rimkus was able to obtain from Homestead and other sources show the defendants obtaining and using confidential or copyrighted Rimkus information for the benefit of U.S. Forensic. The confidential information includes Rimkus financial data. The copyrighted information includes portions of engineering reports and powerpoint presentations. Rimkus did not receive from Bell in discovery the September 30, 2006 email that Bell forwarded from his BellSouth email account to his Gmail account, with confidential Rimkus information attached. Rimkus was able to obtain this information as a result of analyzing its own computer systems; it was not produced in discovery. Rimkus did not receive in discovery the April 6, 2008 email Bell sent to himself with attachments containing Rimkus customer contact information. Rimkus was only able to obtain this information as a result of this court’s order to conduct additional review of the information restored from external disk drives and later order to produce the emails in native format.

The marketing emails from U.S. Forensic that Rimkus has recovered from third-party internet service providers show that at least during November and December 2006, Bell and Cammarata were soliciting Rimkus clients for U.S. Forensic. Some of the post-December 2006 emails that Rimkus has recovered from third parties are similar to the Homestead emails and show Bell and Cammarata soliciting business from Rimkus clients. Similar marketing emails sent or received after December 2006 were deleted by the defendants, but the extent of the missing emails remains unknown. DeHarde testified that the founding members of U.S. Forensic deleted emails that were more than two weeks old beginning in the fall of 2006. Bell testified in his deposition that he deleted all U.S. Forensic marketing-related emails. The record supports an inference that emails soliciting Rimkus clients were deleted by the defendants and that some of these emails will never be recovered.

Some deleted emails, later discussed in detail, show that Bell was contacting Rimkus clients whose information was not listed in the 2006 Casualty Adjuster’s Guide and that Bell did not have the Guide before December 2006. Even if this contact information was available on the internet in 2008, the record does not show that it was available in 2006. The emails to Rimkus clients whose contact information may not have been available in the Casualty Adjuster’s Guide or on the internet is rele

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vant to whether Bell obtained the contact information from Rimkus.

The emails that have been recovered by Rimkus, through great effort and expense, include some that support Rimkus’s claims, contradict testimony the defendants gave, and are unfavorable to the defendants. Rimkus has shown that it has been prejudiced by the inability to obtain the deleted emails for use in the litigation. To level the evidentiary playing field and to sanction the defendants’ bad-faith conduct, Rimkus is entitled to a form of adverse inference instruction with respect to deleted emails.

At the same time, it is important that Rimkus has extensive evidence to use in this case. And some of the emails that the defendants deleted and that were later recovered are

consistent

with their positions in this lawsuit and

helpful

to their defense. For example, the Homestead production revealed emails Bell sent to Rimkus clients soliciting business for U.S. Forensic stating that Bell intended to comply with his contractual obligations not to compete with Rimkus. In a November 15, 2006 email to Don Livengood at Fidelity, Bell stated that he would like to meet with Livengood to “go over the insurance coverages, the non compete agreement for Orleans Parish and [the] capacity to do jobs out of state.” (Docket Entry No. 394, Ex. F). Bell emailed Cary Soileau at Allstate on December 4, 2006 asking for the contact information for two other Allstate employees because he “was contractually obligated to leave all client info behind at Rimkus.”

(Id.).

In an email to Tim Krueger of Safeco Insurance on December 11, 2006, Bell stated that he was looking for the name of a local claims person, but Bell stated, “[p]lease keep in mind that due to contractual obligations we would not be able to accept any assignments in New Orleans until October 2007.”

(Id.).

Given this record, it is appropriate to allow the jury to hear the evidence about the deletion of emails and attachments and about discovery responses that concealed and delayed revealing the deletions. The jury will receive an instruction that in and after November 2006, the defendants had a duty to preserve emails and other information they knew to be relevant to anticipated and pending litigation. If the jury finds that the defendants deleted emails to prevent their use in litigation with Rimkus, the jury will be instructed that it may, but is not required to, infer that the content of the deleted lost emails would have been unfavorable to the defendants.

34

In mak

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ing this determination, the jury is to consider the evidence about the conduct of the defendants in deleting emails after the duty to preserve had arisen and the evidence about the content of the deleted emails that cannot be recovered.

The record also supports the sanction of requiring the defendants to pay Rimkus the reasonable costs and attorneys’ fees required to identify and respond to the spoliation. The defendants agree that this sanction is appropriate. (Docket Entry No. 408 at 26). Rimkus has spent considerable time and money attempting to determine the existence and extent of the spoliation, hampered by the defendants’ inconsistent and untruthful answers to questions about internet accounts and retention and destruction practices. The defendants failed to produce documents in compliance with court orders. Rimkus also expended significant time and effort to obtain some of the deleted emails and attachments.

Like an adverse inference instruction, an award of costs and fees deters spoliation and compensates the opposing party for the additional costs incurred. These costs may arise from additional discovery needed after a finding that evidence was spoliated, the discovery necessary to identify alternative sources of information, or the investigation and litigation of the document destruction itself.

35

Rimkus is enti

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tied to recover its costs and attorneys’ fees reasonably incurred in investigating the spoliation, obtaining emails from third-party subpoenas, and taking the additional depositions of Bell and Cammarata on the issues of email deletion. No later than March 1, 2010, Rimkus must provide affidavits and supporting bills and related documents showing and supporting the amount of those costs and fees.

B. The Perjury Allegations

Rimkus alleges that Bell and Cammarata perjured themselves during their depositions.

36

Perjury is offering “false testimony concerning a material matter with the willful intent to provide false testimony, rather than a as result of confusion, mistake, or faulty memory.”

United States v. Dunnigan,

507 U.S. 87, 94 , 113 S.Ct. 1111 , 122 L.Ed.2d 445 (1993). Perjury is not established by mere contradictory testimony from witnesses or inconsistencies in a witness’s testimony.

See Koch v. Puckett,

907 F.2d 524, 531 (5th Cir.1990).

Rimkus argues that inconsistencies between Bell’s deposition testimony and documents produced in this case establish that he committed perjury. Rimkus cites Bell’s deposition testimony that he did not take customer information or other confidential Rimkus information when he left the company and emails Bell sent in November and December 2006 soliciting work from individuals he dealt with while at Rimkus. Rimkus also points to the recently produced April 2008 email Bell sent himself that contained Rimkus customer information that appeared to have been created by Balentine while he was still employed at Rimkus and Bell’s testimony that he did not use Rimkus customer information in soliciting U.S. Forensic clients. Rimkus argues that Bell could not have obtained contact information for these individuals without using Rimkus customer lists and that Bell’s “denial of the use of Rimkus’s confidential client information in soliciting clients therefore is outright false.” (Docket Entry No. 313 at 25).

Rimkus’s arguments do not take into account Bell’s deposition testimony about how he obtained contact information and who he attempted to contact after he left Rimkus. Bell testified that when he first began soliciting business for U.S. Forensic, the internet was his primary source for obtaining contact information. He also used the Casualty Adjuster’s Guide. Bell testified that he “tried to get work from anybody that would send us work. It didn’t matter to me if they were a Rimkus customer, if they weren’t a Rimkus customer, I — I had to do it on my own — and, you know, many of the people that don’t use Rimkus were exactly the people we wanted to target.”

(Id.,

Ex. D, Deposition of Gary Bell, Vol. II at 62:15-:21). Although many of the emails show that U.S.

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Forensic focused its solicitation efforts on former Rimkus clients the U.S. Forensic founders knew, which is inconsistent with Bell’s testimony, the record is not sufficient to show that Bell committed perjury when he stated that he did not take Rimkus’s confidential customer contact information.

Rimkus argues that the April 2008 email Bell sent himself, with Rimkus client-contact information attached, makes Bell’s prior testimony that he did not take or use Rimkus client-contact information false. Although the April 2008 email is evidence that Bell had Rimkus client information after he left Rimkus, it does not establish that Bell took the information when he left Rimkus. Rimkus argues that Bell obtained the information from Balentine after Bell left Rimkus. Nor does it establish that Bell

used

this client-contact information to solicit Rimkus customers for U.S. Forensic. Sanchez’s affidavit also does not compel the conclusion that Bell used the contact information contained in the attachments to the April 2008 email because Sanchez’s affidavit and deposition testimony do not show that the only source of the contact information was the information contained in the email attachments or other Rimkus sources.

Rimkus also cites Bell’s deposition testimony about when he began telling potential clients about U.S. Forensic and soliciting business from them. Rimkus argues that this testimony is contradicted by the dates of emails from Bell to potential clients. Rimkus points to the following exchange in Bell’s deposition:

Q. Okay. Prior to November 16th, the date you began formal operations of U.S. Forensic—

A. Uh-huh.

Q. — did you have communications with any person that you knew to provide business to Rimkus Consulting Group about your starting a competing business?

A. I don’t believe so.

Q. Well, you would know; wouldn’t you?

A. No.

Q. So, as you sit here today, you can’t tell the ladies and gentlemen of the jury whether or not you contacted somebody or not? You just don’t know?

A. I think, I didn’t. We didn’t have insurance. We didn’t have engineers.

(Id.

at 63:13-64:4). Rimkus contrasts this testimony with two November 15, 2006 emails Bell sent Rimkus clients to tell them he was starting a new company. These emails do not prove perjury. Bell clearly testified that although he did not believe that he had contacted Rimkus clients about his new company before November 15, 2006, he was not sure. Given Bell’s uncertainty about when he contacted Rimkus clients on behalf of U.S. Forensic, the fact that two emails were sent one day before the date Bell was asked about does not establish that he intentionally gave false testimony.

Rimkus also argues that Bell falsely testified that he took precautions not to contact customers he knew to be Rimkus clients. Rimkus points to an email from Cammarata telling a former client that if he wanted Cammarata to work on the project to ask Rimkus to send the file but asking him not to forward the email to Rimkus and emails Bell sent in December 2006 to individuals Bell had worked with at Rimkus. (Docket Entry No. 394, Ex. F). These emails do not establish perjury. Bell testified that he

“generally

tried to avoid sending” marketing emails to Rimkus clients. (Docket Entry No. 313, Ex. D, Deposition of Gary Bell, Yol. II at

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57:20). The fact that some of the hundreds of marketing emails Bell sent on behalf of U.S. Forensic were sent to people Bell knew were Rimkus clients is not inconsistent with Bell’s testimony.

Rimkus also points to a recently produced email dated August 15, 2006, with a letter of intent to sublease office space in Louisiana, which states that Bell was in the process of separating from his company and was planning to use the space for four employees and to grow over five years. (Docket Entry No. 410, Ex. Supp. Q). Rimkus points to Bell’s previous testimony that he did not know he was leaving Rimkus and that he did not have a firm plan to form U.S. Forensic until after he left Rimkus. According to Rimkus, the letter of intent establishes that Bell’s earlier testimony that he did not have a firm plan prior to leaving Rimkus was false. (Docket Entry No. 410 at 13-23).

The passages of Bell’s deposition testimony that Rimkus cites do not show perjury. The testimony Rimkus points to shows that Bell did not provide a firm date on which the lease began or when he found the office space; Bell testified that it was “something like” November 5, but he did not know the exact date. (Docket Entry No. 410 at 20). Bell responded “maybe so” to a question asking if the lease started in October.

(Id.

at 21). Bell also testified that even if a lease was in place by October, there still was not a firm plan to form U.S. Forensic.

(Id.

at 22). Bell’s testimony is insufficient to show perjury.

Finally, Rimkus argues that Bell falsely testified that he did not use personal email accounts for “purposes related to Rimkus or U.S. Forensic” and that he did not try to get rid of evidence. (Docket Entry No. 313 at 27). Bell testified that during his “employment at Rimkus,” he used the Rimkus email system for Rimkus work, not a personal email account.

(Id.,

Ex. D, Deposition of Gary Bell, Vol. I at 17:21-25). When Rimkus completed a forensic analysis of its own computer system, it found a “cookie” showing that Bell accessed his BellSouth e-mail address on his Rimkus computer to forward documents to garylbell@gmail.com. Bell had previously specifically denied having a Gmail account. (Docket Entry No. 314, Deposition of Gary Bell, Vol. II at 247:20-248:1). Bell was not asked, and did not testify about, whether he used a personal email account for U.S. Forensic business.

When asked about deleting emails, Bell testified that he “didn’t try to get rid of anything that [he] thought [he] shouldn’t.”

(Id.,

Deposition of Gary Bell, Vol. I at 18:1-13). Later in his deposition, Bell admitted deleting all U.S. Forensic marketing-related emails.

(Id.,

Vol. II at 342:3-5). He also testified that he deleted some, but not all, of the emails on his computer to conserve server space,

(Id.,

Vol. I at 55:8), and that his deletion wasn’t “as, you know, planned as-as it could have been,”

(Id.

at 18:3-4). That is inconsistent with DeHarde’s testimony that some time in the summer or fall 2006, but before November 15, 2006, the founding members of U.S. Forensic agreed to delete all emails after two weeks in part out of space concerns. (Docket Entry No. 313, Ex. F, Deposition of Michael DeHarde at 34:21-25, 45:16-25).

Evidence in the record shows that Bell did delete emails relevant to his disputes with Rimkus, emails that he had a duty to preserve. The deletions occurred after Bell and others had decided to sue Rimkus and continued after they filed suit in Louisiana and were sued in Texas. The record shows that Bell’s testimony that he was not trying to delete emails relevant to this case was inconsistent and included some false information. The testimony delayed discovery and made it even more difficult and costly for Rimkus to obtain information that Bell deleted and destroyed from other sources. This testimony provides

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additional support for the adverse inference jury instruction and for the award of Rimkus’s fees and costs in identifying and litigating the spoliation.

See, e.g., Belak v. Am. Eagle, Inc.,

99-3524-CIV, 2001 WL 253608 , at *6 (S.D.Fla. Mar. 12, 2001) (awarding the defendant the attorneys’ fees incurred in moving to strike a pleading that contained false testimony). Rimkus is entitled to the fees and costs it incurred in attempting to recover the deleted emails from other sources and in redeposing the witnesses after those attempts. In addition, Rimkus is entitled to recover the reasonable costs and attorneys’ fees incurred in moving for sanctions based on Bell’s false testimony about getting rid of evidence.

Rimkus also alleges that Cammarata committed perjury. According to Rimkus, Cammarata falsely testified that he did not solicit Rimkus customers on behalf of U.S. Forensic. Rimkus argues that emails Cammarata sent to clients he worked with while employed at Rimkus show that his testimony was false. This argument is unpersuasive. Cammarata testified that he has “called people that used to be a client of [his] at Rimkus” since starting U.S. Forensic but that he did not recall sending marketing emails to such clients. (Docket Entry No. 314, Deposition of Niekie G. Cammarata at 114:25-115:1; 134:14-17). Cammarata testified that he “communicate[s] with some clients that way. A given client, I might do it regularly, but I don’t regularly communicate with all the clients via email.”

(Id.

at 134:18-23). The emails Rimkus cites were the subject of specific questions at Cammarata’s deposition. Cammarata testified that the emails were only to clients for whom he had open files when he resigned from Rimkus. Cammarata testified that after he gave Rimkus his two-week notice, “at least two, possibly three clients were pursuing my continuance on these files while I was at Rimkus. And within the two-week period I felt a duty to those clients, on behalf of their interest and Rimkus’ interest, to inform them that by November 15th I would no longer be with Rimkus.”

(Id.

at 112:16-23). The emails Rimkus relies on show that the clients contacted Cammarata to discuss open files. (Docket Entry No. 313, Exs. L, M). Cammarata responded by stating that he was with a new company but that if the client wanted him to continue working on the file, it could be transferred from Rimkus if the client contacted Rimkus to make those arrangements. Cammarata gave his new contact information and brief information about U.S. Forensic. These emails are consistent with Cammarata’s deposition testimony that he did not recall sending marketing emails to clients but that he did communicate with some existing clients about open files. These emails do not show that Cammarata provided false testimony.

Rimkus also alleges that Bell and Cammarata falsely testified that they did not have concrete plans to start U.S. Forensic until November 2006. Rimkus points to the evidence that before leaving Rimkus, Bell registered U.S. Forensic’s web site, met with his attorney, applied for a trademark, created a U.S. Forensic logo, created resumes on U.S. Forensic letterhead, and received a letter of intent to lease office space for U.S. Forensic. Corporate formation documents for U.S. Forensic were filed in October 2006, shortly after Bell resigned. Rimkus asserts that this evidence shows “there were definite plans being communicated among the members in direct contradiction to their testimony.” (Docket Entry No. 313 at 36).

The law is clear that taking preparatory steps to compete with an employer while still working for that employer is not actionable.

See Navigant Consulting, Inc. v. Wilkinson,

508 F.3d 277, 284 (5th Cir.2007) (“[U]nder Texas law, an at-will em

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ployee may properly plan to go into competition with his employer and may take active steps to do so while still employed Even the existence of a fiduciary relationship between employee and employer does not preclude the fiduciary from making preparations for a future competing business venture; nor do such preparations necessarily constitute a breach of fiduciary duties.” (quotation marks and citations omitted));

Ameristar Jet Charter, Inc. v. Cobbs,

184 S.W.3d 369, 374 (Tex.App.-Dallas 2006, no pet.) (holding there was no breach of fiduciary duty when an employee formed a competing business while still employed but did not actually compete with the employer until he resigned);

Abetter Trucking Co. v. Arizpe,

113 S.W.3d 503, 510 (TexApp.-Houston [1st Dist.] 2003, no pet.) (“An at-will employee may properly plan to compete with his employer, and may take active steps to do so while still employed. The employee has no general duty to disclose his plans and may secretly join with other employees in the endeavor without violating any duty to the employer.” (citation omitted));

see id.

at 511 (“To form his own company, Arizpe had to incorporate or otherwise establish a business entity, obtain permits, and obtain insurance. These were permissible preparations to compete, not breaches of a fiduciary duty.”).

A review of the deposition testimony Rimkus relies on does not reveal false statements. Bell did not testify that he did not take steps to form U.S. Forensic before leaving Rimkus. Bell testified that he and Cammarata, DeHarde, and Janowsky had vague discussions about going into business with one another and that there was no agreement to form U.S. Forensic until after Bell had left Rimkus. But there is no evidence that before Bell resigned, he communicated his preparations to Cammarata, DeHarde, or Janowsky. Cammarata testified that he was not asked to take any steps to organize information related to U.S. Forensic before leaving Rimkus on November 15, 2006. The record evidence is consistent with the deposition testimony of Bell and Cammarata. Bell took the preparatory steps to form U.S. Forensic. Bell and Cammarata did not testify falsely about when they agreed to form U.S. Forensic.

In sum, with one exception, the grounds Rimkus cites to urge this court to find that Bell and Cammarata committed perjury do not support such a finding.

C. The Additional Allegations of Failures to Comply with Court Orders and to Respond to Discovery Requests

Rimkus alleges that in addition to the spoliation allegations analyzed above, the defendants failed to comply with this court’s orders to produce reasonably accessible, relevant, nonprivileged electronically stored information and to determine the feasibility, costs, and burdens of retrieving electronically stored information that is not reasonably accessible. At the August 6, 2009 hearing, this court ordered the defendants to search the accessible sources and to produce electronically stored information relating to marketing efforts on behalf of U.S. Forensic or information obtained from Rimkus. On August 13, 2009, the defendants informed the court of their efforts to retrieve the information. This court held a hearing on August 17, 2009, and determined that considering the scant likelihood of recovering further responsive electronically stored information, the potential benefits of further retrieval efforts were outweighed by the costs and burdens. The defendants complied with this order.

The defendants’ failures to respond to discovery, as outlined in Rimkus’s motion for sanctions, were addressed at several hearings, and orders for further responses entered addressed the defendants’ objec

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tions to many of the discovery requests. Those issues were resolved and the defendants made further responses. Many of the defendants’ discovery responses were incomplete and untimely. But it is only fair to note that defense counsel was inundated with fourteen sets of requests for production, six sets of interrogatories, and seven sets of requests for admission. Some of Rimkus’s discovery requests were repetitive of previous requests. The alleged additional discovery deficiencies support the sanctions already imposed but do not justify additional measures.

D. Conclusion

There is evidence in the record showing that the defendants intentionally deleted emails after a duty to preserve had clearly arisen. There is evidence in the record showing that at least some of this lost evidence would have been relevant and favorable to Rimkus’s case. The loss of the evidence prejudiced Rimkus, though not irreparably. These failures have imposed significant costs on the parties and the court. Sanctions are appropriate. Accordingly, the court will allow the jury to hear the evidence of the defendants’ deletion of emails and attachments, and inconsistent testimony about the emails, the concealment of email accounts, and the delays in producing records and information sought in discovery. The jury will be instructed that if it decides that the defendants intentionally deleted emails to prevent them use in litigation against Rimkus, the jury may, but need not, infer that the deleted emails that cannot be produced would have been adverse to the defendants. Rimkus is also entitled to an award of attorneys’ fees and costs reasonably incurred in investigating the spoliation, obtaining emails from third-party subpoenas, taking additional depositions of Cammarata and Bell, and moving for sanctions based on the deleted emails and on Bell’s false testimony.

V. Rimkus’s Motion to Extend the Pretrial Motions Deadline

Rimkus has moved to extend the pretrial motions deadline on the basis that “discovery remains incomplete.” (Docket Entry No. 306 at 5). The discovery issues Rimkus complains about have been resolved. Yahoo! produced the subpoenaed information to this court on July 20, 2009. This court’s

in camera

review of the Yahoo! emails did not reveal any emails relevant to the defendants’ preparations to leave Rimkus and form U.S. Forensic or to any marketing or soliciting efforts by the defendants on its behalf. Rimkus’s outstanding discovery requests and the defendants’ responses to them have been fully heard and addressed.

The discovery in this case has been extensive. In addition to the litigation over the deleted emails and attachments, the parties have propounded numerous written discovery requests and taken dozens of depositions. Rimkus does not assert that it will file more motions if the deadline for doing so is extended or that it needs additional discovery in specific areas. Rimkus did not move for a continuance under Rule 56(f) in response to the defendants’ summary judgment motion. Instead, Rimkus argued that the evidence already in the record is sufficient to create fact issues precluding summary judgment. Since filing its motion to extend the pretrial motions deadlines, Rimkus has had additional opportunities to conduct discovery and supplement the summary judgment record. Since the motions for summary judgment were filed in July 2009, this court has held several discovery conferences and allowed further discovery and supplemental briefs and evidence. The record does not provide a basis to grant the relief Rimkus seeks. The motion to extend the pretrial motions filing deadline is denied.

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VI. The Defendants’ Motion for Summary Judgment

A. The Legal Standard

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.”

Triple Tee Golf, Inc. v. Nike, Inc.,

485 F.3d 253, 261 (5th Cir.2007) (citing

Celotex Corp. v. Catrett,

477 U.S. 317, 322-25 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.”

See Celotex,

477 U.S. at 325 , 106 S.Ct. 2548 . While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case.

Boudreaux v. Swift Transp. Co.,

402 F.3d 536, 540 (5th Cir.2005). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.”

Sossamon v. Lone Star State of Texas,

560 F.3d 316, 326 (5th Cir.2009) (quotation omitted),

petition for cert. filed,

77 U.S.L.W. 3251 (U.S. Nov. 2, 2009) (No. 08-1438). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.”

United States v. $92,203.00 in U.S. Currency,

537 F.3d 504, 507 (5th Cir.2008) (quoting

Little v. Liquid Air Corp.,

37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (per curiam)).

When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim.

Baranowski v. Hart,

486 F.3d 112, 119 (5th Cir.2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ”

Boudreaux,

402 F.3d at 540 (quoting

Little,

37 F.3d at 1075 ). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party.

Connors v. Graves,

538 F.3d 373, 376 (5th Cir.2008).

B. Claim Preclusion

The defendants argue that this entire suit should be dismissed because of the May 11, 2009 Louisiana state-court decision granting summary judgment on Rimkus’s reeonventional demand. The defendants argue that the Louisiana state-court judgment in favor of Bell, Cammarata, and DeHarde on Rimkus’s claims for breach of the covenant not to take or use Rimkus’s proprietary or trade secret information, breach of fiduciary duty, and disparagement was based on Texas law. The defendants argue that this decision precludes relitigation of any claims that were or could have been raised in Rimkus’s reconventional demands and requires dismissal of this suit.

The Full Faith and Credit Clause of the United States Constitution and its implementing statute, 28 U.S.C. § 1738 , govern the preclusive effect of a state-court judgment in a subsequent federal action.

37

Fi

*655

nal judgments of state courts “have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” 28 U.S.C. § 1738 . Under Full Faith and Credit, “[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. For claim and issue preclusion (res judicata) purposes, in other words, the judgment of the rendering State gains nationwide force.”

Baker ex rel. Thomas v. Gen. Motors Corp.,

522 U.S. 222, 233 , 118 S.Ct. 657 , 139 L.Ed.2d 580 (1998) (footnote omitted).

A federal court applies the rendering state’s law to determine the preclusive effect of a state court’s final judgment.

See

28 U.S.C. § 1738 ;

Migra v. Warren City Sch. Dist. Bd. of Educ.,

465 U.S. 75, 81 , 104 S.Ct. 892 , 79 L.Ed.2d 56 (1984);

see also Norris v. Hearst Trust,

500 F.3d 454, 460-61 (5th Cir.2007). This rule applies even if the rendering state’s judgment is based on public policy offensive to the enforcing state.

Baker,

522 U.S. at 233-34 , 118 S.Ct. 657 . Because enforcing states decide the scope of a judgment, a rendering state can “determine the extraterritorial effect of its judgment ... only ... indirectly by prescribing the effect of its judgments within the State.”

Thomas v. Wash. Gas Light Co.,

448 U.S. 261, 270 , 100 S.Ct. 2647 , 65 L.Ed.2d 757 (1980). “To vest the power of determining the extraterritorial effect of a State’s own ... judgments in the State itself risks the very kind of parochial entrenchment on the interests of other States that it was the purpose of the Full Faith and Credit Clause and other provisions of Art. TV of the Constitution to prevent.”

Id.

at 272 , 100 S.Ct. 2647 .

The Louisiana

res judicata

statute states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

La.Rev.Stat. § 13:4231. Louisiana courts have observed that this statute “embraces the broad usage of the phrase

res judicata

*656

to include both claim preclusion

(res judicata)

and issue preclusion (collateral estoppel).”

Am. Med. Enters., Inc. v. Audubon Ins. Co.,

2005-2006, p. 6 (La.App. 1 Cir. 6/8/07); 964 So.2d 1022, 1028 .

Under claim preclusion, the

res judicata

effect of a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus,

res judicata

used in the broad sense has two different aspects: (1) foreclosure of re-litigating matters that have never been litigated, but should have been advanced in the earlier suit; and (2) foreclosure of relitigating matters that have been previously litigated and decided.

Id.

(citing

Five N Company, L.L.C. v. Stewart,

02-0181, p. 15 (La.App. 1 Cir. 7/2/03); 850 So.2d 51, 61 ).

The claim preclusion aspect of

res judicata

applies under Louisiana law “when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties in the two matters are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.”

Smith v. State,

04-1317, p. 22 (La.3/11/05); 899 So.2d 516, 529-30 .

1. Finality

Rimkus argues that the summary judgment ruling in Louisiana is not final for purposes of preclusion because it is “subject to vacation and revision” on appeal, (Docket Entry No. 321-1 at 1), “such that this litigation does not constitute an impermissible collateral attack on a decision already made.”

(Id.

at 7). Rimkus argues that the Louisiana

res judicata

statute provides that “a valid and final judgment is conclusive between the same parties, except on appeal or other direct review.” (Docket Entry No. 353 at 2). As a result, according to Rimkus, a state court decision on appeal cannot be a final judgment for

res judicata

purposes.

Courts applying Louisiana law have rejected the argument that a pending appeal from a trial court’s judgment defeats finality for preclusion purposes. In

Fidelity Standard Life Insurance Co. v. First National Bank & Trust Co. of Vidalia, Georgia,

510 F.2d 272, 273 (5th Cir.1975) (per curiam), the plaintiff sued in federal district court to enforce a judgment against the defendant obtained in Louisiana state court. The federal district court held that the Louisiana judgment was entitled to full faith and credit.

Id.

On appeal, the Fifth Circuit rejected the contention that the Louisiana judgment was not final for

res judicata

purposes because it was on appeal in the state courts.

Id.

The court held that “[a] case pending appeal is res judicata and entitled to full faith and credit unless and until reversed on appeal.”

Id.

Similarly, in

Energy Development Corp. v. St. Martin,

296 F.3d 356, 360-61 (5th Cir.2002), the Fifth Circuit analyzed Louisiana’s

res judicata

statute and held that a state court judgment is final for

res judicata

purposes when the trial court enters judgment. The Fifth Circuit relied on comment (d) of the Louisiana statute, which provides that the “preclusive effect of a judgment attaches once a final judgment has been signed by the trial court and would bar any action filed thereafter unless the judgment is reversed on appeal.”

Id.

(quoting La.Rev.Stat. § 13:4231, comment (d)). In

Maples v. LeBlanc, Maples & Waddell, LLC,

No.

*657

Civ. A. 02-3662, 2003 WL 21467540 (E.D.La. June 20, 2003), the plaintiff argued that a prior Louisiana state court decision was not final because it was on appeal and the Louisiana

res judicata

statute provides that “a valid and final judgment is conclusive between the same parties,

except on appeal or other direct review,” id.

at *3. The court rejected this interpretation of the statute because it was inconsistent with the case law and with comment (d) of the Louisiana

res judicata

statute.

Id.

at *4 .

One Louisiana court has held that a judgment is not final while an appeal is pending.

See Dupre v. Floyd,

01-2399, p. 4 (La.App. 1 Cir. 7/1/02); 825 So.2d 1238, 1240 . But that court relied on “[t]wo older cases under prior law,”

Mente & Co. v. Anciens Etablissements Verdier-Dufour & Cie,

177 La. 829 , 149 So. 492, 493 (1933), and

Richmond v. Newson,

24 So.2d 174, 175 (La.App. 2 Cir.1945), which involved a narrower version of Louisiana preclusion law. Before the 1991 statutory amendments, Louisiana law on

res judicata

was substantially narrower than federal law.

See Terrebonne Fuel & Lube, Inc. v. Placid Refining Co.,

95-0654 (La.1/16/96); 666 So.2d 624, 631 . The original Louisiana doctrine of

res judicata

was based on presuming the correctness of the prior judgment rather than on extinguishing the causes of action that might have been raised in the litigation that led to that judgment.

See id.

at 631-32 . The court in

Dupre

relied on cases that were based on that presumption of correctness, ignoring the fact that the current version of Louisiana

res judicata

law is more like federal law in using the transaction-oroceurrence test to determine the preclusive effect of a prior judgment. Under federal law, a final judgment of a federal trial court is preclusive until that judgment is modified or reversed. “[T]he established rule in the federal courts [is] that a final judgment retains all of its

res judicata

consequences pending decision of the appeal ... [.]”

Pharmacia & Upjohn Co. v. Mylan Pharms., Inc.,

170 F.3d 1373, 1381 (Fed.Cir.1999) (third alteration and omission in original) (quoting

Warwick Corp. v. Md. Dep’t of Transp.,

573 F.Supp. 1011, 1014 (D.Md.1983),

aff'd,

735 F.2d 1359 (4th Cir.1984)).

The

Restatement (Second) of Judgments

recognizes this view of finality — that the pendency of an appeal should not suspend the operation of a judgment for purposes of

res judicata

or collateral estoppel' — as “[t]he better view.” Restatement (Second) of Judgments § 13, cmt. f (1982);

see also

18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4433, at 94 (2d ed. 2002) (“Despite the manifest risks of resting preclusion on a judgment that is being appealed, the alternative of retrying the common claims, defenses, or issues is even worse. All of the values served by

res judicata

are threatened or destroyed by the burdens of retrial, the potential for inconsistent results, and the occasionally bizarre problems of achieving repose and finality that may arise.”).

The cases make clear that a pending appeal does not affect the finality of a Louisiana state trial court’s judgment for

res judicata

purposes.

See Tolis v. Bd. of Supervisors of La. State Univ.,

95-1529 (La.10/16/95); 660 So.2d 1206, 1206-07 (per curiam) (“A final judgment is conclusive between the parties except on direct review. La.Rev.Stat. 13:4231.... Once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction, in the sense of power and authority, to modify, revise or reverse the judgment, regardless of the magnitude of the error in the final judgment.”).

38

The part of the

*658

Louisiana

res judicata

statute that Rimkus quotes — “a valid and final judgment is conclusive between the same parties, except on appeal or other direct review” — means that a trial court’s final judgment has preclusive effect except in those courts reviewing the judgment on direct appeal or collateral challenge. The May 11, 2009 Louisiana state-court judgment dismissing on summary judgment the claims in Rimkus’s reconventional demand is a final judgment for preclusion purposes.

2. Identity of Parties

Rimkus also argues that the parties in the two suits are not the same because U.S. Forensic, a defendant in this suit, was not involved in the Louisiana state-court litigation. The defendants respond that U.S. Forensic is in privity with Bell and Cammarata, who were parties to the Louisiana litigation. The identity of parties requirement is satisfied “whenever the same parties, their successors, or others appear, as long as they share the same quality as parties or there is privity between the parties.”

Austin v. Markey,

08-381, p. 5 (La.App. 5 Cir. 11/25/08); 2 So.3d 438, 440 (quoting

Smith v. Parish of Jefferson,

04-860 (La.App. 5 Cir. 12/28/04) ; 889 So.2d 1284, 1287 );

see also Burguieres v. Pollingue,

02-1385, p. 8 n. 3 (La.2/25/03); 843 So.2d 1049 , 1054 n. 3. In general, “ ‘privity’ is the mutual or successive relationship to the same right of property, or such an identification in interest of one person with another as to represent the same legal right.”

Five N Company, L.L.C. v. Stewart,

2002-0181, p. 16 (La.App. 1 Cir. 7/2/03); 850 So.2d 51, 61 . Privity exists for

res judicata

purposes: “(1) where the non-party is the successor in interest to a party’s interest in property; (2) where the non-party controlled the prior litigation; and (3) where the non-party’s interests were adequately represented by a party to the original suit.”

Condrey v. Howard,

No. 28442-CA, p. 5 (La.App. 2 Cir. 8/21/96); 679 So.2d 563, 567 .

The record shows an identity of interest between Bell and Cammarata on the one hand and U.S. Forensic on the other. Bell, Cammarata, and DeHarde, the plaintiffs in the Louisiana litigation, own 75% of U.S. Forensic. The actions of Bell and Cammarata — the defendants in this federal case — in leaving Rimkus, forming U.S. Forensic, and competing with Rimkus are the basis of both the Louisiana litigation and this case. Rimkus seeks to hold U.S. Forensic liable with Bell and Cammarata for these actions. Bell and Cammarata represented U.S. Forensic’s interests in the Louisiana litigation in seeking to have the noncompetition and nonsolicitation covenants declared unenforceable. The identity of parties requirement for preclusion is met.

3. The Relationship of the Claims

Rimkus contends that the claims in this suit and the Louisiana suit do not arise out of the same transaction or occurrence because the Louisiana state-court judgment did not involve Rimkus’s federal claims for cyberpiracy and trademark infringement, (Docket Entry No. 321-1 at 8-9), and the Louisiana court could not decide the Texas contract and tort claims Rimkus raised, (Docket Entry No. 324 at 12). Rimkus argues that, notwithstanding that both it and Bell and Cammarata argued Texas (as well as Louisiana) law in the briefs they filed on the Bell and Cammarata motion for summary judgment, the Louisiana

*659

court “could not evaluate the issues in dispute under Texas law.”

(Id.).

Claim preclusion applies to bar in a subsequent suit all “claims that were or could have been litigated in a previous lawsuit.”

Horacek v. Watson,

06-210, p. 3 (La.App. 3 Cir. 7/5/06); 934 So.2d 908, 910 (quoting

Walker v. Howell,

04-246, p. 2 (La.App. 3 Cir. 12/15/04); 896 So.2d 110, 112 ). Under Louisiana law, a defendant is required to “assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.” La. Code Civ. Proc. art. 1061(B). Rimkus asserted its claims for breach of the non-competition and nonsolicitation covenants in its reconventional demands. The Louisiana court ruled that, despite the Texas forum-selection and choice-of-law provision in the Employment Agreement, Louisiana law applied to invalidate the covenants. Louisiana law prevented Rimkus from litigating the noncompetition and nonsolicitation claims under Texas law in the Louisiana court. As this court previously held, the Louisiana court’s ruling that Louisiana law applies in Louisiana to invalidate the Texas forum-selection and choice-of-law provisions in the Employment Agreement does not invalidate those provisions in all states. Because Rimkus could not have litigated its Texas-law claims for breach of the noncompetition and nonsolicitation covenants in the Louisiana state court, claim preclusion does not apply to those claims. The defendants’ motion for summary judgment dismissing this case based on claim preclusion is denied.

As discussed below, the Louisiana court entered a valid and final judgment under Texas law on Rimkus’s reconventional demand for misappropriation of trade secrets, breach of fiduciary duty, and disparagement, satisfying the Louisiana elements for preclusion.

See Smith v. State,

04-1317, p. 22 (La.3/11/05); 899 So.2d 516, 529-30 . However, whether analyzed under issue or claim preclusion, the defendants’ spoliation of evidence warrants applying the Louisiana statutory exception to

res judicata.

The defendants’ spoliation prevented Rimkus from litigating its misappropriation and related claims in Louisiana. The spoliation justifies granting Rimkus relief from preclusion under the statute.

C. Issue Preclusion

The defendants alternatively argue issue preclusion. Each of the allegedly precluded issues is analyzed below.

1. Noncompetition and Nonsolicitation Covenants

On January 4, 2008, the Louisiana state appellate court ruled that the noncompetition clause

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