## Facts

- Rimkus Consulting Group, Inc., a forensic engineering contractor, employed Nickie G. Cammarata and Gary Bell under agreements containing noncompetition and nonsolicitation provisions, along with Texas choice-of-law and forum-selection clauses.
- Cammarata and Bell left Rimkus and formed or joined a competing firm, U.S. Forensic, LLC and related entities.
- Before the federal action, Cammarata and Bell filed Louisiana state-court suits seeking declarations that the restrictive covenants were invalid under Louisiana law.
- The Louisiana court applied Louisiana choice-of-law rules and held the noncompetition and nonsolicitation clauses invalid and unenforceable under Louisiana public policy.
- Rimkus later sued in federal court in Texas, asserting claims including breach of restrictive covenants, misappropriation of trade secrets, unfair competition, breach of fiduciary duty, and other business torts.
- During discovery, Rimkus alleged defendants deleted relevant emails and other electronically stored information (ESI), including through short retention practices, disposal of devices, and delayed or incomplete disclosure that obscured the scope of deletion.

## Issues

1. When did defendants’ duty to preserve potentially relevant ESI arise for purposes of spoliation analysis?
2. What showing is required for severe spoliation sanctions, and what sanction was warranted on this record?
3. In a diversity case, whether federal or state law governs spoliation sanctions and related evidentiary consequences.
4. Whether the prior Louisiana judgment precluded Rimkus’s Texas claims, and whether spoliation affected the preclusion analysis.
5. Whether defendants were entitled to summary judgment on Rimkus’s substantive claims, including trade secrets, fiduciary duty, business disparagement, and tortious interference.

## Decision

- The court granted in part and denied in part Rimkus’s motions for spoliation sanctions.
- The court found defendants had a duty to preserve ESI by the time they were preparing to file their preemptive Louisiana litigation challenging the covenants, and that subsequent deletions violated that duty.
- The court found intentional, bad-faith spoliation and imposed an adverse-inference jury instruction as the principal evidentiary sanction, plus attorneys’ fees and costs tied to investigating and litigating the spoliation.
- The court declined to impose terminating sanctions such as default judgment or striking pleadings.
- The court held federal law governs spoliation sanctions in diversity cases.
- The court held the Louisiana judgment did not preclude Rimkus’s trade-secret and related claims because bad-faith spoliation constituted “exceptional circumstances” under Louisiana’s statutory preclusion framework.
- On summary judgment, the court denied summary judgment on misappropriation of trade secrets and breach of fiduciary duty (fact issues remained), but granted summary judgment for defendants on business disparagement and tortious interference with existing contracts.

## Legal Principles

- A party’s duty to preserve evidence arises when litigation is reasonably anticipated; preparing to file suit can trigger the obligation.
- Spoliation sanctions in federal court are governed by federal procedural and evidentiary standards in diversity cases.
- Severe spoliation sanctions require proof of bad faith; an adverse-inference instruction generally also requires a showing that the lost evidence was relevant and its absence prejudicial.
- When a Federal Rule (such as Rule 37) directly addresses the misconduct, the court should apply that rule rather than relying solely on inherent authority.
- Bad-faith spoliation can affect claim- or issue-preclusion analysis when it prevents full and fair litigation, supporting application of an “exceptional circumstances” exception under applicable preclusion law.

## Conclusion

The court determined that former employees intentionally destroyed relevant ESI after their duty to preserve arose, warranting an adverse-inference instruction and fee shifting but not default judgment; it applied federal spoliation standards in a diversity case, declined to treat a prior Louisiana judgment as preclusive due to exceptional circumstances arising from spoliation, and allowed the trade-secret and fiduciary-duty claims to proceed while disposing of business disparagement and tortious-interference claims on summary judgment.


Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010)