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Mintel International Group, Ltd. v. Neerghen

February 3, 2009

MINTEL INTERNATIONAL GROUP, LTD, A UNITED KINGDOM CORPORATION, PLAINTIFF/COUNTER-DEFENDANT,
v.
MEESHAM NEERGHEN, AN INDIVIDUAL DEFENDANT/COUNTER-PLAINTIFF.



The opinion of the court was delivered by: Hon. Maria Valdez United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff's Supplement to Motion for Extended Expert Discovery; Supplement to Plaintiff's Objections to Magistrate Judge Valdez's December 23, 2008 Order; and Motion for Reconsideration of the Court's December 23, 2008 Ruling Based Upon Newly Discovered Evidence ("Motion for Reconsideration") [Doc. No. 181]. Mintel seeks a reconsideration of this Court's December 23, 2008 Order [Doc. No. 177] denying it a "mirror image" or "Round 1 Report" of third party Datamonitor's computers based on newly discovered evidence. For the reasons stated below, the Court DENIES Mintel's Motion for Reconsideration.

In its Complaint filed on July 11, 2008, Mintel alleges that prior to leaving his employment with Mintel Defendant Neergheen e-mailed Mintel documents to his personal e-mail account. Mintel was aware of the activity and demanded that Defendant not use the documents. Based, in part, on Defendant Neergheen's taking of Mintel documents and his employment at third party Datamonitor, Mintel filed this action alleging violations of the Illinois Trade Secrets Act, Computer Fraud Abuse Act, and violations of various terms of Defendant's employment contract with Neergheen.

A recounting of Mintel's previous attempts to obtain a mirror image of third-party competitor Datamonitor's computers is appropriate. Mintel has now sought a mirror image of Datamonitor's computers in five different motions before this Court. See Motion to Compel Datamonitor's Compliance with Subpoena [Doc. No. 53]; Motion to Compel Datamonitor's Compliance with Subpoena and Rule 30(B)(6) Notice of Deposition [Doc. No. 133]; Plaintiff's Motion to Reconsider [Doc. No. 153]; Emergency Motion to Compel Datamonitor's Compliance with Subpoena and Court Order [Doc. No. 171]; and Plaintiff 's Motion for Reconsideration [Doc. No. 181].

Mintel's initial attempt at obtaining access to the Datamonitor computers was on August 28, 2008. In its Motion to Compel Datamonitor's Compliance with Subpoena [Doc. No. 53], Mintel argued that Neergheen had spoliated documents on a laptop computer and based on this alleged spoliation they should in turn be entitled to a mirror image of Datamonitor's computers. This motion was denied without prejudice.

Subsequently, on October 2, 2008 Mintel filed its Motion to Compel Datamonitor's Compliance with Subpoena and Rule 30(B)(6) Notice of Deposition [Doc. No. 133]. Plaintiff argued that it was entitled a mirror image of Datamonitor's computers based on Defendant's production of approximately forty Mintel documents that Plaintiff was not aware were in Defendant's possession when they filed suit. Plaintiff argued that, "Mintel should not be forced to rely upon Defendant's mere assertion that he has not used Mintel's confidential information to date. The information obtained from Defendant's Datamonitor computer(s) and work e-mail account is relevant to determine Defendant's veracity on the issue of whether Defendant has used the misappropriated Mintel documents and information" Id. ¶ 6. While Mintel was skeptical that Neergheen had produced copies of all the documents he took from Mintel that reason alone was not sufficient to warrant the drastic measure of having unfettered access to a competitor's computers and thus the motion was denied. Instead, taking into account Plaintiff's concerns this Court fashioned a remedy that would have allowed Mintel to provide a list of search terms for Datamonitor's expert to conduct a search of the Datamonitor computers and Datamonitor would produce Mintel documents if any were found. November 17, 2008 Mem. Op. and Order [Doc. No. 151] at 5. Plaintiff choose not to avail itself of the relief granted. See December 23, 2008 Order [Doc. No. 177] ("Plaintiff waives additional search as ordered by this court on November 17, 2008.").

Instead, four days after issuing an order that would have allowed for a search of Datamonitor's computers, Plaintiff filed a motion for reconsideration [Doc. No. 153]. In this motion, Plaintiff argued that they had obtained "new" evidence from Microsoft Corporation that Defendant had accessed his personal email account at Datamonitor and may have transferred Mintel documents. Mintel asserted that they should be allowed a mirror image of Datamonitor's computers based on the "new" evidence. Pl.'s Mot. to Recons. [Doc. No. 153] ¶ 7. The "new" evidence that Neergheen accessed his personal email was not in fact new but duplicative of testimony provided by the Defendant during his deposition and the motion for reconsideration was denied. December 3, 2008 Order [Doc. No. 163].

On December 18, 2008, Plaintiff filed its Emergency Motion to Compel Datamonitor's Compliance with Subpoena and Court Order [Doc. No. 171]. In this motion, Plaintiff asserted that Datamonitor was already in possession of a mirror image and would suffer no prejudice by providing a copy of it to Plaintiff. Despite the fact that this Court has consistently denied Plaintiff's requests for a mirror image of Datamonitor's computers, Plaintiff argued that, "With regard to a Round 1-style report derived from the August 28, 2008 forensic image of Datamonitor's computer, there is absolutely no grounds for Datamonitor withholding such a report." Pl.'s Emergency Mot. to Compel Datamonitor's Compliance with Subpoena and Court Order [Doc. No. 171] ¶ 25. This Court denied Plaintiff's request that Datamonitor provide it with a Round 1-style report, but did agree to extend expert discovery as to USB drives produced by Neergheen for the purpose of attempting to match USB ports with computer and printer names saved on those USB drives. See, December 23, 2008 Order [Doc. No. 177].

With the long history recounted, the Court will now address the current motion for reconsideration [Doc. No. 181] before the Court. Plaintiff's motion is based on newly discovered evidence. The newly discovered evidence they rely upon is contained in Plaintiff's expert's second affidavit attached as Exhibit D to their motion. Plaintiff's forensic expert conducted a forensic analysis of USB drives 006 and 007 produced by Defendant in mid-September. Plaintiff's expert found that proprietary Mintel documents were stored on the USB drives; fragments of Mintel documents remained on the USB drives; and a document contained on the USB drive 006 had been printed on Datamonitor's print server "Thames." (Mot. for Recons. Ex. D, ¶¶7, 9, 13). Plaintiff's expert also opined that data on the USB drives had been overwritten (what the expert terms as "wiping") to make recovery impossible.

At the December 23rd hearing on the "emergency motion" plaintiff sought to have third-party Datamonitor provide them an inventory list of all of Datamonitor's computers and computer devices without disclosing the extent of discovery gleaned from the USB drives. Plaintiff's sole basis for the motion was that their expert had identified the names of certain computer devices that the USB devices had been connected to at some point. Instead of disclosing the list of the computer devices once associated with the USB files Mintel sought an inventory of all computer devices from Datamonitor. Datamonitor refused to conduct an inventory arguing that it would take up time and resources and instead offered to compare the list of computer devices Jones had discovered were associated with the USB devices with the Datamonitor computers. This Court denied Plaintiff's request for the inventory and ordered the relief agreed to by Datamonitor. Motion for Reconsideration [Doc. No. 181] ¶ 2, Ex. B. The Court left open the possibility for additional discovery depending on the results of Datamonitor's comparison of the list to their devices. On December 31, 2008, Datamonitor certified that one computer device found on Jones' list as being associated with Datamonitor. Id. ¶ 4. That device was the "Thames" Datamonitor print server. Id. ¶ 3, Ex. C.

Armed with this knowledge, Plaintiff's expert was able to a ascertain that a document found on USB drive 006 had been printed on Datamonitor's print server "Thames." Id. ¶ 9, Ex. D 1/2/09 Jones Aff. ¶ 4. Plaintiff argues that USB drive 006 provides a link between Mintel documents and Datamonitor's computers. Id. ¶ 9. In addition, Mintel's forensic expert opines that based on the hex "FF" pattern displayed on certain unused portions of the USB drives Neergheen used a wiping utility to overwrite large amounts of file data on those drives. Id. ¶ 6. Mintel argues that based on this newly discovered evidence they are entitled to a forensic image of Datamonitor's computer "to determine the extent to which Mintel's documents exist(ed) or have been printed from the Datamonitor network." Id. ¶ 16.

Defendant asserts that because Plaintiff has been in possession of the USB drives since mid-September none of the evidence gleaned from the devices can be considered "new." Opp. to Mintel's Mot. For Recons. at 2. In addition, Neergheen argues that the only document printed on the Datamonitor printer was his resignation letter from Mintel and, as such, this fact is not relevant to the claims or defenses raised in this case. Opp. to Mintel's Mot. For Recons. [Doc. No. 187]at 11. Defendant also has his own forensic expert who opines that the hex "FF" pattern Plaintiff's expert identifies as evidence of wiping is actually the manufacturer setting used to denote null spaces on the USB device. Id. at 12.

The parties do agree on two things with regard to the USB drives produced by Defendant. They agree that the USB drives contained two proprietary Mintel documents as well as fragments of other Mintel documents. Specifically, USB drive 006 contained a Mintel PowerPoint presentation entitled "Trends in Global Beverage Launches" dated October 29, 2007 and USB drive 007 contained a document entitled "IFT_ANNUALMTG_FOOD_EXPO_2007_MINTEL_018005363.csv." Motion for Reconsideration [Doc. No. 181] ¶¶ 7, 10; Opp. to Mintel's Mot. For Recons., Ex. C 1/6/09 Reisman Decl. [Doc. No. 187-4] ¶¶ 11, 12; Reply in Supp. of its Supplement to Mot. to Extend Expert Disc. and Pl.'s Objections to Magistrate's December 23, 2008 Order; and Mot. for Recons. of the Ct.'s December 23, 2008 Ruling Based on Newly Discovered Evidence, Ex. D 1/8/09 Jones Aff. ¶ 17. The parties also agree that the only document printed on Datamonitor's "Thames" print server network from ...


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