Trade Secret Theft Litigation

Trade Secret Theft

Enigma Forensics CEO & President Lee Neubecker and Johnson & Bell Attorney Joseph Marconi sit down to discuss Trade Secret Theft Litigation. They identify ways a company can safeguard themselves against trade secret theft. Lee discusses how Enigma Forensics provided a forensic copy of a critical hard drive that won an important case. Joseph emphasizes that when an employee leaves a company the importance to verify what information was there, where it went, and to whom it was sent. If you suspect someone in your organization is stealing trade secrets call Enigma Forensics or Johnson & Bell to help you recover your information and minimize the damage.

The transcript of the Trade Secret Theft video follows:

Lee Neubecker: Today I’m here with Joe Marconi from Johnson and Bell, who’s going to talk a little bit about trade secret litigation cases he’s been involved with, and how computer forensics has played a key role in getting success for him and his clients. Joe, thanks for being on the show.

Joe Marconi: Thank you Lee, it’s good to see you again.

Lee Neubecker: Joe, we started working together a long time ago. The first case that we had was one of my very first forensic expert cases ever. I think it was back in 2002 or 2003. It was the Lebert matter. Can you tell us a little bit more about what the issues were involved there and ultimately what happened in that case.

Joe Marconi: Yeah, that was Lebert versus Maiser. It was a trade secrets case. And we actually tried it in a bench trial and it went to the appellate court twice. And the appellate court actually quoted from your testimony at the trial and in that case, it was a sales distributor who we sued their top salesman. We represented the manufacturer and the local distribution company. And you were able to prove that before their key employee sales representative left the distributor, he downloaded a number of files. Shortly before or a couple of weeks before. And as with other trade secrets cases that I’ve been involved in, and I’ve tried several, computer forensics are very important. And you’ve been helpful, I think in three or four of them, Lee.

Lee Neubecker: I remember we had one case we worked on where your firm was being accused of exploitation of evidence. Can you tell people a little bit about that?

Joe Marconi: In that case, that case involved again, and typically what happens, the trade secrets case, it’s usually an employee leaves the company or a sales distribution company, terminates a contract with the manufacturer. And in the process, they take trade secrets. In this case, again, it was a local distributor. The case involved a company that distributed wines from all over the world. The new employer of the local distributor hired us to defend it and its former, and its now current employee. And we had her computer and we did and you did a forensic hard drive of the computer. You made a forensic copy of the hard drive, and it was blank. And the courts accused not the firm, but this particular distributor of destroying evidence. And that was the key issue in the case. And during trial, we had an unusual moment. In the night before the testimony by your forensic expert, you were able to open it up and show that nothing was really destroyed. And at trial that day, the other side’s forensic expert made a big point about how this hard drive had been wiped, and it had been wiped to destroy evidence of her misappropriation of trade secrets. And we then put on your forensic expert, and he testified. And we displayed it with a screen and everything, and he opened it up and the judge threw her pencil down on the desk, looked at her law clerks who were sitting there and said, “this does not happen every day.”

Lee Neubecker: I recall that was a situation where the hard drive, the other experts said the hard drive was completely wiped clean based on his testing of that drive on a PC, but in fact, I had my expert stay late that night and connect the drive to all different types of computers, and when it was connected to a Macintosh computer, lo and behold, it prompted for a password to decrypt the hard drive, so the hard drive was actually encrypted. And once a password was supplied, voila, it wasn’t a drive empty, but it had all the data. And the judge certainly was animated. I think the transcript on that was a really interesting case.

Joe Marconi: And the opponent’s expert had no clue, that was the, and the lawyer said to me afterwards, “I’m going to sue that guy.” The lawyer for the opponent.

Lee Neubecker: I felt bad for the expert, but that’s one of the problems that happens when you hire a computer forensic expert that hasn’t been doing it for a very long time. Problems can happen and mistakes happen.

Joe Marconi: Right. And for the most part, in the times that we’ve used you, have dealt with trade secrets. And I also remember the case that we recently tried last year in federal court, regarding a Chinese manufacturer. And again, an employee left a manufacturing company, started a competitive distributorship here in Chicago, and employed a Chinese manufacturer to make products for the same market. And the local manufacturer claimed that he had taken the plans and designs of the products and had given them to the Chinese manufacturer. And you helped us disprove that, or also helped us to prove that they couldn’t prove that that happened. So that’s another example of a trade secrets case. So I find computer forensics almost an essential part of any trade secrets case.

Lee Neubecker: So you’ve had experience being on kind of all sides, the firm that lost employee, the firm that hired the employee, and you’ve been able to get good results for your client, whether they’re plaintiff or defense.

Joe Marconi: The issues are the same no matter what side you are, and there’s not really only plaintiffs trade secrets lawyers, and defense lawyers. You either defend them or you prosecute ’em. And I’ve done both over the years. It’s a fascinating area of the law. And it’s something that every company deals with when they lose an employee, when they lose a manufacturer. And you know, as a matter of course, when one of my clients lose a sensitive employee that has confidential information, one of the first things I do is call you to make a forensic hard drive of that person’s computer before anyone opens the file and in any way causes it to change at all. And you can explain why that’s important.

Lee Neubecker: Well, I appreciate you calling me when that happens. Thanks, Joe. Well if you want to know more about computer forensics, please check out our blog. My blog’s at leeneubecker.com. And you can also find Joe and Joe’s contact information there. Thank you, Joe.

Joe Marconi: Thank you.

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