Freedom Medical Inc. v. SEWPERSAUD

The defendant was a former employee of the plaintiff who defected to a competitor and contacted customers of the plaintiff. The plaintiffs obtained a preliminary injunction enforcing a covenant not to compete. In addition, the TRO required the defendant to preserve all documents and information in whatever form. The Court made clear to Sewpersaud’s counsel, in Sewpersaud’s presence, that “he needs to understand that it’s critical that [relevant information on his electronic devices] be retained and that he’ll need to make those devices available for some reasonable period of time.” The Court then converted the TRO into a preliminary injunction. The defendants thereafter failed to obey the court’s preliminary injunction causing the the court to consider whether Defendants Sewpersaud and Rotec should be held in civil contempt for violating the Court’s orders.

The primary electronic discovery issue, in this case, was whether Sewpersaud’s actions, in violation of the TRO and PI, including the deletion of over 100,000 text messages and thousands of WhatsApp messages, would support a finding of civil contempt against Sewpersaud.

The court held Sewpersaud in civil contempt violating the preliminary injunction by continuing to violate his non-competition covenant and failing to preserve electronically stored information. Sewpersaud testified under oath that he earlier changed his iPhone retention settings (causing the 100,000 deletions), but computer forensics showed that the settings change was made less than an hour before he was forced to turn over his device for inspection. His explanation of whether the deletion was intentional was inconsistent when comparing his deposition statements and his testimony before the court. For his emails, the plaintiff initially conceded it could not precisely pinpoint when the emails were deleted, but this was because Sewpersaud did not provide password information to his email accounts, despite the preliminary injunction directing him to cooperate in the inspection of his electronics. Once the court specifically ordered Sewpersaud to turn over his password, a full inspection showed that the defendant deleted as well.

Order

Plaintiff’s Motion for Order to Show Cause

Defendant Usine Rotec Inc.’s Response to Order to Show Cause

Order to Show Cause