In Realpage Inc. v. Enter. Risk Control, LLC, 2017 BL 102339 (E.D. Tex. 2017), the court ordered Enterprise Risk Control, LLC (“Enterprise”) to produce forensic images of devices used by a former Realpage employee to a forensic neutral in order to determine whether any source code was recoverable pertaining to Realpage’s allegations of misappropriation.

Background

After leaving employment with Realpage in 2012, Tom Bean (“Bean”) started his own software development company named IDC. Bean and IDC were hired by former Realpage employee, and active Enterprise employee, Lonnie Derden (“Derden”) to design a vendor compliance application that was “completely different” than the one in place at Realpage. In July 2013, Enterprise hired Bean as a full-time employee and it was at that time that Bean transferred all of his source code for the vendor compliance application from IDC’s computers to Enterprise’s computers. According to Bean’s affidavit, he deleted all versions of his source code from IDC’s computers after the transfer.

Pursuant to this lawsuit, Enterprise made the vendor compliance application source code from July 2013 to the present available to Realpage for their analysis. During their review, Realpage found comments in the source code referencing dates from 2012 and early 2013, which Realpage argued indicated that versions of the source code from that point in time must exist. While the court rejected this argument, they recognized that Realpage’s complaints surround code that existed on or before the date that Bean transferred the source code to Enterprise. The court concluded that “a tailored [forensic] examination is appropriate at this time to determine whether the missing code is recoverable or to enable effective cross-examination as to its destruction.” Id. at *2. Continue Reading Court Orders Enterprise to Engage in Forensic Imaging and Analysis

As part of its Working Group on Electronic Document Retention & Production, the Sedona Conference recently released a “TAR Case Law Primer” that analyzes court decisions that directly or indirectly touch upon issues involving technology-assisted review (“TAR”).

The primer begins with a brief summary of Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), the first published opinion agreeing that TAR is an “acceptable way to search for relevant ESI in appropriate cases.” Id. at 183. Although this opinion approved the use of TAR in that case under the particular facts and issues before the court, many parties were still unclear regarding the method of implementing TAR, the appropriate level of involvement by opposing parties (if any), and whether an agreement must be reached regarding technical specifics of the TAR process. Continue Reading Sedona Conference Releases “TAR Case Law Primer”