Sent to you by pakurilecz via Google Reader: Trade Secret Enforcement
with E-Records via Wright's Legal Beagle by Ben Wright on 9/30/08
Winning E-Discovery with Superior Records

Burst.com's e-mail records bolstered the company in its intellectual
property lawsuit against Microsoft. The background: Burst had signed a
written, mutual non-disclosure agreement with Microsoft, in which
Microsoft agreed not to use secrets revealed by Burst without Burst's
permission. Then Burst confidentially revealed trade secrets about
Burst's streaming media technology in the hopes that Microsoft would
want to license it. Microsoft elected not license it, but it did
develop streaming media technology, claiming its engineers did so
without using any of Burst's secrets. Burst was suspicious. Burst
eventually claimed Microsoft chose to use these trade secrets without
Burst’s consent, and without compensation to Burst.

So Burst sued, claiming misappropriation of trade secrets and breach of
the non-disclosure agreement. During the discovery stage of the
litigation, Microsoft was required to reveal all of its e-mail records
on the topic, and Microsoft did turn over a large number of e-mails
regarding its communications with Burst and its streaming media
technology in general.

But in court Burst argued Microsoft did not dutifully comply with the
discovery requirements. Burst argued that Microsoft had illegally
withheld some e-records or lost them. To support its argument, Burst
brandished numerous of its own e-mail records showing particular
exchanges between Burst and Microsoft, where Microsoft had produced no
matching records on its end.

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