Computer forensic information often becomes an issue in trade secret cases, as computer artifacts or other electronic information (such as on external hard drives, cell phones, etc.) can sometimes prove or disprove whether a person accessed, used, transferred, or destroyed trade secret material. If the parties or the judge determines that the computer forensic information is relevant, the next key question is how much needs to be exchanged and what limitations will be in place. The producing party often will argue that computers include numerous irrelevant files and artifacts, privileged communications, and private information that should not be subject to discovery. One middle ground is to use a neutral examiner, in which the electronic data is never handed directly to the opposing party. Instead, a neutral computer expert will field requests and/or create reports of the pertinent data.

An example of this latter approach occurred recently in a dispute between Tesla and a former employee. After one of its key employees left for a competitor, Tesla subpoenaed the competitor, XMotors.ai Inc., seeking to obtain access to computers, documents, and proprietary information to use in the lawsuit against the former employee. Tesla argued that the computer forensic information was relevant to Tesla’s claim that the employee disclosed Tesla’s trade secrets to XMotors. The court required the production but directed the parties to use a neutral third-party examiner in order to prevent Tesla from obtaining direct access to the XMotors materials and information.

The case is Tesla Inc. v. Cao, Case No. 19-cv-01463 (N.D. Cal.)