Attempting to Shoot for the Moon and Settle For the Stars During the Meet and Confer Process May Result in Obtaining Neither

A recent decision out of the Northern District of California provides a sobering reminder that a party’s obligation to meet and confer must be undertaken in good faith. If a party is overly aggressive – and therefore perceived not to be acting in good faith – it may wind up with nothing.

Boston Scientific Corporation v. Lee, was a fairly typical case involving a former employee’s alleged theft of trade secrets. Defendant Dongchul Lee (Lee) left Plaintiff Boston Scientific Corp. (Boston) and began working for a competitor, nonparty Nevro Corp. (Nevro). Shortly thereafter, Boston sued Lee, claiming theft of trade secrets and violation of a confidentiality agreement. Boston alleged Lee had downloaded its confidential information onto a USB thumb drive, and used these trade secrets in his subsequent employment with Nevro.

Nevro assigned a laptop to Lee at the start of his employment, which he used to perform his job duties as well as communicating with his attorneys. Several weeks after the lawsuit was filed, Nevro sequestered this laptop with a third party e-discovery vendor, and issued him a second one. Boston sought forensic discovery from both laptops. Nevro objected, claiming both laptops contained highly confidential trade secrets that were completely irrelevant to the case, along with privileged communications between Lee and his counsel. Instead, Nevro produced “forensic information about the contents of the first laptop in the form of file listing reports, which disclose extensive metadata of the files contained on the laptop, USB reports, and web browsing history reports.” When Boston pressed further, Nevro offered to have an independent vendor review a full forensic image of the first laptop to search for pertinent information, including a review of any deleted files. Lee’s counsel suggested having a meet and confer call to discuss why Boston felt this would not be sufficient to see if the concerns could be addressed in some way that could still preserve Nevro’s confidential information.

Boston rejected Nevro’s offer, and shortly thereafter issued a subpoena demanding a complete forensic image of each laptop. Nevro responded with a motion to quash. The Boston court felt that “by demanding nothing less than a complete forensic image of not just one but two laptops belonging to a direct competitor,” Boston demanded entirely too much. In the alternative, Boston urged the court to adopt Nevro’s proposal in the meet and confer. Though “tempted,” the Boston court rejected this, stating: “to allow Boston Scientific now to seek shelter from a fallback position that Nevro previously tendered in good faith would make a mockery of both parties’ obligation to meet and confer in good faith from the start. The time to tap flexibility and creativity is during meet and confer, not after.” Therefore, the Boston court quashed Boston’s subpoena in its entirety.

As a result, instead of receiving a full forensic image of the first laptop available for review by an independent vendor, as Nevro initially offered, Boston ended up with nothing. Clearly, the lesson is that meet and confers are to be taken seriously and not approached in a cavalier or overreaching manner. A party that does not act in good faith at a meet and confer does so at its own peril. Moreover, this decision counsels that, absent special circumstances, a party’s demand for unrestricted review of a full forensic computer image of an adversary’s computer will likely be met with significant opposition and, ultimately, disapproval by the court.

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