In Boston Scientific v. Lee, No. 1:13-cv-13156-DJC (N.D. Cal. August 4, 2014), the court addressed two areas of e-discovery of particular interest: the need for cooperation in conducting e-discovery successfully, and the digital forensic investigative steps frequently taken when a high-level employee leaves a company to start or join a rival and is suspected of taking with him or her important intellectual property—what I refer to as “departing employee triage,” or DET. I have written about both topics at length in this column.
In Boston Scientific, or BSC, the court approved of the protocol best used in such matters when the old company wants to examine the new company’s digital media, but refused to impose it upon the new company because the old one had played games with discovery rather than working sincerely to cooperate. A review of the opinion sheds light on both important topics.
