Trade Secret Enforcement with E-Records

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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