Brunswick Rail Wins Emergency Evidence Protection in Trade Secret Case Against Former Employees

by Zapproved LLC

OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017-EJD, 2017 U.S. Dist. LEXIS 2343 (N.D. Cal. Jan. 6, 2017).

The court partially granted the plaintiff, OOO Brunswick Rail Mgmt., a motion for emergency evidence preservation measures, finding “significant concern” that defendants had potentially destroyed relevant evidence.

OOO Brunswick Rail Management and Brunswick Rail Group Limited (collectively, “Brunswick”), sued former employees Richard Sultanov and Paul Ostling for misappropriating trade secrets. Brunswick claimed that Sultanov and Ostling “have already disclosed and plan to continue to disclose [its] trade secrets to creditors.”

Brunswick launched an internal investigation when it noticed “‘unusually secretive’ behavior from Sultanov.” That investigation revealed that Sultanov “sent several confidential documents to his personal email account without authorization [and] then deleted the sent messages and emptied his trash folder.”

Sultanov and Ostling communicated by phone with each other and with a creditor representative whom Sultanov was “prohibited from contacting.” Ostling also “received unauthorized confidential materials at his personal email account” that he “forwarded to the creditor’s representative and to Sultanov.” Additionally, Sultanov “refuse[d] to return a company-issued mobile phone and laptop.”

Therefore, Brunswick filed this motion asking the court to order protective measures, including a seizure and preservation order as well as a temporary restraining order.

The court began by pointing out the parties’ “duty to preserve evidence once a complaint is filed.” Because of this duty, a party must demonstrate “a significant concern that potentially relevant evidence will be destroyed” before the court will order “stricter preservation requirements.” To enter a preservation order, the court must find “(1) threats to preservation of the evidence, (2) irreparable harm likely to result to the party seeking preservation, and (3) the capability of the custodian to maintain the evidence sought to be preserved.”

In this case, the court concluded that “Brunswick has satisfied these three requirements.” Based on their conduct, Sultanov and Ostling might delete information themselves, irreparably harming Brunswick. Further, their personal accounts were hosted by third parties that were under no duty to preserve emails absent a court order. Accordingly, a preservation order, encompassing both defendants and their third-party email hosts, was appropriate.

Brunswick also moved for an order under the Defend Trade Secrets Act “to seize the company-issued laptop and mobile phone” that Sultanov had refused to relinquish. The court rejected that request as “unnecessary because the [c]ourt will order that Sultanov must deliver these devices to the [c]ourt.” Under that order, the “devices may not be accessed or modified” before their surrender.

Brunswick next moved for expedited discovery, which requires a showing of good cause. However, because Brunswick offered inadequate support for this request, the court denied this part of the motion.

Finally, Brunswick requested a temporary restraining order and the “extraordinary remedy” of a preliminary injunction. Such remedies require Brunswick to show four things: “(1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest.”

The court again found that Brunswick had satisfied those elements, given the “significant threat of irreparable injury.” Because the application was made ex parte, Brunswick also had to, and did, satisfy Federal Rule of Civil Procedure 65(b)(1) by certifying that “notice [to Sultanov] would render the requested relief ineffective.”

The court therefore granted the motion in part, ordering four remedies:

  1. Google and Rackspace must preserve the defendants’ email accounts.
  2. Sultanov and Ostling must not destroy any information.
  3. Sultanov must surrender his company laptop and mobile phone to the court.
  4. The parties must appear at a hearing on the motion for the preliminary injunction.

[View source.]

Written by:

Zapproved LLC

Zapproved LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.