FACTS PRESENTED

The plaintiff filed a complaint in state court against the defendant Greenville Colorants, LLC, his former employer, alleging that his employment was wrongfully terminated in breach of his employment agreement and that he is owed wages that he would have been paid had his employment not been terminated. The case was removed to federal court on September 16, 2010. On September 21, 2010, the defendant filed its answer and counterclaims for misappropriation of trade secrets, conversion, and breach of fiduciary duty.

The defendant is a dye manufacturer and claims:

(Def. counterclaims ¶ 11). The plaintiff worked for the defendant until May 28, 2010. As part of its counterclaims, the defendant alleges the plaintiff sent dye samples to Ed Tessener, a former sales representative for the defendant, when Tessener left the company and began working for a competitor.

On the afternoon of Monday, November 1, 2010, the plaintiff called Bill Coller (“Coller”), Lab Director for Greenville Colorants (Coller aff. ¶¶ 2,4). The plaintiff asked Coller about the company’s email system because the plaintiff no longer had access to the mailboxes but claimed to Coller that he sent himself an email from a company mailbox the prior week (Coller aff. ¶ 4). When the conversation ended, Coller called Joe Lynch (“Lynch”), President of Greenville Colorants, to report the incident (Coller aff. ¶ 6).

On November 2, 2010, Lynch informed Ron Weiss, Chairman of Greenville Colorants, that the plaintiff claimed that he had accessed the company’s email system and sent himself an email (Weiss aff. ¶¶ 2, 5). The defendant’s mailboxes contain proprietary information and trade secrets such as dye formulas (Weiss aff. ¶ 6). Therefore, Weiss searched the company’s back up file of all emails sent for the past six months to find out whether the plaintiff had, in fact, sent himself an email (Weiss aff. ¶7). Weiss searched the back-up file for the term “dyebiz” because he knew that the plaintiff’s personal email address is dyebiz@mac.com (Weiss aff. ¶ 8). Weiss' search showed that there was an email sent on October 26, 2010 to dyebiz@mac.com from the company’s production mailbox (Weiss aff. ¶ 9). Weiss further discovered that the email sent to dyebiz@mac.com on October 26, 2010, had been deleted from the sent folder of the production mailbox (Weiss aff. ¶ 11). Attached to the email was a valuable, proprietary dye formula (“the formula”), which cost the defendant substantial time, manpower, money, and other resources to develop and which is a key to many similar products (Weiss aff. ¶¶ 12-14).

*2 The plaintiff did not submit a counter-affidavit in support of his opposition to the motion to compel. He argues that the motion is wrongly styled as a motion to compel and that the discovery sought by the defendant is not relevant to the claims and counterclaims in the pleadings. The defendant counters that the discovery is directly related to the counterclaims pleaded in its original answer. This court agrees that the discovery is related to the original counterclaims. Furthermore, the defendant filed a motion on November 16, 2010, to amend its counterclaims to include additional counterclaims based upon the alleged unauthorized access by the plaintiff of the defendant’s computer system in October 2010.

APPLICABLE LAW AND ANALYSIS

The defendant asks that it be allowed to depose the plaintiff immediately on the following topics:

(Def. m. to compel at 8). This court agrees that such a deposition is appropriate given the allegations and sworn affidavits presented by the defendant as to the plaintiff’s alleged unauthorized access of the defendant’s computer system. Plaintiff’s counsel and defendant’s counsel are directed to discuss and agree to a mutually convenient time for the deposition. The deposition shall be taken on or before December 2, 2010, and shall be limited to the topics listed above. This deposition shall be in addition to another subsequent deposition to be taken on the merits.

The defendant further requests that the court compel the plaintiff to respond immediately to an interrogatory inquiring to whom he has communicated about, disclosed, disseminated, emailed, or shared any dye formula or other proprietary information belonging to or concerning the defendant after the termination of his employment with the defendant. This court agrees that such an interrogatory is appropriate in this case. On or before November 24, 2010, the plaintiff is directed to respond to such interrogatory, which was served upon him on November 8, 2010.

The defendant also asks that the court enter an order prohibiting further destruction of evidence. A party has a duty to preserve evidence when the party is placed on notice that the evidence is relevant to the litigation or when the party should have known that the evidence may be relevant to future litigation. Silvestri v. GMC, 271 F. 3d 583, 591 (4th Cir. 2001). The duty to preserve encompasses electronic communications and documents, such as emails, or documents created by computer. See, e.g., Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003) (holding in an employment case that defendant company had duty to preserve emails related to the claims asserted by the plaintiff). “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Silvestri, 271 F.3d at 590 (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). The spoliation of evidence may give rise to court-imposed sanctions deriving from the court’s inherent power “to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth.” Id. Here, the plaintiff is clearly under a duty to maintain and preserve evidence related to his employment as well as the defendant’s counterclaims against him. The plaintiff is hereby reminded of this duty and the potential for sanctions if he does not uphold his duty.

*3 Lastly, the defendant seeks production of the plaintiff’s electronic devices for forensic analysis and inspection. While such discovery may be appropriate later in the case, at this time the court finds such an inspection is unnecessary. In lieu of the computer inspection request, on or before November 24, 2010, the plaintiff is directed to provide the defendant a copy of the October 26, 2010, email and any attachments thereto. In addition, the plaintiff is to provide the defendant with copies of any subsequent, nonprivileged emails sent or received by the plaintiff or documents created by the plaintiff that relate in any manner to the email and/or its subject matter. Furthermore, the plaintiff is directed to provide the defendant with a summary of any nonwritten, nonprivileged communications he has had with others related to the email and/or its subject matter.

CONCLUSION

Wherefore, based upon the foregoing, the defendant’s motion (doc. 13) is granted in part and denied in part as set forth above.

IT IS SO ORDERED.