In a case involving allegations of misappropriation of proprietary and confidential information from a former employer, the Court of Chancery in Gore v. Long. et al. , C.A. No. 4387-VCP (Dec. 28, 2012), addressed a unique issue regarding a motion to strike certain testimony of one of the defendants. In Count VI of the Amended Complaint, Gore asserted a civil cause of action for unauthorized access to and misuse of computer system information under 11 Del. C. §§ 932 and 935 which is also punishable as a criminal matter. As a result, testimony concerning unauthorized access to or misuse of computer system information reasonably could be used to incriminate the witness. Gore called defendant Darrell Long to testify in Gore’s case-in-chief and Long invoked his constitutional rights against self-incrimination and refused to answer certain questions regarding the issue of downloading data to a USB drive before he left employment at Gore. On friendly cross-examination, however, he testified as to why he had legitimate reasons to access that information and denied disclosing or using any such confidential information after he left Gore and went to work for defendant BHA Group, Inc. (d/b/a “GE Energy”).
Gore argued that Long waived the privilege for three reasons: (i) Long’s testimony regarding access to Gore documents for legitimate business reasons overlaps with its questions regarding whether and why he downloaded “a massive amount of data” to his personal USB and other data storage devices; (ii) to the extent that Long testified that he did not use or communicate any Gore confidential information while employed by GE Energy, Gore claimed that it should have been permitted to inquire into the related issue of what happened to his personal USB and other storage devices containing Gore documents after he left Gore; and (iii) Long’s testimony regarding retention of storage devices containing Gore information to the extent that: (a) returning his company Blackberry supports an inference that Long did not retain any of the data that previously had been stored on that device once he returned it; or (b) retaining his cell phone, including the business contacts stored on it, supports a finding that Long retained Gore customer and supplier information. The defendants countered that there was no waiver and even if there was, the correct steps would be for Gore to have sought to reexamine Long within the scope of the purported waiver, which it failed to do.
In analyzing the law regarding the waiver of constitutional privileges, the Court explained that “to the extent a witness testifies to a matter by choice, the witness invites his or her adversary to attempt through an adverse examination to undermine the inferences to be drawn from that testimony.” Thus, the Court focused on whether the questions Long refused to answer were both “reasonably related” to and among the “details and particulars” of the testimony he gave in response to Defendants’ counsel’s friendly cross-examination.
After a detailed factual analysis, the Court found that as to questions about whether and why Long downloaded documents from his personal drive onto a USB device are “reasonably related‟ to his testimony that he saved these documents for . . . legitimate business reasons,” the Court concluded that no waiver had occurred. The Court found that because Long did not testify that he downloaded Gore documents for legitimate reasons, questions about why he downloaded documents to a USB device are neither “reasonably related” to nor among “the details and particulars” of the testimony he voluntarily gave regarding that subject.
With respect to the issue of “what Mr. Long actually did with the thousands of Gore documents he downloaded to his USB devices in his final days at Gore is “reasonably related” to his testimony that he did not communicate or use that same information at GE,” the Court found that because Long testified that he never communicated or disclosed Gore documents to anyone at GE Energy, “Long necessarily testified that he never physically delivered a USB device containing such documents to anyone at GE Energy. Having himself opened the door to questions concerning any possible way in which he might have communicated or disclosed Gore documents, Long then could not deny Gore, or the trier of fact, the benefit of subjecting his testimony to the truth-testing process of adverse examination.” As a result, the Court found that “once Long testified that he did not disclose or use Gore information in any way, Gore should have been permitted to inquire into what documents, if any, Long possessed after leaving Gore and the relative ease with which he would have been able to disclose or use them while employed at GE Energy. Such questions are “reasonably related” to and among the “details and particulars” of Long’s blanket denials that he disclosed or used Gore documents.”
With respect to the final issue of whether Long’s testimony that he returned his company Blackberry and retained his personal cell phone waived a privilege regarding whether he retained any external data storage devices containing confidential information after he left Gore, the Court found that no waiver had occurred. Long’s testimony concerning the Blackberry is limited to the return of a physical device belonging to Gore and does not preclude an inference based on other evidence that Long retained the electronic data that may have been stored on the Blackberry. As to Long’s cell phone, Plaintiff’s questions on this subject were limited to whether Long printed out any customer or supplier information from the Lotus Notes program on his Gore computer. The fact that Long retained his personal cell phone, including the business contacts stored in it, simply does not overlap with Plaintiff’s narrow questions.
While Gore argued that Long’s testimony should be stricken, the defendants argue that, “[i]f there was any waiver of Mr. Long’s rights against self-incrimination based on the scope of his testimony, it was during his friendly cross” and, therefore, “Gore could have sought to examine Mr. Long within the scope of the purported waiver.” In addition, because “Gore chose not to conduct any significant hostile redirect,” Gore is not entitled to strike any portion of Long’s testimony. In rejecting the defendants’ argument, the Court found that certain portions of Long’s testimony evaded “a searching, adverse examination.” The Court went on to note that “an equitable balancing of the prejudice suffered by Gore against the detriment to Long does not require an express finding of waiver.” Instead the Court chose to strike Long’s testimony “denying that he communicated, disclosed, or used any Gore confidential information after leaving Gore … except to the extent such testimony is limited to communications or disclosures orally, verbally, or in paper format.” By way of footnote, the Court explained that it chose to disregard the testimony instead of finding a waiver because the defendants stipulated that they would consent to such a remedy if necessary “to preserve Long’s constitutional rights” and Gore did not object to that approach.