Hewlett Packard and Oracle’s increasingly bitter feud took an unexpected turn last week when HP was forced to backtrack from earlier claims that a former senior executive, Adrian Jones, had improperly backed up files before joining Oracle last March.

HP sued Jones in April, asserting that a month before he left HP he copied “hundred of files and thousands of emails” containing HP trade secrets onto an external hard drive (a copy of the complaint is linked below). Like many high profile trade secret cases, the lawsuit against Jones was accompanied by much fanfare as it followed the highly publicized departure of HP’s former CEO Mark Hurd, whom HP also sued for breach of his NDA when he too joined Oracle last September.

HP has now been forced to concede that Jones did not back up his computer with the hard drive in February (Jones’ filings and recent letter to the court detailing these concessions can be found at the link above). Instead, HP admits that hard drive was connected to the computer and the files copied in December by HP, which was investigating Jones for ethics violations at that time. According to the Wall Street Journal, HP has acknowledged that the serial number of that hard drive “matches the hard drive used by HP to create an image of Jones’ HP-issued laptop on or about December, 21, 2010.”  HP’s forensic investigator said in an email turned over in discovery that he was no longer claiming that a backup occurred and that it was “a dead issue.” 

As one would expect, Jones’ attorneys have demanded that the case be dismissed and threatened to seek attorneys fees against HP for filing a bad faith trade secret action. HP has defended its suit by emphasizing Jones kept and ultimately returned other confidential documents after the lawsuit’s filing, contrary to his initial sworn declaration that he did not possess any confidential information. 

The lesson for all of us? Verify your critical evidence before you file for a TRO. We all know how quickly important decisions are made in the TRO context and that they are compounded by the stress and emotion that come with these disputes. Nevertheless, if you are relying on one witness’ recollection of critical events, drill down and double-check that testimony before filing. Likewise, if you are relying on a single piece of forensic evidence (like the USB device that was described in HP’s complaint), take the time to have an outside vendor check and certify what you and your client think you have found. It will reduce, if not eliminate, the risk of finding out later you were wrong and having to explain that to a judge and very unhappy defendant. 

HP v Jones Complaint.pdf (765.79 kb)