Full opinion text
MEMORANDUM AND OPINION LEE H. ROSENTHAL, District Judge. Spoliation of evidence — particularly of electronically stored information — has assumed a level of importance in litigation that raises grave concerns. Spoliation allegations and sanctions motions distract from the merits of a case, add costs to discovery, and delay resolution. The frequency of spoliation allegations may lead to decisions about preservation based more on fear of potential future sanctions than on reasonable need for information. Much of the recent case law on sanctions for spoliation has focused on failures by litigants and their lawyers to take adequate steps to preserve and collect information in discovery. The spoliation allegations in the present case are different. They are allegations of willful misconduct: the intentional destruction of emails and other electronic information at a time when they were known to be relevant to anticipated or pending litigation. The alleged spoliators are the plaintiffs in an earlier-filed, related case and the defendants in this case. The allegations include that these parties — referred to in this opinion as the defendants — concealed and delayed providing information in discovery that would have revealed their spoliation. The case law recognizes that such conduct is harmful in ways that extend beyond the parties’ interests and can justify severe sanctions. Given the nature of the allegations, it is not surprising that the past year of discovery in this case has focused on spoliation. The extensive record includes evidence that the defendants intentionally deleted some emails and attachments after there was a duty to preserve them. That duty arose because the defendants were about to file the related lawsuit in which they were the plaintiffs. The individuals who deleted the information testified that they did so for reasons unrelated to the litigation. But the individuals gave inconsistent testimony about these reasons and some of the testimony was not supported by other evidence. The record also includes evidence of efforts to conceal or delay revealing that emails and attachments had been deleted. There is sufficient evidence from which a reasonable jury could find that emails and attachments were intentionally deleted to prevent their use in anticipated or pending litigation. The record also shows that much of what was deleted is no longer available. But some of the deleted emails were recovered from other sources. While some of the recovered deleted emails were adverse to the defendants’ positions in this litigation, some were favorable to the defendants. The record also shows that despite the deletions of emails subject to a preservation duty, there is extensive evidence available to the plaintiff to prosecute its claims and respond to the defenses. These and other factors discussed in more detail below lead to the conclusion that the most severe sanctions of entering judgment, striking pleadings, or imposing issue preclusion are not warranted. Instead, the appropriate sanction is to allow the jux-y to hear evidence of the defendants’ conduct-including deleting emails and attachments and providing inaccurate or inconsistent testimony about them-and to give the jury a fox-m of adverse inference instruction. The instruction will inform the jury that if it finds that the defendants intentionally deleted evidence to prevent its use in anticipated or pending litigation, the jury may, but is not required to, infer that the lost evidence would have been unfavorable to the defendants. In addition, the plaintiff will be awarded the fees and costs it reasonably incurred in identifying and revealing the spoliation and in litigating the consequences. The opinion first sets out the pending motions. Before analyzing the spoliation allegations, related sanctions motions, and the summary judgment motions (which are also impacted by the spoliation allegations), the opinion sets out some of the analytical issues that spoliation sanctions raise. The relevant factual and procedural history is then set out and the evidence on breach of the duty to preserve, the degree of culpability, relevance, and prejudice is examined. The opinion then analyzes the evidence to determine the appropriate response. The defendants’ motion for summary judgment based on claim and issue preclusion arising from the related, earlier-filed, state-law case are then analyzed in detail. That motion is denied in part because of the spoliation and withholding of evidence relevant to that case. Finally, the opinion examines the parties’ cross-motions for summary judgment on the defendants’ counterclaims for attorneys’ fees. The opinion results in narrowing and defining the issues to be tried. A pretrial conference is set for February 26, 2010, at 10:00 a.m. to set a schedule for completing any remaining pretrial work and a trial date. I. The Pending Motions In November 2006, Rimkus Consulting Group, Inc. (“Rimkus”) was sued in Louisiana state court by Nickie G. Cammarata and Gary Bell, who had just resigned from the Rimkus office in Louisiana. Cammarata, Bell, and other ex-Rimkus employees had begun a new company, U.S. Forensic, L.L.C., to compete with Rimkus in offering investigative and forensic engineering services primarily for insurance disputes and litigation. In the Louisiana suit, Cammarata and Bell sought a declaratory judgment that the forum-selection, choice-of-law, noncompetition, and nonsolicitation provisions in agreements they had signed with Rimkus were unenforceable. In January and February 2007, Rimkus sued Cammarata and Bell in separate suits in Texas, alleging that they breached the noncompetition and nonsolicitation covenants in their written employment agreements and that they used Rimkus’s trade secrets and proprietary information in setting up and operating U.S. Forensic. U.S. Forensic is a defendant in the Cammarata case. The Texas Cammarata and Bell cases were consolidated in this court. (Docket Entry Nos. 211, 216). Two sets of motions are pending. One set is based on Rimkus’s allegations that the defendants spoliated evidence. Rimkus moves for sanctions against the defendants and their counsel and asks that they be held in contempt. (Docket Entry Nos. 313, 314). Rimkus alleges that the defendants and their counsel “conspiratorially engaged” in “wholesale discovery abuse” by destroying evidence, failing to preserve evidence after a duty to do so had arisen, lying under oath, failing to comply with court orders, and significantly delaying or failing to produce requested discovery. (Docket Entry No. 313 at 1). Rimkus asks this court to strike the defendants’ pleadings and to enter a default judgment against them or give an adverse inference jury instruction. Rimkus also seeks monetary sanctions in the form of the costs and attorneys’ fees it incurred because of the defendants’ discovery abuses. In response, the defendants acknowledge that they did not preserve “some arguably relevant emails” but argue that Rimkus cannot show prejudice because the missing emails “would be merely cumulative of the evidence already produced.” (Docket Entry No. 345 at 6). Rimkus filed supplements to its motions for contempt and sanctions, (Docket Entry Nos. 342, 343, 410, 414, 429, 431, 439, 445), and the defendants responded, (Docket Entry No. 350, 435). The second set of motions is based on the defendants’ assertion that they are entitled to summary judgment on the merits based on the preclusive effects of the judgment and rulings they obtained in the lawsuit they filed in the Louisiana state court before Rimkus sued them in Texas. (Docket Entry No. 309). The defendants argue that the claims in this Texas suit should be dismissed under res judicata, or in the alternative, that they are entitled to judgment as a matter of law on Rimkus’s claims for misappropriation of trade secrets, tortious interference, unfair competition, civil conspiracy, disparagement, and breach of fiduciary duty. (Id.). Cammarata also moved for summary judgment on his counterclaim for attorneys’ fees under Texas Business & Commerce Code § 15.51(c). (Id.). Rimkus responded, (Docket Entry Nos. 321, 324), the defendants replied, (Docket Entry No. 349), Rimkus filed a surreply, (Docket Entry No. 353), and several supplemental responses, (Docket Entry Nos. 362, 374, 394, 410, 429, 439, 445), and the defendants filed supplemental replies, (Docket Entry Nos. 376, 377). Rimkus argues that preclusion does not apply and that the summary judgment evidence reveals multiple disputed fact issues that preclude summary judgment on the merits of its claims. Rimkus moved for partial summary judgment on the defendants’ counterclaims for attorneys’ fees under Texas Business & Commerce Code § 15.51(C). (Docket Entry Nos. 302, 305). The defendants responded, (Docket Entry Nos. 317, 322), and Rimkus replied, (Docket Entry No. 352). Rimkus also moved to extend the pretrial motions deadline, asserting that an extension is warranted because discovery is incomplete. (Docket Entry No. 306). The defendants responded, (Docket Entry No. 323), and Rimkus replied, (Docket Entry No. 351). Both sets of motions are addressed in this memorandum and opinion. Based on a careful review of the pleadings; the motions, responses, and replies; the parties’ submissions; the arguments of counsel; and the applicable law, this court grants in part and denies in part Rimkus’s motions for sanctions. An adverse inference instruction on the deletion of emails and attachments will be given to the jury at trial. The motion for contempt is denied as moot because it seeks relief that would be duplicative of the sanctions. Rimkus is also awarded the reasonable attorneys’ fees and costs it incurred in investigating the spoliation, including fees and costs for obtaining emails through third-party subpoenas, taking additional depositions, and filing and responding to motions on sanctions. As to the summary judgment motions, this court denies Rimkus’s motion to extend the motions-filing deadline, grants in part and denies in part the defendants’ motion for summary judgment based on preclusion (based in part on spoliation that concealed and delayed producing relevant information in the Louisiana case), and grants Rimkus’s motions for partial summary judgment on the defendants’ counterclaims for attorneys’ fees. Summary judgment is granted dismissing Rimkus’s claims for disparagement, tortious interference, and damages for breach of the noncompetition and nonsolicitation provisions. Summary judgment is denied on Rimkus’s claims for misappropriation of trade secrets, breach of fiduciary duty to the extent it is based on misappropriation, unfair competition, and civil conspiracy. With respect to the counterclaim for attorneys’ fees, Cammarata’s motion for summary judgment is denied and Rimkus’s motions for summary judgment are granted. The reasons for these rulings are explained in detail below. II. The Framework for Analyzing Spoliation Allegations In her recent opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, No. 05 Civ. 9016, 685 F.Supp.2d 456, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), Judge Scheindlin has again done the courts a great service by laying out a careful analysis of spoliation and sanctions issues in electronic discovery. The focus of Pension Committee was on when negligent failures to preserve, collect, and produce documents — including electronically stored information — in discovery may justify the severe sanction of a form of adverse inference instruction. Unlike Pension Committee, the present case does not involve allegations of negligence in electronic discovery. Instead, this case involves allegations of intentional destruction of electronically stored evidence. But there are some common analytical issues between this case and Pension Committee that deserve brief discussion. A. The Source of Authority to Impose Sanctions for Loss of Evidence Allegations of spoliation, including the destruction of evidence in pending or reasonably foreseeable litigation, are addressed in federal courts through the inherent power to regulate the litigation process if the conduct occurs before a case is filed or if, for another reason, there is no statute or rule that adequately addresses the conduct. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1408 (5th Cir.1993) (summary calendar). If an applicable statute or rule can adequately sanction the conduct, that statute or rule should ordinarily be applied, with its attendant limits, rather than a more flexible or expansive “inherent power.” Chambers, 501 U.S. at 50, 111 S.Ct. 2123; see Klein v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98, 109 (3d Cir.1999) (“[A] trial court should consider invoking its inherent sanctioning powers only where no sanction established by the Federal Rules or a pertinent statute is ‘up to the task’ of remedying the damage done by a litigant’s malfeasance....”); Natural Gas Pipeline Co. of Am., 2 F.3d at 1410 (“When parties or their attorneys engage in bad faith conduct, a court should ordinarily rely on the Federal Rules as the basis for sanctions.”). When inherent power does apply, it is “interpreted narrowly, and its reach is limited by its ultimate source — the court’s need to orderly and expeditiously perform its duties.” Newby v. Enron Corp., 302 F.3d 295, 302 (5th Cir.2002) (footnote omitted) (citing Chambers, 501 U.S. at 43, 111 S.Ct. 2123). In Chambers, the inherent power was linked to the bad-faith conduct that affected the litigation. See 501 U.S. at 49, 111 S.Ct. 2123. If inherent power, rather than a specific rule or statute, provides the source of the sanctioning authority, under Chambers, it may be limited to a degree of culpability greater than negligence. Rule 37(b)(2)(A) provides; If a party or a party’s officer, director, or managing agent-or a witness designated -under Rule 30(b)(6) or 31(a)(4)-fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated ' matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). In addition, a court has statutory authority to impose costs, expenses, and attorneys’ fees on “any attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927. Rule 37(e) applies to electronically stored information lost through “routine good-faith operation” of an electronic information system rather than through intentional acts intended to make evidence unavailable in litigation. Rule 37(e) states: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e). The alleged spoliation and proposed sanctions in this case implicate the court’s inherent authority, including for spoliation occurring before this case was filed or before discovery orders were entered and Rule 37, for failures to comply with discovery orders. B. When Deletion Can Become Spoliation Spoliation is the destruction or the significant and meaningful alteration of evidence. See generally The Sedona Conference, The Sedona Conference Glossary: E-discovery & Digital Information Management (Second Edition) 48 (2007) (“Spoliation is the destruction of records or properties, such as metadata, that may be relevant to ongoing or anticipated litigation, government investigation or audit.”). Electronically stored information is routinely deleted or altered and affirmative steps are often required to preserve it. Such deletions, alterations, and losses cannot be spoliation unless there is a duty to preserve the information, a culpable breach of that duty, and resulting prejudice. Generally, the duty to preserve arises when a party “ ‘has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.’ ” Generally, the duty to preserve extends to documents or tangible things (defined by Federal Rule of Civil Procedure 34) by or to individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” See, e.g., Zubulake IV, 220 F.R.D. at 217-18 (footnotes omitted). These general rules are not controversial. But applying them to determine when a duty to preserve arises in a particular case and the extent of that duty requires careful analysis of the specific facts and circumstances. It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight. Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done — or not done— was proportional to that case and consistent with clearly established applicable standards. As Judge Scheindlin pointed out in Pension Committee, that analysis depends heavily on the facts and circumstances of each case and cannot be reduced to a generalized checklist of what is acceptable or unacceptable. Applying a categorical approach to sanctions issues is also difficult, for similar reasons. Determining whether sanctions are warranted and, if so, what they should include, requires a court to consider both the spoliating party’s culpability and the level of prejudice to the party seeking discovery. Culpability can range along a continuum from destruction intended to make evidence unavailable in litigation to inadvertent loss of information for reasons unrelated to the litigation. Prejudice can range along a continuum from an inability to prove claims or defenses to little or no impact on the presentation of proof. A court’s response to the loss of evidence depends on both the degree of culpability and the extent of prejudice. Even if there is intentional destruction of potentially relevant evidence, if there is no prejudice to the opposing party, that influences the sanctions consequence. And even if there is an inadvertent loss of evidence but severe prejudice to the opposing party, that too will influence the appropriate response, recognizing that sanctions (as opposed to other remedial steps) require some degree of culpability. C. Culpability As a general rule, in this circuit, the severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of “bad faith.” Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir.2005); King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir.2003); United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000). “ ‘Mere negligence is not enough’ to warrant an instruction on spoliation.” Russell v. Univ. of Tex. of Permian Basin, 234 Fed.Appx. 195, 208 (5th Cir.2007) (unpublished) (quoting Vick v. Tex. Employment Comm’n, 514 F.2d 734, 737 (5th Cir.1975); see also King, 337 F.3d at 556) (“King must show that ICR acted in ‘bad faith’ to establish that it was entitled to an adverse inferertce.”) Vick v. Tex. Employment Comm’n, 514 F.2d at 737 (“The adverse inference to be drawn from destruction of records is predicated on bad conduct of the defendant. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.” (quotation omitted)). Other circuits have also held negligence insufficient for an adverse inference instruction. The Eleventh Circuit has held that bad faith is required for an adverse inference instruction. The Seventh, Eighth, Tenth, and D.C. Circuits also appear to require bad faith. The First, Fourth, and Ninth Circuits hold that bad faith is not essential to imposing severe sanctions if there is severe prejudice, although the cases often emphasize the presence of bad faith. In the Third Circuit, the courts balance the degree of fault and prejudice. The court in Pension Committee imposed a form of adverse inference instruction based on a finding of gross negligence in preserving information and in collecting it in discovery. The court applied case law in the Second Circuit, including the language in Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir.2002), stating that “[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence.” That language has been read to allow severe sanctions for negligent destruction of evidence. See, e.g., Rogers v. T.J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir.2002); Lewis v. Ryan, 261 F.R.D. 513, 521 (S.D.Cal.2009) (noting that California district courts had followed the Second Circuit’s approach in Residential Funding). In the Fifth Circuit and others, negligent as opposed to intentional, “bad faith” destruction of evidence is not sufficient to give an adverse inference instruction and may not relieve the party seeking discovery of the need to show that missing documents are relevant and their loss prejudicial. The circuit differences in the level of culpability necessary for an adverse inference instruction limit the applicability of the Pension Committee approach. And to the extent sanctions are based on inherent power, the Supreme Court’s decision in Chambers may also require a degree of culpability greater than negligence. D. Relevance and Prejudice: The Burden of Proof It is well established that a party seeking the sanction of an adverse inference instruction based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. See Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 220 (S.D.N.Y.2003). The “relevance” and “prejudice” factors of the adverse inference analysis are often broken down into three subparts: “(1) whether the evidence is relevant to the lawsuit; (2) whether the evidence would have supported the inference sought; and (3) whether the nondestroying party has suffered prejudice from the destruction of the evidence.” Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 346 (M.D.La.2006) (citing Concord Boat Corp. v. Brunswick Corp., No. LR-C-95-781, 1997 WL 33352759, at *7 (E.D.Ark. Aug. 29, 1997)). Courts recognize that “[t]he burden placed on the moving party to show that the lost evidence would have been favorable to it ought not be too onerous, lest the spoliator be permitted to profit from its destruction.” Chan v. Triple 8 Palace, Inc., No. 03CIV6048(GEL)(JCF), 2005 WL 1925579, at *7 (S.D.N.Y. Aug. 11, 2005). Pension Committee recognized the difficulty and potential for unfairness in requiring an innocent party seeking discovery to show that information lost through spoliation is relevant and prejudicial. Those concerns are acute when the party seeking discovery cannot replace or obtain extrinsic evidence of the content of deleted information. But in many cases — including the present case — there are sources from which at least some of the allegedly spoliated evidence can be obtained. And in many cases — including the present case — the party seeking discovery can also obtain extrinsic evidence of the content of at least some of the deleted information from other documents, deposition testimony, or circumstantial evidence. Courts recognize that a showing that the lost information is relevant and prejudicial is an important check on spoliation allegations and sanctions motions. Courts have held that speculative or generalized assertions that the missing evidence would have been favorable to the party seeking sanctions are insufficient. By contrast, when the evidence in the case as a whole would allow a reasonable fact finder to conclude that the missing evidence would have helped the requesting party support its claims or defenses, that may be a sufficient showing of both relevance and prejudice to make an adverse inference instruction appropriate. In Pension Committee, the court followed the approach that even for severe sanctions, relevance and prejudice may be presumed when the spoliating party acts in a grossly negligent manner. Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, No. 05 Civ. 9016, 685 F.Supp.2d 456, 467-68, 2010 WL 184312, at *5 (S.D.N.Y. Jan. 15, 2010). The presumption of relevance and prejudice is not mandatory. Id. at 467-68, at *5. The spoliating party may rebut the presumption by showing that the innocent party had access to the evidence allegedly destroyed or that the evidence would not have been helpful to the innocent party. Id. When the level of culpability is “mere” negligence, the presumption of relevance and prejudice is not available; the Pension Committee court imposed a limited burden on the innocent party to present some extrinsic evidence. Id. The Fifth Circuit has not explicitly addressed whether even bad-faith destruction of evidence allows a court to presume that the destroyed evidence was relevant or its loss prejudicial. Case law in the Fifth Circuit indicates that an adverse inference instruction is not proper unless there is a showing that the spoliated evidence would have been relevant. See Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 & n. 8 (5th Cir.2005) (holding that an adverse inference was not appropriate because there was no evidence of bad faith but also noting that even if bad faith had been shown, an adverse inference would have been improper because relevance was not shown); Escobar v. City of Houston, No. 04-1945, 2007 WL 2900581, at *17-18 (S.D.Tex. Sept. 29, 2007) (denying an adverse inference instruction for destruction of emails in a police department following a shooting because the plaintiffs failed to show bad faith and relevance). One opinion states that bad-faith destruction of evidence “alone is sufficient to demonstrate relevance.” See Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 340 n. 6 (M.D.La.2006). But that opinion also went on to state that “before an adverse inference may be drawn, there must be some showing that there is in fact a nexus between the proposed inference and the information contained in the lost evidence” and that “some extrinsic evidence of the content of the emails is necessary for the trier of fact to be able to determine in what respect and to what extent the emails would have been detrimental.” Id. at 346. In the present case, the party seeking sanctions for deleting emails after a duty to preserve had arisen presented evidence of their contents. The evidence included some recovered deleted emails and circumstantial evidence and deposition testimony relating to the unrecovered records. There is neither a factual nor legal basis, nor need, to rely on a presumption of relevance or prejudice. E. Remedies: Adverse Inference Instructions Courts agree that a willful or intentional destruction of evidence to prevent its use in litigation can justify severe sanctions. Courts also agree that the severity of a sanction for failing to preserve when a duty to do so has arisen must be proportionate to the culpability involved and the prejudice that results. Such a sanction should be no harsher than necessary to respond to the need to punish or deter and to address the impact on discovery. “[T]he judge [imposing sanctions] should take pains neither to use an elephant gun to slay a mouse nor to wield a cardboard sword if a dragon looms. Whether deterrence or compensation is the goal, the punishment should be reasonably suited to the crime.” Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir.1990). A measure of the appropriateness of a sanction is whether it “restore[s] the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999) (quotation omitted); see also Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001) (“[T]he applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” (quoting West, 167 F.3d at 779)). Extreme sanctions — dismissal or default — have been upheld when “the spoliator’s conduct was so egregious as to amount to a forfeiture of his claim” and “the effect of the spoliator’s conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim.” Sampson v. City of Cambridge, Maryland, 251 F.R.D. 172, 180 (D.Md.2008) (quoting Silvestri, 271 F.3d at 593); see Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir.2006) (“The prejudice inquiry ‘looks to whether the [spoiling party’s] actions impaired [the non-spoiling party’s] ability to go to trial or threatened to interfere with the rightful decision of the case.’ ” (alteration in original) (quoting United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir.1988))). When a party is prejudiced, but not irreparably, from the loss of evidence that was destroyed with a high degree of culpability, a harsh but less extreme sanction than dismissal or default is to permit the fact finder to presume that the destroyed evidence was prejudicial. Such a sanction has been imposed for the intentional destruction of electronic evidence. Although adverse inference instructions can take varying forms that range in harshness, and although all such instructions are less harsh than so-called terminating sanctions, they are properly viewed as among the most severe sanctions a court can administer. In Pension Committee, the court stated that it would give a jury charge for the grossly negligent plaintiffs that: (1) laid out the elements of spoliation; (2) instructed the jury that these plaintiffs were grossly negligent in performing discovery obligations and failed to preserve evidence after a preservation duty arose; (3) told the jury that it could presume that the lost evidence was relevant and would have been favorable to the defendant; (4) told the jury that if they declined to presume that the lost evidence was relevant or favorable, the jury’s inquiry into spoliation was over; (5) explained that if the jury did presume relevance or prejudice, it then had to decide if any of the six plaintiffs had rebutted the presumption; and (6) explained the consequences of a rebutted and an unrebutted presumption. The court noted that it was “important to explain that the jury is bound by the Court’s determination that certain plaintiffs destroyed documents after the duty to preserve arose” but that “the jury is not instructed that the Court has made any finding as to whether that evidence is relevant or whether its loss caused any prejudice to the [ ] Defendants.” Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, No. 05 Civ. 9016, 685 F.Supp.2d 456, 496 n. 251, 2010 WL 184312, at *23 n. 251. The “jury must make these determinations because, if the jury finds both relevance and prejudice, it then may decide to draw an adverse inference in favor of the [] Defendants which could have an impact on the verdict,” and “[s]uch a finding is within the province of the jury not the court.” Id. As explained in more detail below, based on the record in this case, this court makes the preliminary findings necessary to submit the spoliation evidence and an adverse inference instruction to the jury. But the record also presents conflicting evidence about the reasons the defendants deleted the emails and attachments; evidence that some of the deleted emails and attachments were favorable to the defendants; and an extensive amount of other evidence for the plaintiff to use. As a result, the jury will not be instructed that the defendants engaged in intentional misconduct. Instead, the instruction will ask the jury to decide whether the defendants intentionally deleted emails and attachments to prevent their use in litigation. If the jury finds such misconduct, the jury must then decide, considering all the evidence, whether to infer that the lost information would have been unfavorable to the defendants. Rather than instruct the jury on the rebut-table presumption steps, it is sufficient to present the ultimate issue: whether, if the jury has found bad-faith destruction, the jury will then decide to draw the inference that the lost information would have been unfavorable to the defendants. III. Background A. Factual and Procedural History Rimkus is a forensic engineering contractor with its principal place of business in Houston, Texas. Founded in 1983, Rimkus has thirty offices in eighteen states and works across the country. Rimkus analyzes unexpected accidents and occurrences that cause damage to people or property, primarily in connection with insurance disputes or litigation, and provides reports and testimony. In 1995, Rimkus hired Bell, a Louisiana resident, as a marketing representative. In October 1996, Rimkus hired Cammarata, also a Louisiana resident, as a full-time salaried employee, to provide forensic engineering services. Both Bell and Cammarata were hired at Rimkus’s office in Houston, Texas, where they signed an Employment Agreement. The Employment Agreement was between the “Company,” defined as Rimkus Consulting Group, Inc., and the “Employee,” defined as Bell or Cammarata. The Agreement’s noncom-petition provision stated as follows: a. Employee will not, directly or indirectly, own, manage, finance, control or participate in the ownership, financing or control of, or be connected as a partner, principal, agent, employee, independent contractor, management advisor and/or management consultant with, or use or permit his name or resume to be used in connection with any business or enterprise performing consulting services similar to those which are carried on by the Company in the “Designated Geographic Area”. For the purposes of this Agreement “Designated Geographic Area” shall mean any standard metropolitan statistical area (or if a client is not located in a standard metropolitan statistical area, then the city, town or township in which such client is located and the counties or parishes contiguous thereto) in which a client or clients of the Company are located and from which such client or clients have engaged Company on not less than five (5) separate files or engagements during the five (5) calendar years proceeding termination of Employee’s employment with Company. If Company has received less than five (5) such assignments or engagements from a client in any Designated Geographic Area, then Employee shall be free to compete in such Designated Geographic Area.... This covenant against competition shall be construed as a separate covenant covering competition within the State of Texas, or in any other State where the Company, directly or indirectly, whether through itself or its representative or agents, conducts business; ... [.] (Docket Entry No. 1, Ex. A at 4-5). The Agreement also contained a clause prohibiting posttermination solicitation of Rimkus’s employees and of Rimkus’s customers: b. Employee agrees that after termination of employment with the Company, he will not, directly or indirectly, solicit, employ or in any other fashion, hire persons who are, or were, employees, officers or agents of the Company, until such person has terminated his employment with the Company for a period of eighteen (18) months; c. Employee agrees, that for a period lasting until eighteen (18) months after termination of his employment, he will not at any time, directly or indirectly, solicit the Company’s eustomers[.] (Id. at 5). The Agreement stated that “any dispute or other proceeding to enforce the terms of this Agreement shall be adjudicated by a court of competent jurisdiction in Harris County, Texas” and that the “Agreement and all rights, obligations and liabilities arising hereunder shall be governed by, and construed and enforced in accordance with the laws of the State of Texas (excluding its conflicts of law provisions) applicable to contracts made and to be performed therein.” (Id. at 11). Bell and Cammarata worked for Rimkus Consulting Group of Louisiana (“RCGL”), a wholly owned subsidiary of Rimkus. Both men worked in RCGL’s Metairie, Louisiana office. They received their paychecks and W-2 forms from RCGL but were provided access to Rimkus customer information, Rimkus business plans, Rimkus operations information, and Rimkus work for their clients. In 2004, Bell became central region property manager and a vice-president of Rimkus. He was responsible for the area from Louisiana to the Canadian border. On July 14, 2005, Rimkus and Bell entered into a “Common Stock Purchase Agreement.” Under the Common Stock Purchase Agreement, Bell purchased 2,000 shares of Rimkus stock. The Agreement was between the “Corporation,” defined as Rimkus Consulting Group, Inc., and the “Shareholder,” defined as Bell. The Common Stock Purchase Agreement contained a noncompetition clause, which provided as follows: Each Shareholder, recognizing that a covenant not to compete is required to protect the business interests of the Corporation, agrees that unless the Corporation consents in writing to the contrary, such Shareholder shall not engage directly or indirectly as an employee, agent, shareholder, officer, director, partner, sole proprietor or in any other fashion in a competing business in any of the geographic areas in which the Corporation is then conducting business, during his period of employment by the Corporation and for five (5) years after the Closing of the purchase transaction .... The covenant is in addition to any non-competition agreement contained in any employment agreement between each Shareholder and the Corporation. Each Shareholder has entered into an Employment Agreement with the Corporation which contains such a non-competition agreement. Shareholders and the Corporation agree that, for purposes of this Agreement, the non-competition provisions extending the period to a five-year period commencing with the date of any Terminating event will prevail over the period as specified in the Employment Agreement between each Shareholder and the Corporation. (Docket Entry No. 321, Ex. C at 10-11). The Common Stock Purchase Agreement also addressed confidential information: [Cjonfidential information pertaining to the Corporation’s customers and business and marketing methods, including, but not limited to, customer or client lists and trade secrets which may be available to them is valuable, special and unique except as such may be in the public domain. Accordingly, each Shareholder hereby agrees that he will not at any time disclose any of such information to any person, firm, corporation, association or other entity for any reason or purpose whatsoever or make use in any other way to his advantage of such information. (Id. at 11). The Agreement also stated that Rimkus and Bell “each agree[d] to refrain from any conduct, by word or act, that will reflect negatively on the character or conduct of the other.” (Id. at 10). On September 27, 2006, Bell resigned from Rimkus effective October 31. Cammarata resigned on November 15, 2006. On that date, Bell, Cammarata, and Mike DeHarde, another employee who had also worked at RCGL in Louisiana, formed and immediately began to work for U.S. Forensic. Like Rimkus, U.S. Forensic provides investigative and forensic engineering services, primarily to determine the cause, origin, and extent of losses from failures and accidents. The parties do not dispute that U.S. Forensic competes with Rimkus in providing investigative and forensic engineering services, although U.S. Forensic does not offer as broad a range of services as Rimkus. U.S. Forensic currently has offices in Louisiana, Mississippi, Florida, and Tennessee and employs engineers registered in twenty states. In this litigation, Rimkus alleges that Bell breached his fiduciary duty as an officer of Rimkus by preparing to form U.S. Forensic before he left Rimkus in October 2006. Rimkus alleges that Bell, Cammarata, and DeHarde planned and made preparations to set up U.S. Forensic and compete against Rimkus long before they resigned. The record shows that Bell registered the domain name “www. usforensic.com” on February 28, 2006. (Docket Entry No. 321, Ex. F). During the summer of 2006, Bell met with a lawyer, contracted with a company to host a web site, filed a trademark application, and prepared a corporate logo for U.S. Forensic. (Id., Exs. G, H, R, S). On October 1, 2006, Bell created U.S. Forensic résumés for himself, Cammarata, and DeHarde. (Id., Ex. I). Corporate formation documents for U.S. Forensic were filed with the Louisiana Secretary of State on October 5, 2006. (Id., Ex. J). On October 13, 2006, Bell’s wife filed an application for U.S. Forensic to practice engineering in the State of Louisiana. (Id., Ex. T). Bell testified in his deposition that he did not agree to form a new company until after he had resigned from Rimkus. (Id., Ex. D, Deposition of Gary Bell, at 423:13-:18). Bell testified that he told De-Harde and Cammarata he was leaving and “they said they were leaving, and — and so we talked about maybe we should do something together. And, I — I think, it was that vague, you know, maybe we should do something together, maybe we talked a little bit about it, you know, after hours or something here, might have a phone call about it, and — but no real — once—once I left, that’s when we kind of really kicked it into high gear.” (Id. at 424:13-:22). On September 30, 2006, Bell emailed Cammarata, DeHarde, and Bill Janowsky, an engineer at another Louisiana firm, to inform them that Rimkus had made him some lucrative offers to entice him to retract his resignation but that he would go forward with the plan to form U.S. Forensic if they were still committed to doing so. (Docket Entry No. 324, Ex. KK). Bell stated, “Without each of you, it will not be worth leaving. If one guy falls [sic] to come along, the whole thing will be completely different.” (Id.). He continued: We have a dream team. I really believe that Rimkus is making these ridiculous offers more because of who I could possibly recruit than anything I can actually do myself. But fear not. I have committed to each of you and for that reason alone I would not abandon you in our dream. I just wanted to give each of you one last chance to bail with no hard feelings. Tell me now or meet me on Ridgelake on November 15 with your sleeves rolled up. (Id.). The record does not include emails responding to this message. Rimkus alleges that this email and any responses were not produced in discovery because the defendants intentionally deleted them. On November 11, 2006, Bell emailed Cammarata, DeHarde, and Janowsky asking for their names, addresses, and social security numbers to set up a payroll tax account for U.S. Forensic. (Id., Ex. B). Bell stated in the email that he had received his COBRA package from Rimkus along with a form letter stating that Rimkus expected him to honor his agreements, including his noncompetition covenant. (Id.). Bell continued: “However, the designated geographic area is the MSA of any city in which Rimkus has received assignments from in the five years prior. We are in good shape and I’ll bet they know it. We need to serve them on Monday to prevent them from filing in Texas. Larry [Demmons] will correct the pleading and get it in — then I call Markham. Damn the torpedoes — full speed ahead!” (IcL). Rimkus argues that the defendants’ plan to file a preemptive lawsuit is evidence of a bad-faith attempt to prevent Rimkus from obtaining relief in Texas under Texas law. The presence of the plan is important to the duty to preserve relevant records. Bell responds that none of these actions breached his fiduciary duty to Rimkus. Bell contends that even a fiduciary relationship between an officer and the corporation he serves does not preclude the officer from preparing for a future competing business venture. Rimkus acknowledges that general preparations for future competition do not breach fiduciary duty but argues that Bell’s preparatory actions, combined with his misappropriation of trade secrets, solicitation of Rimkus’s customers, and luring away Rimkus’s employees — all while still employed by Rimkus— breached the fiduciary duty he owed as a Rimkus corporate officer. Rimkus alleges that both Bell and Cammarata misappropriated client lists, pricing information, and other confidential Rimkus business information to which they had access while working at Rimkus and that they used this information to solicit Rimkus clients for U.S. Forensic. The record shows that Bell and Cammarata emailed some Rimkus clients in November and December 2006. Some of these emails refer to prior work done for the clients while Bell and Cammarata worked for Rimkus. All these emails offer U.S. Forensic as an alternative to Rimkus. It appears that the emails sent to Rimkus clients soliciting business for U.S. Forensic were first produced by an internet service provider pursuant to a third-party subpoena. The defendants either did not produce such emails or delayed doing so until late in the discovery. The parties vigorously dispute how Bell and Cammarata obtained the contact information necessary to send these solicitation emails to Rimkus clients. Bell and Cammarata assert that they did not misappropriate confidential client or other information from Rimkus. Cammarata testified at a hearing that he did not download or print any Rimkus client list and did not take any written client list with him when he left. Cammarata submitted an affidavit stating that when he resigned from Rimkus, he did not take any electronic or paper copies of Rimkus client lists or client-contact information and that he has “never used any Rimkus client lists or client contact information in [his] work for U.S. Forensic.” (Docket Entry No. 309, Ex. Y, Affidavit of Nick Cammarata ¶¶ 11-12). Bell also submitted an affidavit stating that when he resigned from Rimkus, he did not take any electronic or paper copies of Rimkus pricing information, investigative methods, report formats, operations manual, business plan, client lists, or client-contact information. (Id., Ex. V, Affidavit of Gary Bell ¶¶ 39-49). Bell stated that he has “never used any Rimkus client lists or client contact information in [his] work for U.S. Forensic.” (Id. ¶ 40). Bell also stated that he did not use his memory of Rimkus client-contact information to solicit business for U.S. Forensic. (Id. ¶ 41). Bell stated in his affidavit that he has used only publicly available information, primarily from the Casualty Adjuster’s Guides and the internet, to identify people to contact to solicit potential clients for U.S. Forensic. (Id.). The Casualty Adjuster’s Guide is a compilation of the names, addresses, phone numbers, and email addresses of insurance and adjusting companies and certain employees. A separate guide is published for different geographical regions in the United States. Each guide is updated annually. Other publicly available guides, including “The Claims Pages,” the “Texas Legal Directory,” and the “Louisiana Blue Book,” contain similar information. Bell stated in his affidavit that when he formed U.S. Forensic, he “used the Casualty Adjusters Guide, the Louisiana Blue Book and other publicly available publications to find the names, addresses, phone numbers and email addresses of potential clients for U.S. Forensic.” (Id. ¶ 13). Bell also stated in his affidavit that he obtained contact information of potential clients for U.S. Forensic when he attended industry conventions and seminars. (Id. ¶ 15). Bell testified in his deposition about his primary sources for new client-contact information: “I would say, primarily, the internet was my — the—the main thing that I used right off the bat. As I got names, or as I called people and got other information, it would grow from there. But you can find all the adjusters available online, you can find them in the Casualty Adjusters book, you can find them wherever. It depends on where I’m trying to get business, maybe. But the internet is the best source, it’s the most complete source. You can specify your search to — you know, to insurance adjusters that are working for the company, who are not working for the company, you can get insurance claims office by state, you can adjusters’ license by state.” (Docket Entry No. 314, Ex. 6, Deposition of Gary Bell, Vol. 1 at 59:5 — :21). Bell submitted an example of the sources of client-contact information available on the internet. (Docket Entry No. 309, Ex. V-8 pts. 1, 2). Rimkus asserts that the testimony by Bell and Cammarata describing how they obtained client-contact information and denying that they took Rimkus confidential information when they resigned is false. Rimkus contends that Bell and Cammarata could not have obtained contact information for the individuals they emailed to solicit business unless they took the information with them when they left Rimkus. Rimkus points to an email Bell sent on December 10, 2006, in which he asked for a copy of the 2006 Louisiana Casualty Adjuster’s Guide because he did not yet have one. (Docket Entry No. 324, Ex. E). Rimkus also points to an October 1, 2006 email forwarded to Bell from an employee at Rimkus. This email contained contact information for insurance adjusters at Lexington Insurance, a Rimkus client. (Docket Entry No. 321, Ex. Q). And, according to Rimkus, many of the insurance adjusters Bell and Cammarata contacted in November and December 2006 are not listed in the Louisiana Casualty Adjuster’s Guide. In late August 2009, Rimkus submitted information showing that Gary Bell maintained a previously undisclosed personal email address to which he forwarded information from Rimkus. In his March 8, 2009 deposition, Bell testified that the only email addresses he used during 2006 were glb@rimkus.com and garylbell@bellsouth. net. (Docket Entry No. 314, Deposition of Gary Bell, Vol. 2 at 247:10-:19). The deposition continued: Q: Are there any others? A: I don’t believe so. Q: You don’t have like a Hotmail address? A: (Shakes head) Q: A Gmail address? A: No. I don’t believe so. (Id. at 247:20-248:1). In August 2009, Rimkus completed a forensic analysis of its own computer system and discovered a “cookie” showing that on September 30, 2006-three days after Bell officially resigned from Rimkus but before his last day of work-Bell accessed his BellSouth email address from his Rimkus work computer to forward documents to the email address garylbell@ gmail.com. Rimkus filed the forwarded documents under seal. These documents are income statements for Rimkus’s Pensacola, New Orleans, Lafayette, and Indianapolis offices, as well as an employee break-even analysis. The income statements contain the August 2006 budget for each of those offices, including revenues, administrative costs, sales and marketing costs, and the total net income or loss. Rimkus asserts that these documents are confidential and accessible only by certain executive employees. Rimkus argues that the September 30, 2006 email Bell forwarded to himself is evidence of trade secret misappropriation. At a discovery hearing held on September 2, 2009, this court allowed Rimkus to subpoena Google, an email provider, to obtain emails Bell sent and received using the email address “garylbell@gmail.com.” On November 15, 2006 — the date Cammarata resigned from Rimkus and U.S. Forensic began operating — Bell and Cammarata sued Rimkus in Louisiana state court, seeking a declaratory judgment that the forum-selection, choice-of-law, noncom-petition, and nonsolicitation provisions in the Employment Agreement and the non-competition provision in the Common Stock Purchase Agreement were unenforceable. In January 2007, Rimkus sued Cammarata in this court, seeking to enjoin Cammarata from competing with Rimkus during the period set out in the Employment Agreement’s noncompetition provision, from soliciting Rimkus employees and customers, and from using Rimkus trade secrets. Rimkus also sought damages for Cammarata’s alleged breach of the Employment Agreement and misappropriation of trade secrets. (Docket Entry No. 1). Rimkus sued Bell in Texas state court in February 2007, alleging breach of the covenants in the Common Stock Purchase Agreement. Bell removed to this court in March 2007. The suit against Bell, Rimkus Consulting Group, Inc. v. Gary Bell, Civ. A. No. H-07-910, was consolidated with the suit against Cammarata. (Docket Entry No. 211). In the Louisiana state court suit Bell and Cammarata filed, the judge issued an order on March 26, 2007, stating that Louisiana law applied to their claims. (Docket Entry No. 19, Ex. D). On July 26, 2007, the judge issued a final judgment stating that “pursuant to Louisiana law, the covenant not to compete clauses contained in Paragraphs 8(a) and the non-solicitation of customer(s) clauses contained in Paragraphs 8(c) of the respective contracts are invalid and unenforceable.” (Docket Entry No. 71, Ex. H). The noncompetition clause in Bell’s Common Stock Purchase Agreement was, however, held to be enforceable. Both sides appealed. On January 4, 2008, the Louisiana Fifth Circuit Court of Appeal reversed the trial court’s ruling on Bell’s Common Stock Purchase Agreement and held that the noncompetition clause in that Agreement was invalid and unenforceable. On March 25, 2008, the Louisiana Fifth Circuit Court of Appeal affirmed the trial court’s decision that Louisiana law applied to the parties’ agreements and that the Texas forum-selection and choice-of-law clauses and the noncompetition and nonsolicitation covenants in the Employment Agreement were unenforceable. Bell v. Rimkus Consulting Group, Inc. of La., 07-996 (La.App. 5 Cir. 3/25/08); 983 So.2d 927. In holding that Louisiana law applied to the 1996 Employment Agreement despite the Texas choice-of-law clause, the Louisiana Court of Appeal stated: Forum selection clauses will be upheld unless they contravene strong public policy of the forum in which the suit is brought. LA. C.C. art. 3450. LA. R.S. 23:921 A(2), a provision which was added by the legislature in 1999, is an expression of strong Louisiana public policy concerning forum selection clauses.... ... Louisiana law expressly provides that conventional obligations are governed by the law of the state whose policies would be most seriously impaired if its law were not applied to the issue. Further, issues of conventional obligations may be governed by law chosen by the parties, except to the extent that law contravenes the public policy of the state whose law would be applicable under La. C.C. art 3537. As previously stated herein, Louisiana has a longstanding public policy to prohibit or severely restrict non-competition provisions in employment agreements which curtail an employee’s right to [ ] earn his livelihood. These agreements are in derogation of the common right, and they must be strictly construed against the party seeking their enforcement. Application of Texas law to this dispute would thwart Louisiana’s longstanding public policy and interest in this type of matter. According to well established Louisiana law and jurisprudence, the forum selection and choice of law provisions contained in the 1995 and 1996 employment contracts are null and void. Thus, the agreements in this case are governed by Louisiana law. Id. at pp. 9-10; 983 So.2d at 932-33 (citations omitted). On March 17, 2008, the Louisiana state trial court declared that the nonsolicitation-of-employees clause in the defendants’ Employment Agreements was “ambiguous and unenforceable.” (Docket Entry No. 105, Ex. D). In this federal suit, Cammarata filed two motions to dismiss Rimkus’s claims for breach of the noncompetition and nonsolicitation provisions in the Employment Agreement. Cammarata based his motions to dismiss on the preclusive effect of the Louisiana state court ruling invalidating the noncompetition, nonsolicitation, forum-selection, and choice-of-law provisions in the Employment Agreement. (Docket Entry Nos. 71, 105). In ruling on Rimkus’s application for a preliminary injunction, this court concluded that the Louisiana court’s judgment “clearly precludes relitigation of the issue of whether the forum-selection and choice-of-law provision, as well as the noncompetition and nonsolicitation covenants, are unenforceable in Louisiana, under Louisiana law.” (Docket Entry No. 159, August 13, 2008 Memorandum and Opinion, 255 F.R.D. 417, 431 (S.D.Tex.2008)). This court decided that, even if Texas law applied and the noncompetition and nonsolicitation provisions were enforceable outside Louisiana, Rimkus was not entitled to the preliminary injunctive relief it sought. Under Texas law, the noncompetition covenant was broader in geographical scope than necessary to protect Rimkus’s legitimate business interests and the nonsolicitation covenant was broader than necessary because it applied to all Rimkus customers, not merely those Cammarata had worked with or solicited business from while working for Rimkus. Cammarata again moved to dismiss based on res judicata, asking this court to determine the preclusive effect of the Louisiana court’s ruling outside Louisiana. (Docket Entry No. 169). Cammarata’s motions to dismiss were granted “insofar as Rimkus seeks damages for Cammarata’s postemployment competitive activities inside Louisiana on the basis that those activities breached his Employment Agreement.” (Docket Entry No. 260, March 24, 2009 Memorandum and Opinion, 257 F.R.D. 127, 141 (S.D.Tex.2009)). The motions to dismiss were denied with respect to Cammarata’s activities outside Louisiana. (Id.). This court held that the Louisiana state court’s rulings that the forum-selection, choice-of-law, noncompetition, and nonsolicitation contract provisions were unenforceable in Louisiana under Louisiana law did not make those provisions invalid in all states. (Id. at 140). In response to the declaratory judgment complaint Bell and Cammarata filed in Louisiana state court on November 15, 2006, Rimkus filed an answer and a “Re-conventional Demand.” Rimkus asserted that “the entirety of this Reconventional Demand should be governed according to the laws of the State of Texas.” (Docket Entry No. 309, Ex. B at 6). Rimkus’s reconventional demand asserted causes of action for breach of the Employment Agreement’s noncompetition, nonsolicitation, and confidentiality prov