YN TI-IE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OP DELAWARE
PIKE ELECTRIC CORPORATION &
PIKE ELECTRIC, INC,
lâ€l¤i¤liiiS» can Action No, assis (sta)
vs.
l\/1lCK DUBEA,
Defendant.
PLAINTIFFS' MOTION FOR ORDER REJECTING
DEFENDANTS CLAIMS OF PRIVILEGE AND FOR
DISCOVERY SANCTIONS DUE TO SPOLIATION OF EVIDENCE
Plaintiffs Pike Electric Corporation and Pike Electric, Inc. (collectively, "Pike"),
through counsel, respectfully tile this motion tor an order rejecting defendant Mick Dubea's
("Dubea") claims of privilege and for discovery sanctions due to Dubc-:a‘s spoliation of evidence
Pike seeks a ruling from the Court that a document bates stamped PIKE
00016834, which was discarded by Dubea and obtained by Pike, is not privileged and may be
used for any purpose in this litigation. Pike also seeks the imposition of sanctions against Dubea
For his intentional destruction ot" patently relevant evidence, including: (_l) a iinding of fact that,
while still employed by Pike, Dubea planned with others to form a competing business in
violation of the non-compete provision of his Employment Agreement, and he intended to solicit
l’il
Dubea to demonstrate that he in fact did not breach the non—compete and non—disclosure
provisions of his Eniployrnent Agreenient, that he in tact did not tortiously interfere with Pike's
business relations and employee agreements, and that he in fact did not misappropriate Pike trade
r
Case 1:05-cv-00879-SLR Document 42 Filed O4/27/2006 Page 2 of 4
secrets; (3) an adverse inference against Dubca, allowing the Court to assume that the evidence
in question is unfavorable to Dubea; (4) an order granting Pike hill access to Dubea's computers
so that Pike can conduct a forensic analysis of those machines to help ensure that Dubea has not
attempted to destroy additional evidence; and (5) monetary sanctions to compensate Pike for any
fees and expenses related to Dubea's destruction ot` evidence.
ln support of this motion, Pike relies on the following mateiials, all of which are
tiled contemporaneousiy herewith:
(a) Brief in Support ol`Plaintiffs' Motion for Order Rejecting
Dei`endant*s Claims ot` Privilege and for Discovery Sanctions Due
to Spoliation of Evidence;
(h) Declaration of Robert L. l<.immons (and accompanying Exhibits);
(c) Declaration of Sarah E. Paul (and accompanying Exhibits); and
(d) Proposed Order Granting l’laintift`s’ Motion for Order Rejecting
Det`endant’s Claims of Privilege and for Discovery Sanctions Due
to Spoliation of Evidence.
Pike Further requests that Pike be granted such other and further relief as the Court
deems just and proper.
M/0
OF COUl\lSE.t,:
William J. W de (#704)
Michael A. Paskin wade@rlfcom
Cravath, Swaine & Moore LLP Alyssa M. Schwartz (#435l)
Worldwide Plaza [email protected]
825 Eighth Avenue One Rodney Square
New York, NY l00l 9-7475 PO. Box 55l
(21.2) 474-1000 Wilmington, DE l9899
(302) 651-7700
April 27, 2006 Attorneys for Plaintiffs Pike Electric
Corporation and Pike Electric, Inc.
2
iz1..r:-si¤niw2-1
Case 1:05-cv-00879-SLR Document 42 Filed O4/27/2006 Page 3 of 4
CERTIFICATION PURSUANT TO
DISTRICT OF DELAWARE LOCAL RULE 7.1.1
Pursuant to Local Rule 7.1.1, counsel for plaintiffs Pike Electric Corporation and Pike
Electric, Inc. have consulted with counsel for defendant Mick Dubca ("Dubea") and determined
that Dubea does not consent to the relief sought in the attached motion.
E Alyg§a M. Schwartz (#4351)
RLFl»30(}7985»[
Case 1:05-cv-00879-SLR Document 42 Filed O4/27/2006 Page 4 of 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 27, 2006, I electronically tiled the foregoing
document with the Clerk of Court using CM/ECF, and have also served the document as noted:
_lE§_Y_ HAND DELIVERY
Lewis H. Lazarus, Esquire
Morris James Hitchens & Williams LLP
222 Delaware Avenue, 10m Floor
Wilmington, DE 19899
“ Alyssi Schwarlgg (#43 5 1)
12.t.r=1-2997741-z
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