Trigo ADR Americas, LLC v. OEM Logistics, LLC, No. 23-cv-2219-AGS-MMP (S.D. Cal. Oct. 2, 2026), full opinion (PDF)
When a departing employee's personal email is deleted, the question of whether copies survive elsewhere can open discovery into his new employer's systems. Trigo ADR Americas says its former employee, Eric Adler, emailed its information to his personal Gmail account on his last day. Adler's Gmail account, or at least some emails in it, was later deleted. Trigo sued Adler, three other former employees, and their new employer, OEM Logistics, for trade secret misappropriation.
On October 2, Magistrate Judge Michelle M. Pettit ordered OEM to search for surviving copies in sources linked to the deleted account. She denied requests for additional custodians and phones that Trigo had not shown were relevant or proportional.
What happened
Trigo sought the Gmail account in discovery. A subpoena Adler served on Google has not recovered any emails. Trigo moved to compel three kinds of discovery from the defendants. It wanted ESI searches of nine additional custodians, all former Trigo employees now working at OEM. A second request sought a global search of OEM employees' email accounts. The third covered the OEM-provided cell phones of all four individual defendants.
The defendants argued that Rule 37(e) applies only to ESI proven lost. In their view, Trigo had offered no such proof.
The court's analysis
The court called the defendants' argument disingenuous, because the defendants had acknowledged that the account and emails were relevant. They had also admitted the deletion and represented that they could not restore the account or its contents.
Rule 37(e) turns in part on whether lost ESI can be restored or replaced. Whether Adler's emails could be replaced was still unresolved, the court acknowledged. In the court's view, that uncertainty made any substitute information relevant and discoverable. Sanctions were not before the court, which noted that deciding them on this record would be premature. The court authorized Trigo to take a short deposition of Adler on the deletion of his account.
Each request was then tested for relevance and proportionality. The court granted a modified version of the global search, keyed to the deleted account. OEM must search its employees' email and other repositories for messages sent to or received from Adler's Gmail address. In the court's view, this search served Trigo's purpose of replacing the deleted emails, if possible.
The court denied the request to add nine custodians. Trigo had identified them based entirely on their former work at Trigo, the court found. Trigo claimed no connection between those custodians and the deleted emails. In the court's view, former employment at Trigo was insufficient by itself to establish relevance to the trade secret claims. The court described the request as expansive rather than focused. It concluded that the request was not proportional.
All four individual defendants were already ESI custodians. Trigo alleged no link between the deleted emails and the work phones of Adler's three codefendants. Searching those phones, the court concluded, would be unreasonably cumulative, duplicative, and not proportional. Because of the deletion of Adler's emails, the court concluded that a search of his OEM-provided phone was relevant and proportional. The court noted the defendants' acknowledgment that they had not yet searched specifically for emails from his Gmail account. The court described the burden of the phone search as of Adler's own making. Trigo must first propose specific, narrowly tailored searches.
The defendants faulted Trigo for failing to identify any document stored on the phone. The court answered that Trigo has no way to identify an email deleted before production.
Why it matters
A responding party whose custodian's relevant ESI was deleted should expect uncertainty about replacement to justify discovery into where copies may survive. An argument that the loss is unproven is unlikely to defer that discovery to a sanctions motion. A requesting party facing a deleted account can seek a deposition of the account holder about the deletion without first moving for sanctions.
A responding party is better placed when it has already searched its own systems for the deleted address. Counsel who has run that search, and can report the results, has a factual answer to broader requests. A court may discount burden arguments when the burden traces to the deletion itself.
A requesting party should tie each request to the lost ESI. The deleted account's address and the account holder's work phone are the kind of links the court accepted. Former employment at the requesting party is a weak basis for adding a custodian. Without a showing of the custodian's role in the dispute, such a request invites a ruling that it is neither relevant nor proportional. Proposing narrow search terms for any device answers the burden objection early.
The full opinion is available as a PDF.
