Be careful what you ask for

Capital One Services, LLC, et al. v. Foster, Civil Action No. 3:09–CV–569 (E.D. Va., February 11, 2010). On September 11, 2009, Capital One sued Foster, alleging that Foster had (1) breached an agreement by using confidential information without permission, (2) had aided and abetted current Capital One employees to violate their fiduciary duties to Capital One, and (3) had misappropriated Capital One’s trade secrets. The matter was set for trial on March 10 and 11, 2010. During discovery, Foster served extensive document production requests on Capital One.

Based on the information it found in reviewing its own documents, Capital One sought leave to amend its complaint to add three more claims: (1) breach of fiduciary duty, (2) fraud, and (3) violation of the Stored Communications Act, 18 U.S.C. § 2701. The Court found that Capital One had not unduly delayed asking for the amendments and that Foster had presented no evidence of prejudice caused by the amendment. Accordingly, about a month before trial, the motion for leave to amend was granted.

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