Diana B. Kruze

When an inventor-physician claimed his former employer, Kaiser Foundation Health Plan Inc., stole his secret source code for a web-based medical imaging software, Kruze, defending Kaiser, went to work. Scouring the Internet via the Wayback Machine archive, she hit gold.

"The plaintiff had published part of the code on his website, linked to a technical paper," she said. That negated the secrecy element of the plaintiff's lead cause of action.

"A whoopee moment. I showed it to our expert and he confirmed it," Kruze said. "It brought a big smile to my face. The Wayback Machine is a fantastic tool for litigators. A lot of people don't recognize that there is an historical record" of the Internet.

Kruze wielded the information as the basis for a summary judgment motion on the plaintiff's misappropriation claim. It was a long shot, due to the fact-intensive nature of such litigation, but it proved a winner, eliminating all but one cause of action, a contractual claim. "I got to second-chair the trial on that claim," Kruze said.

She prepared all of the pretrial filings, witness outlines and cross-examinations. She handled the oral argument on motions in limine and jury instructions. "And I got to take my first voir dire, that was awesome," she said.

At the time, Kruze was a senior associate, on the verge of making partner. "I got to try the case with Arturo González as first chair," she said, naming the prominent head of MoFo's commercial litigation and trial practice group. "He loves the courtroom so much that even though you haven't slept for four nights, he makes you love it, too."

The jury returned a complete defense verdict. "The client was over the moon. There's nothing better than solving your client's problems," Kruze said. Phaedrus Internet Development Inc. v. Kaiser Foundation Health Plan Inc., RG10494574 (Alameda Super. Ct., filed Jan. 21, 2010)

Kruze said the outcome should serve as a caution to anyone who puts sensitive material online. "When you get down in the weeds, there's a lot to find via e-discovery," she said. "I love that stuff. I'm the licorice jellybean; I take work nobody else wants."

- John Roemer