Case law: Employer can search for and destroy confidential information on ex-employee's electronic devices and computer
An employer taking legal action against an ex-employee and/or its new employer for wrongful use of its confidential information can apply for a court order authorising a search of electronic devices and computers, and destruction of such information found, following a recent ruling.
This update was published in Legal Alert - July 2016
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An employee left his employment and joined a competitor, taking confidential information about his former employer's clients with him. When the competitor used the information to approach around 300 of the former employer's clients, and to guide its pricing policies, the former employer claimed wrongful use of its confidential information. It also asked the court for an interim order that the ex-employee's and the competitor's electronic devices and computers should be searched and any confidential information found on them destroyed.
Although there was no precedent for such an order, the court granted it, subject to conditions. It ruled that the employee and his new employer had admitted taking and knowingly misusing the former employer's confidential information and had apparently used a 'high degree of subterfuge' when doing so, so there was evidence they could not be trusted to search for and destroy that information themselves.
The conditions imposed included:
- An independent expert, appointed by the ex-employee, was to carry out the search
- The terms of the search were to be agreed between the parties
- The information discovered would be kept until after the main trial in case it had been wrongfully removed
- An employer taking legal action against an ex-employee and/or his new employer for wrongful use of its confidential information should consider applying for a court order allowing it to search for and destroy such information held on their electronic devices and computers
Case ref: Arthur J. Gallagher Services (UK) Ltd v Skriptchencko  EWHC 603
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