The availability of orders to protect employers against suspected breaches of employers' confidentiality has been extended by the High Court in the decision of Arthur J Gallagher Services Ltd V Skriptchenkov.
The case focussed on the alleged misuse of confidential information belonging to the insurance group, Arthur J Gallagher, by former employees, including Mr Skriptchenkov, who had moved to a competing company. Following the disclosure of approximately 4,000 documents, it was revealed that the competitor company was widely misusing the insurance group's information and a draft defence was filed admitting a 'limited extent' of misuse.
The insurance groups sought an interim order to allow them to inspect and take images from all computers and electronic devices and to delete any confidential information that was found on them.
The High Court granted the destruction order, and gave its opinion that the former employees could not be trusted to seek out and delete such material themselves. As a result, therefore, the destruction of the relevant material was overseen by an external computer expert and assurances were given that copies would be kept for restoration if information was found at trial to have been wrongly removed.
What Should Employers Do Next?
This case illustrates the continuing developing landscape regarding the Court's approach towards assisting employers to protect their confidential information, and enforce any breaches of it. Whilst the Court is showing more willingness to use invasive methods to protect confidential information, employers should continue to take practical steps themselves, for example ensuring that confidential information is only available to employees who need to have access to it, that they have an obligation to keep it confidential and not to keep copies, and an obligation to destroy it and/or deliver up a copy of what they have destroyed on termination.