If the circumstances warrant, it is possible to obtain an Anton Piller order to search a former employee’s home to obtain information about a matter in.dispute This may include obtaining including copies of a former employee’s email messages stored in his or her personal account.
On December 19, 2006, the Honourable Mr. Justice P.B. Hambly of the Superior Court of Justice in Ontario granted an Anton Piller order (the “Order”) to Factor Gas Liquids Inc. (“Factor”) based on an ex parte motion. The Order set out: (i) the solicitors to supervise its execution; (ii) the forensic investigators to be used; (iii) the dates on which both the solicitors and investigators could enter the home shared by the male defendant (“Jean”) and the female defendant (“Margaret Jean”); (iv) the right to record any evidence found by the search by audio, video or photograph; and (v) the right to inspect, remove or copy any relevant information from any form of media (including the hard drives of computers, CD-ROMs, USB keys, floppy disks, cell phones and personal digital assistants).
The circumstances that supported the Order included: (i) evidence of Jean’s use of his personal email account while at work for Factor in relation to a secret kickback scheme; (ii) evidence that Jean had misappropriated Factor’s confidential information and used his personal email account to communicate it to one of Factor’s competitors; (iii) evidence of substantial copying of Factor’s information by Jean in the period leading up to the male defendant’s dismissal; (iv) an inability to secure the emails in any other manner as the provider of Jean’s email account would only provide access to Jean’s email messages in response to a court order issued in the State of Texas; and (v) evidence that Jean had used software in an attempt to conceal evidence that he had stored confidential information of Factor locally on his Factor computer.
If the circumstances warrant, it is also possible to lose the benefit of an Anton Piller order to obtain information about a matter in dispute, which information may include copies of a former employee’s email messages stored in his or her personal account. When determining whether or not to set aside the Order, Mr. Justice Hambly considered Factor’s conduct including: (i) failing to disclose that it had filed a lawsuit in Texas on the same matter at the same time as it was seeking the Order; (ii) failing to disclose that the provider of Jean’s email account was preserving the messages indefinitely even though the provider would not produce them without an order to do so from a court in the State of Texas; (iii) failing to disclose that it was also seeking an Anton Piller order in relation to another defendant’s corporate premises that was likely to yield copies of the messages being sought under the Order; and (iv) applying for and obtaining from a court of the State of Texas an order requiring the provider of Jean’s email account to produce the messages. Taking this conduct into account, the Honourable Mr. Justice P.B. Hambly concluded that: (i) there was no risk of Jean destroying the emails; and (ii) Factor had breached its duty of disclosure in connection with the Order. He set aside the Order.
The decision of the Superior Court of Justice is available at: http://www.canlii.org/en/on/onsc/doc/2008/2008canlii15900/2008canlii15900.html