Pre-Action Disclosure: Another Weapon Against Data Theft
All employers know how important it is to protect their
confidential information particularly when a key employee moves to
a competitor. The everyday use of email, memory sticks, pda
and mobile phones highlight the need for employers to ensure that
their electronic systems usage policies are up to
date. Employers should have
the ability to search systems to see whether
confidential information has been downloaded or passed
on. The courts have also recognised a changing world
with a seemingly less rigid approach to granting injunctive relief
or enforcing restrictive covenants.
A recent case, by a recruitment agency against one of its former
employees, shows that employers have another weapon at their
disposal in the fight to protect confidential information namely
pre-action disclosure.
Pre-action disclosure
Often the problem facing the employer is to work out what
confidential information is in the employee's possession.
The employer has suspicions but little or no proof. In these
circumstances it may still be inadvisable to apply for
interlocutory relief notwithstanding a more sympathetic legal
system. The employer must still prove wrong doing on the part
of the employee.
Pre-action disclosure, allows a party which is contemplating but
has not yet brought proceedings to seek disclosure of documents in
the other party's possession.
Case Law
In the case of Hays Specialist Recruitment (Holdings)
Limited (HSR) and anor v Ions and anor High Court 2008 IRLR904 the
High Court considered an application for pre-action
disclosure. The facts of the case were not unusual. HSR
was a specialist recruitment agency and it employed Mr I as a
Recruitment and Management Consultant. In 2007, after 6 and a
half years service, Mr I left to establish his own company.
Upon leaving Mr I was bound for a period of
6 months by restrictive covenants preventing him
from soliciting, canvassing, dealing with or
accepting instructions from clients or applicants
with whom he had dealt or had contact during his employment a
standard form of restrictive covenant.
During his time at HSR Mr I joined a professional networking
site very similar in structure to social networking
sites such as Face Book and MySpace. On the website
users create a profile and invite others to join and
"network" with them. The site Mr I joined was
purely designed for professional networking and included a feature
that allowed a user to upload his or her email
contacts and to invite them to...
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