By Graeme McFarlane

You have just pulled off the greatest coup of your career.  Through careful positioning your main competition has just lost its regional account manager for your area.  He’s agreed to work for you.  You’ve hired a prince.

He started a couple of months ago, and his work is paying unbelievable dividends.  Sales in his region are up 25 percent.  Customers are flocking from your competition and the future looks really bright.  Your boss repeatedly congratulates you on your ability to attract good people.  Your star has climbed considerably in the organization.

Then it happens.  At 9 a.m. one Monday morning a lawyer arrives at your offices with a court order, a notice of civil claim and a stack of affidavits.  He introduces himself as a supervising solicitor overseeing an order that allows your star’s previous employer to search your office for documents related to your star’s business activities.

You are stunned and carefully read the court order.  It allows you two hours to consult with your lawyer – which you do.  She says that you’ve been served with an Anton Piller order which is a form of a civil search warrant.  She advises you to cooperate with the supervising solicitor and the search team.

You return to the supervising solicitor and advise him that you will cooperate.  He makes a call and three other people attend at your office: a lawyer representing your star’s former employer, a manager from that employer and a computer forensic specialist.  They start to search and spend all day looking for and taking corporate records.  They also take your star’s computer and the hard drive from your email server.  You are informed that you will not get this equipment back for seven days.

You send the package of material to your lawyer.  She informs you that there is a strong case that your star had stolen confidential information from his previous employer.  He has then used that information in pursuit of the clients that have been inundating your shop.  She explains that the employer was able to convince the court that there was strong evidence that this had occurred and that it was likely that your star would have destroyed this information if a lawsuit had been started in the normal course.  She recommends that unless the information is completely false (which it appears it isn’t) your best course of action is to settle and settle fast.

Could this happen to you?  Indeed it can, especially when hiring talent away from competitors.  An Anton Piller order is an extreme remedy and is only found in situations where the information necessary to prosecute a lawsuit may be destroyed by the offending party.  Applications for these orders are made without notice to the other side in order to eliminate the possibility that the evidence is destroyed in the interim.  In order to obtain an Anton Piller order, the Plaintiff must convince a court of the following:

• It has a strong prima facie case;
• The damage to the plaintiff of the defendant’s alleged misconduct must be very serious;
• That there is convincing evidence that the defendant has in its possession incriminating documents or things;
• That there is a real possibility that the defendant may destroy such material before the discovery process of the lawsuit can do its work.

If convinced of the above, a supervising solicitor is engaged to be the agent of the Court.  His job is to ensure that any search is conducted fairly and the defendant is given an opportunity to obtain legal counsel and to claim privilege over any necessary items.  He will make an inventory of all items seized and takes custody of the material so that the discovery process can occur in the normal course.

You can avoid the possibility that you are subject to such and order.  When hiring require that any candidate disclose the terms of any non-compete or non-disclosure agreement that they are subject to.  Review and such agreement and satisfy yourself that any engagement with your company will not risk a breach of those agreements.  Expressly prohibit employees from using any confidential received from previous employers.  Examples of this type of information include customer lists; pricing guidelines; marketing materials; and strategic plans.  It’s better to do this work up front and have policies in place before a supervising solicitor darkens your door.

Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk: Spring 2011)