An Employer summoned an employee to a hearing prior to termination. Moments after the termination the employee began working for a competitor. A Routine inspection revealed that prior to the hearing the employee entered an employer's confidential database and passed it on to his computer at work, with a heavy suspicion that the employee sent himself an e-mail from the workplace which contains the confidential database. But how can employer prove that the employee actually did it?
The concept of an “Anton Piller” order was first introduced in the Common Law legal system but it is common today in many countries, including Israel. The nature of the order is exploratory and its purpose is seizure of evidence before it disappears by "the press of a button". In view of the nature of the order it is clear that this is an extreme remedy that requires caution and balanced judgment prior to granting it. However, proper legal action may induce the Labor Court to grant this severe and unusual remedy ex parte in appropriate circumstances.
The Israeli Commercial Torts Law allows in some cases a civil search warrant issued as part of the purpose of maintaining the proprietary rights of the order applicant such as an employer suspecting an employee of larceny of confidential information. In general, it is prohibited for an employer to monitor a private mailbox of an employee (such as: Gmail, Hotmail, etc.) or enter it, but if an employer seeks to penetrate the mail box due to apprehension of elimination of potential evidence and burdening of the legal process, the employer may move the Court for an Anton Piller order for search and seizure of potential evidence under the conditions set by law and case law.
For example, in a case recently the Labor Court received a motion for an order (ex parte, i.e. without the knowledge of the employee) by an employer who is represented by our office, to enter the home of an employee with a computer expert and police escort in order to seize his personal computer and enter his private mailbox to check the employer’s material suspicions as to the activities of the employee. Following the search the employee admitted to the larceny of the of the employer’s trade secret (although claimed to have deleted the confidential data and not to have transferred them to another – an issue to be discussed by the Court at a later stage).
Thus, if an employer wishes to enter an employee’s private mailbox upon suspicion that the employee acted improperly and the mailbox contains evidence for this, one should consult an attorney specializing in the field, to ensure that a request for an Anton Piller order is duly submitted in accordance with the law and case law. It should be noted that even when the order is granted it is important that this order will be duly consummated to prevent a situation under which the employee can try and cancel the order due to lack of due process.