While modern technology makes it easier for departing employees to misappropriate confidential information, that same technology can also prevent or detect and record misappropriation such that a court may deny an Anton Piller Order.
In Irving Shipbuilding Inc. v. Schmidt,  O.J. No 1031, the court set aside an Anton Piller Order where the plaintiff could prove its case without using the “fruits of the search”. Because of its data loss prevention system, the plaintiff knew exactly which electronic files the defendant had taken with him prior to the AP Order’s execution. The existence of this type of data loss prevention software was a critical piece of evidence that must always be disclosed by the moving party. The plaintiff’s ability to prove its case without the fruits of the search meant that it had failed to establish either procedural or financial harm.
When analyzing the question of whether there is a risk of destruction, courts will consider the electronic format of the evidence and the ease with which it can be erased. But, in this case, there was no real possibility that the defendant might destroy evidence before discovery. To justify the “draconian” AP remedy, there must be a probable risk of destruction, not just a possible risk.
Bottom line – tread carefully and consider whether the volatility of the electronic evidence in a particular case will justify, or prohibit, an Anton Piller Order.
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