On October 11, 2005 Justice Quigley of the Ontario Superior Court of Justice permanently stayed a plaintiff’s action when the plaintiff electronically helped itself to an Anton Piller type remedy and obtained privileged material in addition to the intellectual property which was the subject matter of the dispute.
Autosurvey had hired the principal defendant (Prevost) to design software for the Internet delivery of surveys. The software Prevost design was based on three source codes that were his personal property. Eventually, Autosurvey’s principal and Prevost had a falling out.
While an Anton Piller motion was pending, Autosurvey received a complaint from one of its customers that it was unable to access its purchased services. Upon investigation, Autosurvey found that the data had been relocated to another server in the same off-site building as Autosurvey’s server. Autosurvey surmised that this server was under the control of Prevost, and Autosurvey feared that Prevost would further interfere with the Autosurvey server.
Autosurvey launched a pre-emptive strike, “hacked into” Prevost’s server and copied its contents. This included considerable amounts of customer data, confidential source codes for software, personal business and financial records, copyrighted software and personal electronic communication. Most troubling was the fact that 29 emails between Prevost and his lawyer in connection with the Autosurvey litigation were copied. Because of the way Autosurvey covered its tracks, what exactly had been copied and done was unclear. When Autosurvey informed its lawyers what it had done the day after the copying, counsel advised Autosurvey to “secure its property, preserve the evidence and note the contents”.