The option of a dawn raid may not be familiar to many businesses but they are a useful weapon, says JENNIFER MATTHEW
Protecting your assets has always been a priority for every business and in days gone by, that might simply have meant ensuring your cash or stock were locked away safely.
However, we now find ourselves very much in the information age, and access to digital data has never been more important than in today’s highly competitive business world.
Everyone is looking for that edge, and protecting what you will have bought or built up, invented or created, is vital for the success of any organisation.
A recent case and judgement in Scotland brought into sharp focus the importance of digital data protection, but also the actions a business can take to protect themselves.
The case itself surrounded the data owned by a luxury jet and helicopter charter specialist and which was believed to have been accessed by a former employee, the defender, prior to exiting the business.
The pursuer, the charter specialist, was understandably concerned that the information in question may well be used by the former employee, possibly to compete.
Now this is where it gets really interesting and, beyond legal circles, into the sphere of high drama!
Aberdein Considine were instructed to take urgent action to help recover this confidential information, and we obtained a warrant for a “dawn raid” on the former employee’s place of business. Sounds like something from a crime novel? Well, not quite, but in reality an area which will be of significant importance for all businesses.
The Sheriff was persuaded to grant the order without first advising the defenders, known in the legal world as “ex parte”. In this type of situation, the court must be satisfied that there is a strong case, on the face of the information presented at the hearing, for making such an order, without giving the defenders an opportunity to be heard in opposition. Quite a big deal.
A team was assembled to carry out the raid. This included Sheriff Officers, a locksmith, the Commissioner (a highly experienced Advocate), an IT expert, shorthand writer and a solicitor.
Documents were recovered, a separate Court of Session action was raised for interdict and an order for the return of said documents. The Sheriff was also persuaded to award the expenses of the action to our client.
A real success story, but possibly the option of a dawn raid may not be familiar to many businesses.
Dawn raids have been utilised to great effect by the EU Commission and the Competition and Markets Authority but they are still very much a novelty in Scottish Civil Litigation.
Most importantly it is a critical weapon in the armoury of any business to protect themselves and their intellectual property. Findings from a dawn raid may be used as evidence in further court actions and if you reasonably fear that sensitive or valuable data has been taken unlawfully, you may wish to seek a warrant for a dawn raid. If you can demonstrate reasonable apprehension that the defender will try to hide of dispose of the data you can ask the court for this to be done without the prior knowledge of the defender.
A further, key aspect of the final outcome was that the Sheriff provided some clarity on where the expenses of this type of action should be borne; in this case the dawn raid was justified, and the normal rule that expenses should be awarded to the successful party applies.
Ultimately, if you do think your business data has been compromised, it goes without saying that you should seek appropriate professional legal advice as soon as possible.
You may not always require the sledgehammer of a dawn raid to crack what might be a small nut, but it’s always good to know it’s in the tool bag.
Jennifer Matthew is an associate, dispute resolution at Aberdein Considine
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