How do you surrender an electronic file?

I’ve given away my punchline here in my heading.

In Think Global Recruitment Ltd v Moultrie [2008] NSWSC 869, Think Global, an international recruitment company, sought interlocutory injunctions against Moultie and 4 others, former employees of TK.

Earlier this year, Moultrie, the first of these employees to leave TK’s employ, had gone to work at Global Ambition, which was in the same line of business. Shortly after, Think made the other 4 redundant and closed its Sydney (and only Australian) office. Moultrie got them all jobs working with him at Ambition.

Think Global wanted interim orders (that is: orders before the main trial) stopping them all working for Global Ambition because of the non-compete clauses in their employment contracts. Think also wanted interim orders about disclosure of confidential information.

Justice Austin wasn’t satisfied there was even a “serious question to be tried” (which is what you need to get an interim order) about breaches of confidentiality. He declined to grant injunctions on the non-compete clause because of the balance of convenience -if granted, the orders would deprive Moultrie et al of their livelihood (which in itself is a relevant argument about whether it was even enforceable), whereas Think Global didn’t really even have an office in Australia any more. Cunningly, Moultier et al also offered:

“an undertaking to the Court that from certain specified termination dates until the hearing of the proceedings or further order, they will keep or cause Global Ambition to keep full and complete records including candidate details, dates, placement details, fees generated, costs and profits, in respect of all transactions involving the placement by any of the defendants of candidates for recruitment with PricewaterhouseCoopers Canada and KPMG in the Cayman Islands, Russia and Bermuda. “

Well, the judge thought this was significant, but it is too complicated to tease out.

All of that is quite interesting and possibly informative about the business of recruiters, seen from a certain wrong-end-of-the-telescope legal perspective.

But Justice Austin did find that:

there is evidence that Mr Moultrie received electronic files made during the course of his employment that are the property of the plaintiff, and therefore he is obliged by clause 18.1 (second para) to surrender them to the company.

So how do you surrender an electronic file? There are two aspects of “surrender”: one is a return to Think Global, but Think Global presumably still has its own copies of the files, so the live issue is the bringing to an end of possession of any copies by Mr Mousrie. Aren’t we being told all the time that an electronic file will always be there somewhere, no matter what you do to cover your tracks or erase it? How far does Mr Mousrie have to go?

2 Responses to “How do you surrender an electronic file?”

  1. O Says:

    I don’t think it’s true that a electronic file will always be there somewhere. It is true that if you delete a file in Windows, for example, the information is not erased but rather the signpost to it is deleted, as it were. So if you were to go through ALL the information on a disk, and if you knew what pattern you were looking for, the file would still be discoverable.

    However, you can also delete a file such that the information is overwritten (by zeros, or a section of Shakespeare, or gobblydegook). When that’s done the information no longer exists and is deleted in a true(r) sense. I understand this is the default method of deletion in systems like Unix and can also be achieved by various software programs.

    Of course proving that the information has been deleted in this instance is akin to proving a negative and something of a logical impossibility… Maybe Global will have to fall back on having forensic scientists shine a blue light on everything and waiting for the flashbacks… Works every time on CSI.

  2. marcellous Says:

    I don’t think it is a question of proving the information has been deleted, but it may be that Global wants something irreversible and possibly verifiable in some way. Actually, on reflection, it’s not so different from the position you are in when you are required to deliver up all copies of a document. At some point it has to be assumed that the order is obeyed unless there is a basis to establish it has not been.

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