You may have seen our recent post on the subject of Apple’s robust trade-secret protection program. Apple grabbed headlines again when a prototype iPhone made its way into the hands of a blogger at Gizmodo, who promptly posted a review of it. It didn’t take long for Apple to flex its trade-secret enforcement tools.  The “Rapid Enforcement Allied Computer Team” (a uniquely Californian computer-crime task force) descended on the blogger and reportedly seized a number of items including a laptop, hard-drive and other personal effects.  The message is unmistakeable: technology companies will go to extraordinary lengths to protect trade-secrets.

Could this happen in Canada?  Search warrants are typically used where a criminal investigation is under way.  In civil cases, a technology company could use an “Anton Piller Order”, which is a form of civil search warrant enabling representatives of a plaintiff to search the defendant’s premises and seize relevant documents and other evidence pertinent to the lawsuit.  It comes from a trade-secret lawsuit from the 1970’s, where a technology company convinced the court to permit a search-and-seizure at the defendant’s premises.  Such an order can only be granted where:

• there is a strong case for the plaintiff and the potential for “very serious” damage to the plaintiff;
• there is convincing evidence that the defendant has “incriminating documents or things”; and
• there is a real possibility that the defendant might destroy the incriminating evidence.

These orders can be set aside, as in this recent Federal Court case involving a copyright infringement claim: Vinod Chopra Films Private Limited v. John Doe, 2010 FC 387 (CanLII).

Calgary – 08:00 MST