There are various steps that employers can take to reduce the potential damage to their business in the event that employees depart and join competitors.
One of the most crucial steps is to ensure that if employees do leave, they cannot use the employer's confidential information to develop the competitor's business. In this regard, employers should ensure that any confidential information which is most likely to be of use to a competitor is protected by appropriate security measures. Further, the employer should take steps to track how and when data has been accessed, and for investigating potential concerns quickly, at a stage when action can be taken. Beyond use of confidential information, orchestrating team moves itself is often actionable either as conspiracy or breach of fiduciary duty or the duty of fidelity. Ensuring that evidence of such illicit activity is preserved is crucial.
Responding to suspicions
Once an employer becomes aware that a group of employees have resigned, or are proposing to resign, the employer must act quickly to:
investigate and determine what has been going on; and
take appropriate steps to protect its legal position.
Securing the evidence about the employees' suspected unlawful conduct is therefore crucial. Given the complexities and legal implications of the eDiscovery process, which demand an unfailing commitment to correct procedure at all times, it is important that expert help is sought at the very outset.
Forensic Collection
We work with forensic IT experts who bring an excellent technical knowledge base and proven project management ability to our clients. The forensic IT experts we work with are co-authors of the UK Government sanctioned "Good Practice Guide for Computer Based Electronic Evidence" (ACPO Guidelines) and they have qualified experts in ensuring that electronic information is properly gathered and retained.
Together, we and the forensic IT experts work to provide a full end-to-end service including forensic collection, processing, reviewing and production of large volumes of electronic information, supported by our own highly experienced employment lawyers.
The first step in the process is preserving the evidence. Often in the early stages of a team move, it is not known if a full investigation is warranted. However, waiting until the damage is done often means that crucial evidence has been lost. We have therefore come up with a low cost means of taking a forensic image of the relevant devices. Once forensic imaging has been completed on any assignment, the forensic IT experts will treat the data in accordance with the ACPO guidelines to avoid any accusations of "tampering" with the evidence. Evidence will be tagged upon receipt and the evidence number applied will stay with the data throughout the project lifecycle. Upon completion the evidence will be returned to you within sealed evidential bags. You may choose not to investigate further nor to analyse the data at all, but the option is there if the situation unravels into a team move where breaches have occurred.
We have agreed the following competitive rates for forensic imaging:
Cost Proposal – Forensic Imaging
Up to 4 laptops: £600
(NB: It takes the same time to image 1 laptop as it does for 4 laptops; hence the price is the same)
5 to 8 laptops: £1,200
Mobile phones device cloning is from £450 per device.
(NB: It takes the same time to image 5 laptops as it does for 8 laptops; hence the price is the same)
Imaging can take place out of office hours.
Once the forensic image has been taken, they will be stored on an external hard drive. Each hard drive costs £80 and the number required depends on the amount of data collected from the devices.
Evidence
If the imaged data needs to be analysed, the forensic IT experts have powerful search tools which can identify in considerable detail what activity has taken place on electronic equipment. It is an essential source of evidence for the employer where there has been wrongdoing and will be useable in court as evidence. Fees for analysing data will be determined in a case by case basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
