Non-party privacy tips the balance in favour of Anton Piller

2 Feb

On November 23rd of last year the Alberta Court of Queen’s Bench issued an Anton Piller order based significantly on a concern for the privacy interest of customers whose information the plaintiff alleged had been stolen.

The plaintiff is a BMW dealership that was confronted with a regrettable breach of its sales and customer relationship management system when it failed to remove system privileges from a terminated manager. It alleged the manager gained unauthorized access to the system and downloaded the names, e-mail addresses and “other personal details” of about 5000 customers.

I won’t detail the record, but the Court noted that it contained gaps. It seemed to be swayed by the customer privacy interest at stake and stated that a public interest supported making the order:

I am satisfied that even if Beck is innocent of some or all of the allegations being made against him on an ex parte basis, Bavaria has a public interest and duty under the appropriate Privacy Act legislation, to do everything it can to preserve the integrity of information that appears to have gone missing or unaccounted from almost 5,000 of its customers that it had care and custody of, and that this Order is also in the public interest.

This statement does not make clear why the Court felt the preservation of evidence afforded by an Anton Piller would be privacy-protective. In some circumstances retrieving evidence of misuse might help non-parties mitigate, but perhaps this is really about allowing a plaintiff (and custodian) some assurance that lost personal information has been brought under control (without copies being stashed away). For another case in which an employer attempted to use non-party privacy in enjoining competitive conduct by a departed employee see here.

Bavaria Autohaus (1997) Ltd. v Beck, 2011 ABQB 727 (CanLII).

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