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Lack of full disclosure: special costs in failed Anton Piller Order

By Jordan Deering

In recent years, employers have increasingly sought and obtained Anton Piller Orders (APOs) where a departing employee leaves with confidential information. The strategy is often extremely effective: the employer recovers the confidential information and obtains significant leverage in the litigation, usually prompting settlement. While effective, APOs are not for the uninitiated — the courts have referred to this remedy as one of the ‘nuclear weapons’ of litigation. Employers and their counsel must exercise extreme caution when using APOs.

The British Columbia Supreme Court’s recent decision in Pierce v Jivraj 2014 BCSC 926 represents a warning for employers and their counsel in seeking an APO. In that case, the court ordered special costs personally against the plaintiff’s counsel for failure to meet the high burden of full disclosure in the APO application.

The action originated as a defamation suit by Mr Pierce against Mr Jivraj. Mr Pierce alleged that Mr Jivraj improperly published statements that various securities exchange commissions had imposed regulatory sanctions against Mr Pierce for ‘ill-gotten gains’ from stock manipulation…

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