If you think the imaging order's going to hurt you, wait till the trial ...

TML Financial Solutions Ltd v More Business Ltd and others is a decision of Mr Justice Rimer in the Chancery Division (High Court, England and Wales) yesterday. It has been noted on the subscription-only LexisNexis Butterworth service but is not yet available elsewhere and - the IPKat suspects - probably won't be.

TML, a big player in the UK market for remortgage, loan and debt solutions for struggling domestic home-buyers, had a valuable database of individuals who were interested in, or had purchased, any of its financial products. In October 2006 TML's managing director agreed to front a management buy-out. At about the same time the first two defendant companies were formed, both of which were involved in the lead-generating business and were in direct competition with TML. The other five defendants were TML ex-employees, two of whose wives ran the defendant companies.

TML's managing director, suspecting that the ex-employees had gone off with the company's data and were using it for their own companies, managed to obtained a USB memory stick, the contents of which provided evidence that More Business and the other company had misappropriated TML's data and other confidential information.

Left: the Kat's favourite USB stick, available for a moderate price here

In reliance on this evidence TML obtained an order, on an application without notice (i.e. ex parte), that the various defendants (i) tell TML what documents they had in their possession or control, (ii) stop using that information, (iii) give TML all available hard copies containing that information and (iv) save any electonically stored information.

In inter partes proceedings TML sought a continuation of the order, plus an order permitting it to image any of the defendants' computers on which the documents on the USB stick had been stored. This, said TML, was to preserve evidence which would tell it exactly what confidential information the defendants had, how they had used it and what data had been deleted. The defendants yielded meekly to most of TML's demands, but objected to the imaging order saying that it would affect third parties and disrupt their business unless done at weekends.

Rimer J, unmoved by these protestations, continued the previous injunction until judgment or further order and gave TML its way on the imaging order too. The defendants could still apply to vary or discharge any part of that injunction if they wanted to, but it seemed to him that the imaging order was the proper course to take on the balance of convenience. Its execution wouldn't damage the defendants in the short term and was justified in terms of their conduct.

Right: Tiddles still can't work out which bit of the computer his new accessory plugs into

The IPKat thinks this approach is sensible, proportionate and very much in keeping with the IP Enforcement Directive 2004/48. Merpel says, computer equipment - and indeed other electronic gadgets such as mobile phones - is a real smoking gun in any sort of infringement proceedings these days, which is why it's so important to gain and retain access to it.

More on USB sticks here
Good and bad memories here
A la Recherche de Temps Perdu here
If you think the imaging order's going to hurt you, wait till the trial ... If you think the imaging order's going to hurt you, wait till the trial ... Reviewed by Jeremy on Thursday, June 28, 2007 Rating: 5


Anonymous said...

That USB stick photo is disgusting. Can you please reassure your readers that no real teddies were harmed in the creation of your blog post?

Anonymous said...

The cat with the revolver on the other hand is absolutely fine.

Anonymous said...

I actually found both the teddy and the cat with the revolver quite amusing.

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