Offensive — continued from Page 50
(hereinafter “Pillsbury”) were in posses- sion of confidential personnel documents removed from Pillsbury’s offices without its consent. Pillsbury commenced an action to compel the return of the docu- ments. The trial court found that the doc- uments were intended to be confidential and ordered the plaintiffs and their coun- sel to turn over the originals and all copies of the documents to the court for return to Pillsbury. The plaintiffs appealed. The Court of Appeal affirmed, condemning “self help” discovery outside the legal avenues of discovery provided by the Discovery Act. (Id. at 1289; See also, Conn v. Superior Court (1987) 196 Cal.App.3d 774 [242 Cal.Rptr. 148].) Where a client appears at counsel’s
office with documents improperly removed from the employer’s premises, the prudent course of action may be to make a list of the documents, return the originals and all copies to the employer, and then request in discovery those docu- ments deemed relevant to the prosecu- tion of the case. (See, e.g., Order Granting In Part And Denying In Part Defendant’s Request For Return Of Documents From Plaintiff issued in Bedwell v. Fish & Richardson, U.S.D.C. Case
No. 07-CV-0065-WQH (JMA) (S.D. Cal. December 3, 2007).)
The employer threatens to sue the employee or his or her new or prospective employer, claiming breach of a non-compete agreement On occasion, an employer will try to
prevent a former employee from accept- ing a job with a competitor, claiming that the employee is bound by an agreement not to compete. The employer may threaten to sue the former employee or even the new or prospective employer. California has a strong public policy
in favor of allowing employees to work. This public policy is expressed in California Business & Professions Code section 16600 which provides, “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” (Cal. Bus. & Prof. Code, § 16600.) This provision has been consistently declared by California courts to be “an expression of public policy to ensure that every citizen shall retain the right to pursue any lawful employment and enterprise of their
choice.” (Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 859 [27 Cal.Rptr.2d 573].)
There are some limited exceptions to
the general rule that non-compete agree- ments are unenforceable. For example, agreements designed to protect an employer’s proprietary or trade secret information are enforceable. (Moss, Adams & Co. v. Shilling (1986) 179 Cal.App.3d 124, 130 [224 Cal.Rptr. 456, 460].) Non-compete agreements may also be valid where a person sells the good will of, or substantial ownership interest in,a business or agrees not to compete upon dissolution of a partnership. (Bus. & Prof. Code, §§ 16601, 16602 & 16602.5; See also, Thompson v. Impaxx, Inc. (2003) 113 Cal.App.4th 1425, 1428 [7 Cal.Rptr.3d 427, 429].) Absent one of the statutory excep-
tions or the implication of trade secret information, an employer may not enforce a non-compete agreement to pre- vent an employee from obtaining employ- ment with a competitor. That doesn’t mean some employers won’t try. An employer’s threats – even if not legally supportable – could cause a prospective
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www.rileypugh.com 52— The Advocate Magazine APRIL 2011
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