FBC represented the Yahav-Hamias Group (hereinafter the “Company”) in an application for leave to appeal to the Supreme Court from the District Court decision rejecting a pre-trial motion, in which the defendants sought to exclude, before the filing of a statement of defense, evidence that was obtained from a personal email of one of the Company’s employees. The Supreme Court decision not to overturn the District Court’s decision resulted in the admission of the evidence in the framework of an action that the Company brought over a scam that it faced.
The Company brought a statement of claim and requests for preliminary injunctive relief against a man that it hired to manage an area of activity at the Company and who turned out to be a “Trojan Horse” (hereinafter the “Defendant”) and other defendants. The Defendant operated from within the Company and with the cooperation of the other defendants to steal from the Company the area of activity that he was hired to manage.
The Company became aware of the scam by accident when one of its managers observed the email account of the Defendant that was left open on his computer at a Company work station.
A number of the email messages were attached to the statement of claim and the requests for injunctive relief that the Company brought against the Defendants and his partners to the scam. The defendants brought a motion to exclude the evidence of the email messages which the District Court rejected.
The Supreme Court held that the District Court decision should stand which allowed for the evidence to be used at the specific stage of the proceeding in the action that the Company brought against the Defendant and his partners to the scam. The Court accepted our firm’s interpretation of the Isakov case of the National Labor Court, that an employer cannot access a private email account (Gmail) of an employee (an Anton Piller example) but that the situation of an employer’s active monitoring should be distinguished from the passive and accidental discovery of deceitful activity (the facts of our matter).
The Court stated that, in certain circumstances, mere exposure to the emails is sufficient basis to require the need to defend the legitimate personal interest of the party that was exposed to them, and as a result, to allow the email evidence to be admitted even without obtaining an Anton Piller Order from the court.
In addition, the Supreme Court, accepted our argument that in certain circumstances the defenses available for privacy infringers under the Protection of Privacy Law can be applied, or in the alternative, the court can use its discretion under the Protection of Privacy Law (“for reasons which shall be recorded”) and allow evidence to be admitted even if such evidence was obtained by violating privacy.
