by Michael Fox
It started as many such cases do. A departed employee, a state court lawsuit alleging misappropriation of trade secrets and breach of a confidentiality agreement, an ex parte motion seeking immediate discovery to prevent the destruction evidence. What took this one above the everyday was a search order executed by a policeman to enter the ex-employee's house and take his computer. When entry was initially refused, the lawyer for the employer returned to Court and got an ex parte enforcement Order allowing the police officer to use reasonable force to enter the house. All of that was ultimately accomplished and the ex-employee's computer and other evidence was taken.
Although nothing is conveyed in the opinion as to the result of the state court litigation, what did happen was a federal suit by the ex-employee under § 1983, alleging the actions of the employer, several of its employees and their attorneys who participated in obtaining and carrying out the order violated his Fourth Amendment rights to be free from unreasonable searches and seizures and his procedural and substantive due process rights under the Fifth and Fourteenth Amendments.
Unfortunately for the ex-employee, his suit foundered on the shoals of no state action, a pre-requisite for a valid § 1983 claim. Yanaki v. Iomed, Inc. (10th Cir. 7/26/05) [pdf]. But my guess is that somewhere today there was a sigh of relief at the offices of some lawyers who probably did not enjoy being on the receiving end of a lawsuit, even if it turned out successfully.