The Third Circuit recently held that a former employer’s alleged surreptitious monitoring of a departed employee’s Facebook messages was not enough to invoke the unclean hands doctrine in Scherer Design Grp., LLC v. Ahead Eng’g LLC, No. 18-2835, 2019 WL 937176 (3d Cir. Feb. 25, 2019). SDG, an engineering firm, became suspicious when several employees left the firm and a major client left with them. Although the firm had no specific policy informing employees that it could monitor their computers, SDG decided to look through an employee’s computer and Facebook messages for any evidence of plans to take the client from SDG. SDG actively monitored its former employee’s Facebook account for over one month after he left.

As it turns out, the former employee’s Facebook messages confirmed SDG’s suspicions. The Facebook messages revealed the former employees’ plans and actions to secure client information and other intellectual property. Armed with information from these messages, SDG then filed suit in New Jersey Superior Court for misappropriation of trade secrets and breach of duty of loyalty, among other things. SDG also sought a preliminary injunction. The employee defendants asserted that SDG had unclean hands doctrine based on the unauthorized Facebook monitoring.

The Third Circuit upheld the District Court’s grant of the preliminary injunction, holding that the unclean hand s doctrine did not apply in this case. To assert the unclean hands doctrine, the party invoking the doctrine must show that (1) the party seeking equitable relief committed an unconscionable act and (2) the act is related to the claim upon which equitable relief is sought. The Court put aside the question of whether SDG’s monitoring of its employee’s Facebook was unconscionable because it held that the act was not related to the preliminary injunction for three separate reasons:

• First, the act of monitoring the employee’s Facebook account did not lead SDG to acquire the rights for trade secret misappropriation or breach of fiduciary duty. It simply offered evidence to support the claims. The Third Circuit compared this to a patent infringement case: “unlike a patent holder who obtains patent rights based upon a fraudulent patent application, SDG did not monitor Hernandez’s Facebook so it could obtain a right SDG did not otherwise have.”
• Second, the Court found that SDG could prove its claim without relying on the Facebook messages. The Court emphasized that information from the messages could all be corroborated with other actions on the computer, like downloading files of intellectual property.
• Third, the Court found that there could be other remedies for the employee for the alleged privacy violation. But, that remedy was not a bar to the preliminary injunction at issue here.

As the saying goes, two wrongs don’t make a right, but at least in this situation, one wrong doesn’t take away a right to enjoin another wrong.