Facebook Hack Gave Boss Unclean Hands, Workers Tell 3rd Circuit

PHILADELPHIA (CN) — Engineers accused of theft of trade secrets urged the Third Circuit on Monday to revive their privacy claims against the former employer who they say snooped their Facebook messages.

The engineering consultancy Scherer Design Group initiated the litigation early last year, a few months after four of his employees resigned and began working under one of them at newly created competing firms.

Robert Scherer, their former employer, found evidence that that the workers downloaded company files during their employment, but Daniel Hernandez and the other defendants claim that this evidence was obtained by invading their privacy.

Though Scherer does not deny that he accessed conversation between the four defendants on Hernandez’s Facebook Messenger account, Scherer claims claims that Hernandez left the account logged in on a company computer.

Hernandez for his part denies this and contends that his private conversation was accessed without permission.

So far, however, the defendants have failed to persuade a court with their claims. This past July in New Jersey, a federal judge granted Scherer an injunction and dismissed the counterclaims against it filed by the former workers.

Pushing for a reversal Monday, David Kistler of the law firm Blank Rome told the Philadelphia-based Third Circuit that Scherer “inappropriately obtained” evidence against his clients.

“The lawsuit if predicated on illegally hacked information,” Kistler said. 

When U.S. Circuit Judge Thomas Ambro asked how Scherer’s breach-of-loyalty claims had “anything to do with the hacking,” Kistler cited the unclean-hands doctrine, saying that relief is off the table for a party who has broken the law. 

Disputing the boss’s version of how he accessed the workers’ conversation, Kistler also claimed that Scherer installed a software known as Facebook Unseen, which allowed him to remain hidden while monitoring messages between the former employees for five to six weeks. 

Ronald Coleman, an attorney for Scherer Design Group with the firm Mandelbaum Salsburg, had an explanation for the software, however, as well. He said Scherer only downloaded the program after finding the initial messages and after the employees suspiciously retracted their consent to turn over their company-provided laptops. 

“So you acted badly, but they acted worse,” U.S. Circuit Judge Julio Fuentes pressed Coleman. 

Judge Ambro asked Coleman if it would be acceptable if he accessed his Facebook without consent. 

“It might not be, but it might not arise to Unclean Hands,” said Coleman. 

Judge Fuentes appeared unsure of just how impermissible it was for Scherer to access his employees’ messages. 

“There’s nothing wrong with that is there? I feel like my emails are being read by the Clerk’s Office,” Judge Fuentes laughed. 

The panel was rounded out by U.S. Circuit Judge Patty Shwartz. The panel did not indicate when they will rule.

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