Company know-how prevails over the employee’s right of defence

The Court of Cassation, with judgement No. 12804 dated 22 May 2017, stated that a disciplinary measure can be applied to any employee who photocopies material representing company know-how, even if such activity is carried out to protect the employee’s right in a legal proceeding. In the specific case, the employee, first disciplined and then dismissed, appealed to the Court of Cassation stating that (i) the photocopying of the company material was necessary for his defence since he had been demoted for a long time (ii) the documentation was not confidential, and, in any case (iii) the protection of rights shall prevail over the duty of confidentiality. According to the Court of Cassation, this reason cannot be deemed well founded since, “even from the testimony performed”, it appeared that the photocopying did not concern “a mere proprietary material of the company”, but “instructions that contained specific information regarding the type of materials, procedures and the tools used (…) thus actual company know-how whose confidentiality is strengthened by the need not to divulge to third parties (including those who may be competitors) knowledge that has a production importance“. Therefore, according to the Court, what is emphasized is not “a generic duty not to disclose corporate documents, but a specific obligation to keep confidential documents that concern important and significant aspects of the employer’s production organization.” Documents that, among other things, the employee, according to the Court, could have requested to obtain through the court under Article. 210 of the code of civil procedures.