Rare search order used to seize documents from former Irving publisher

Brunswick News Inc. has used a little-known legal procedure to allowthe searchof ahome of a former newspaper publisher to try to ensure he doesn't use confidential information to start his own publication.

William Kenneth Langdon resigned as publisher of the Woodstock Bugle-Observer on Sept. 19 and has since opened the office of the Carleton Free Press, which is expected to launch its first issue in November.

In his resignation letter,which he hasfiled with thecourt,Langdon cited harassment by Brunswick News vice-president Victor Mlodecki and disillusionment with company management practices that included orders to drive Irving's competitors out of business as key factors in his decision to step away from the company where he had worked for more than a decade.

Brunswick News, which is owned by J.K. Irving,initially sought an injunction to stop Langdon from starting a new publication in Woodstock but last week withdrew that request in a Saint John court.

Now Brunswick News is asking the court to issue an order preventing Langdon from approaching Bugle customers, advertisers and employees on behalf of his new paper.

As part of the request, Irving's legal team asked Justice Peter Glennie to issue an Anton Piller order.

The rarely used court order allows a private search as part of a civil action as means of seizing evidence without prior warning to prevent the destruction of incriminating evidence. When used, the order is generally issued in cases of alleged trademark, copyright or patent infringements.

Typically the order is only issued when there is potential that serious damage will be done to the applicant and there is clear evidence that the individual possesses documents that may be destroyed.

According to a statement of claim filed by Brunswick News's lawyer, Langdon held a key senior management position that gave him access to confidential and proprietary information.

Langdon contends the judge must have only been told he was resigning from the Bugle to start a competing newspaper, and not beenprovided with the resignation letter.

"It is incumbent on counsel seeking an ex parte order to disclose all relevant information to a presiding judge and that simply did not happen in this case," Langdon told CBC News.

InLangdon's affidavit, which gives his statement of the facts pertaining to the case,he said hebegan to explore the option of starting another newspaper in Woodstock around Aug. 23 and also told Brunswick News of his plans in his letter of resignation.

But Langdon saidBrunswick Newsis trying to quash the business before it even gets off the ground.

All of the English daily newspapers in New Brunswick are owned by Irving and its other entities, as are all of the weekly publications except the Sackville Tribune and the St. Croix Courier.

"I had no idea that this would result in this type of, well, I feel it's been a smear campaign against me personally and the paper by extension," Langdonsaid recently toCBC News.

In a statement issued by Mlodecki on Wednesday afternoon, he said Brunswick News welcomes competition in the newspaper business.

Mlodecki went on to repeat the allegations contained in previously filed court document that indicate Langdon removedconfidential and proprietary documents before he resigned from his job and informed the company of his intentions to start a newspaper.

Brunswick News's statement of claim allegesLangdon used his access to information as publisher of the Bugle to damage Brunswick News and help establish his own publication, constituting a breach of an employment agreement he had previously signed.

The results of Langdon's actions will cause Brunswick News to "suffer extensive loss and damage," said the statement of claim.

Documents seized on Sept. 27

Court-appointed officials from KPMG Canada conducted a search of Langdon's office, home and vehicle on Sept. 27.

Several documents, including cash-flow breakdowns, advertising rate analysis, income statements, flyer routes and a resume were seized.

"They went through piles of documents, they went through my desk drawers, they went through everything that was on and in the filing cabinet," Langdon told CBC News.

Langdon's affidavit states the seized documents were material he brought home in the evenings for further review while working as publisher and have no valuein starting a new newspaper.

Langdon added he "would gladly have returned" the seized documents if he had been asked to do so.

The use of a civil search warrant is unusual but legal, said John Clifford, a Toronto lawyer specializing in competition law.

"That search warrant has to be authorized by a judge in a court. With that authorization, there is also the responsibility to go back to the court and the judge to report on what was done. So there is court oversight in the process," Clifford said.

The Anton Piller order may have never been used in New Brunswick before, said John Barry, an experienced trial lawyer in the province. Its use is so extraordinary that if Langdon's claim that Irving withheld information while seeking the orderproves true, it could become a major issue in the case, Barry said.

"A very, very heavy onus is on the plaintiff to make a full, full disclosure of all of the issues," he said. "I would say that any judge who grants an Anton Piller expects that the affidavit evidence that is put before the court is totally expansive of all aspects of this case."

A court date has beenset for Oct.19.