A marriage, a divorce, and a tortured business relationship: One IT staffer’s story

What follows is a tech staffer’s story that involves a non-compete agreement, a divorce, and a dying Windows XP computer. In what reads like a dry soap-opera drama, an appeals court ruled that a tech staffer hadn’t stolen company-privileged data from his ex-wife’s company. It also provided a clear example of how working with your spouse can go horribly wrong.

The technician began working for his wife’s company, which rented, sold and serviced ozone generators and generator systems. He provided engineering services, maintained the company’s computers, and he provided technical customer support.

IT manager involved in court drama

In 2006, the pair separated, but the tech continued working at his wife’s company for several years, which, by the way, only had around 15 employees. So there was very little room to hide, and the arrangement went about as well as one can expect when your ex-wife is your president and CEO.

At some point in 2008, the tech signed a non-compete agreement upon which the court case hinged.

Here’s where things start to play out like the plot of a made-for-TV drama. When they were together, the tech had bought two computers that had the Windows XP OS – one for him, and one for his wife. The tech also had backed up the server data onto an external hard drive that he kept at-home, with the company’s permission.

After they divorced, the wife hired an IT manager who would oversee her ex-husband’s projects and report back to her. According to this manager, he had been told, in no uncertain terms, to drive her ex-husband out of the company.

The manager testified on the stand, he had been giving two directives: “One was that [the tech] would report to me, because he had a temper tant—temper issue and was too frustrating for [his ex-wife] to work with, and he seemed to like me. So I would be his boss for day to day and resources issues. The second directive was [his ex-wife] wanted him out of the company, but wanted him to leave of his own volition. So I was given a directive to step up and keep the pressure up until he left of his own terms versus being terminated.”

This, apparently, involved micro-management and the requirement that the tech update his work status every half hour. This went on for several years until, one morning, the manager was persistent in asking about a client account that was being difficult for the tech. Then, when his ex-wife arrived on the scene, she also asked for an update on the client account.

Story should have ended here

The result was that the tech picked up his computer and chucked it into the nearest recycling bin. As if understanding that he’d crossed the line, the tech said to mail him his final check and left work. He was officially terminated that day, and he returned the external hard drive used to backup some 200,000 company files the following day – but kept the computer.

Here is where the story should have ended. The president had gotten what she wanted and the two were finally free from one another, to move on with their personal and work lives.

Remember the non-compete agreement the tech signed? Yeah, it doesn’t end there.

When the tech was looking for new work, he received two job offers that were then withdrawn. When probed for an explanation, the companies reported that they’d been served notices to cease and desist in hiring the tech due to that non-compete agreement.

The tech sued, complaining that the non-compete was vague and couldn’t possibly be used to prevent him from working in the IT-field ever again. His ex-wife’s company then counter-sued, claiming the tech not only had signed a valid non-compete, but that he had also made off with the company’s trade secrets.

Here’s where the XP computer comes into play.

Personal property and public knowledge don’t amount to trade secrets

The tech had assumed the computer was his and had continued to use it after his termination. It contained personal files, such as pictures from his wedding and music playlists. However, since it had been originally purchased using his wife’s credit card account, which was also the corporate company card, the XP machine was company property and had to be returned. The tech did this, alongside the external hard drive, but before doing so lifted those personal files from the computer.

The president believed the personal files were company property, and therefore counted as trade secrets. The court was quick to point out that this was not the case, but the company persisted. It then said it had discovered the tech was using the same program the company did when calculating water valve pressure.

Well, let’s have a look then, the court said, expecting the program to be something developed in-house. Certainly, if it was code written on company-time, the tech shouldn’t be using under the non-compete.

The program? Excel. The prized company equations? Basic math and physics concerning water pressure.

If Excel and physics equations are trade secrets, most of the world is in trouble.

At this point, the court had apparently heard enough. It said that the ex-wife’s attempt to impose legal action on her ex-husband’s actions was misguided. It was important to recognize the context in which these actions arose: a marriage, a divorce, and a tortured business relationship. It is unlikely that the legislators who enacted the alleged law violation anticipated that it would be used as a sword in a marital dispute.

A jury awarded the tech damages and ruled completely in his favor. The jury’s decision was upheld for a second round of scrutiny when the company filed for appeal, with the president still insisting the tech couldn’t keep copies of her wedding pictures.