Fortescue conducted extraordinary privacy invasion, rival’s lawyers tells court

Fortescue seized a large amount of personal data from former employees connected with a rival company, despite still supplying it with iron ore to test its technology, a court has heard.

Fortescue executive chairman Andrew Forrest. Picture: Martin Ollman

Fortescue seized personal banking details of former employees who were the subject of raids conducted by the mining giant – as well as the entire business records of rival green iron start-up Element Zero – claims in the Federal Court show.

The “extraordinary” orders won by Fortescue’s lawyers include details of private negotiations between Element Zero and other Fortescue rivals, as well as personal information of its staff, potentially including personal banking passwords and private communications between the former Fortescue staff and their families.

Documents released by the Federal Court on Friday show that, despite Fortescue’s allegations its former staff stole its intellectual property, the iron ore giant was last year selling its would-be rival iron ore to help it test its own technology, and had agreed to protocols for the exchange of information about how well it worked using Fortescue ore.

The latest revelations come after Fortescue executive chairman Andrew Forrest said he did not know his company paid private investigators to follow the wives of his ex-staff Bart Kolodziejczyk and Bjorn Winther-Jensen into Kmart, take pictures of their children and rummage through mail before court sanctioned raids were launched on their homes and offices.

Bart Kolodziejczyk.

Michael Masterman.

Fortescue won court orders to carry out raids in May after it was alleged Element Zero’s Dr Kolodziejczyk, Dr Winther-Jensen and Michael Masterman stole Fortescue’s CO2-free green iron technology secrets when they all quit a number of years ago.

Despite elements of the court case being suppressed from publication, fresh documents released on Friday revealed Element Zero’s concern that an “extraordinarily large volume” of electronic material belonging to its young business – more than three terabytes – was seized during the searches.

Gilbert & Tobin lawyer Michael Williams, for Element Zero, said virtually the entirety of Element Zero’s documents and emails were seized in the raids, “together with highly confidential and privileged material” that it was “entirely unrelated to Fortescue’s pleaded claim”.

The entire contents of Dr Kolodziejczyk’s mobile was downloaded, including photos and videos, and about 3TB of data was captured, which Mr Williams said was “an extremely large volume of material” to be caught under Anton Piller search orders, in his experience.

Further, he said there were grounds for the search orders to be scrapped based on “the apparent extraordinary invasion of the privacy of the respondents”.

“I am informed by Mr Masterman and believe that, as a result of how the search orders are drafted and executed they will have captured a very large amount of information that is confidential, privileged, and not likely to be relevant to these proceedings,” Mr Williams said.

“The search orders will have captured material that is … highly confidential to third parties including competitors of Fortescue,” he said.

As well, Mr William said he believed images taken of Dr Kolodziejczyk’s phone would have captured data including passwords for online banking and superannuation.

According to a summary Fortescue’s arguments, staff within the iron ore giant started became suspicious about the activities of the three men after they realised Mr Masterman was working with Dr Kolodziejczyk and Dr Winther-Jensen in September, that they incorporated Element Zero which was “potentially developing technology that is similar to technology … developed for Fortescue” and that Element Zero was “seeking the supply of iron ore samples from Fortescue to help test (Element Zero’s) technology”.

A media story was published on January 17 raised the initial concerns.

“The AFR article set in train a line of enquiry at Fortescue, which involved reviewing the projects that Dr Kolodziejczyk and Dr Winther-Jensen had been working on, and investigating their Fortescue email inboxes, group SharePoint folder and two laptops on suspicion of IP leakage,” the summary read.

But Mr Williams appeared to explain these concerns.

After Dr Kolodziejczyk resigned in October 2021, he attended a meeting with Fortescue’s head of Green Energy, Jim Herring, Fortescue’s chief legal counsel, Emily Ward, HR manager Kara Vague and IP manager Mathew Roper when he was told he could not work at Fortescue’s office to finish his notice period.

Dr Kolodziejczyk was told he could “make copies and use documents he needed” to wrap up and that he should delete “everything” saved locally on his Fortescue laptop before he returned it because the company had copies on SharePoint.

He continued to work on patent applications for Fortescue until he left the company, court documents said.

Regarding iron ore samples being supplied to Mr Masterman, Element Zero and Fortescue “entered into an arrangement in May 2023 under which Fortescue provided Element Zero with iron ore samples for testing,” Mr Williams’ affidavit said.

“The arrangement was mutually beneficial as it enabled Element Zero to test its technology on commercially available iron ore, and it provided Fortescue with information about the results from using Element Zero’s process on the iron and allow a technical discussion.”