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Civil Litigation, Commercial Litigation

Preserving electronic evidence with Anton Piller orders is on the rise

Anton Piller orders – once regarded as an extreme measure to be rarely used – have grown in recent years, particularly in intellectual property and trade secret disputes, writes Hamilton commercial litigation lawyer Mark Abradjian in The Lawyers Daily.

Use of the orders, which can be traced back to a case thirty years ago: Bardeau Ltd. v Crown Food Services Equipment Ltd. is also rising in civil and commercial matters, employment litigation and family cases, writes Abradjian, a partner with Ross & McBride LLP.

In his piece, Abradjian attributes their growing application to the advent of computer technology, noting information can now be copied, transferred and erased almost instantaneously, making it easier to engage in the conduct worthy of the granting of an APO.

At the same time, new technology has also contributed to the places where APOs now authorize searches, including private homes, commercial premises, vehicles, post office boxes and storage facilities, he writes.

But, Abradjian warns, a side effect of the increase in APOs and their intrusive nature, is the need to make sure they are issued, executed and supervised in a way to preserve privacy and property rights.

Guidelines established by the Canadian and U.K. courts to ensure those rights are maintained must be followed. Otherwise, an APO can be set aside, seized property returned and damages awarded against the plaintiff.

Abradjian says these orders are obtained on an ex parte basis, allowing one party to search for and preserve evidence that is likely to be destroyed or concealed prior to its discovery, on the premises of another party.

A “powerful” pretrial mechanism named after the 1976 English Court of Appeal decision, Anton Piller KG v. Manufacturing Process Ltd., APOs are usually obtained against the proposed defendant to an action, though they can be served on and bind non-parties as well, says Abradjian.

“The defendant has the opportunity to contest the plaintiff’s conduct in obtaining and executing the order. APOs sometimes include provisions restraining the defendant’s activities in the short term to allow the plaintiff to obtain a long-term or permanent injunction against the defendant,” he writes, adding an APO expires unless extended.

The first few hours of execution are the most critical to the plaintiff, he adds.

To obtain an Anton Piller order, there are four requirements writes Abradjian.

“The plaintiff must demonstrate a strong prima facie case; the damage to the plaintiff of the defendant’s alleged misconduct, potential or actual, must be very serious; there must be convincing evidence that the defendant has in its possession incriminating documents or things; and it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process.”

Abradjian says APO motions must be brought before a judge by a party to a pending or intended proceeding. “APOs are grounded on the inherent jurisdiction of the court and not on any particular rule. However, s. 101 of the Court of Justice Act and Rules 40 and 45 of the Rules of Civil Procedure have particular applicability to APOs,” he says.

“As with any motion for an interlocutory injunction or mandatory order, the moving party must provide an undertaking for damages. Prudent counsel will provide this undertaking expressly, although the courts have implied such an undertaking in some circumstances,” says Abradjian. “A factum should also be served on such motions.”

A model APO has been developed by the Commercial List Users’ Committee of the Ontario Superior Court of Justice,” he says. It can be found on the commercial court website and is an "extremely useful guide for counsel seeking the order," Abradjian adds.

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