Picture the following situation: it’s a normal workday, when suddenly, a large group of people enter your premises. Many of them are wearing uniforms of the Sheriff’s Office. They are led by a lawyer who claims he has an order from the court that allows his party to search your premises and copy and remove any documents they wish. The order from the court he presents to you appears legitimate.
What do you do?
The above scenario describes what will likely happen should your company or workplace be served with an Anton Piller order, also known as an evidence preservation order or a civil search warrant.
As the economy becomes increasingly knowledge-based rather than manufacturing-based, the value attached to trade secrets, confidential information and inside processes becomes ever more valuable.
Further, as this information is often stored electronically and thus is more easily destroyed, the importance of securing such documentation in advance of any litigation becomes more and more important.
Accordingly, the Anton Piller order, the civil equivalent of a search warrant, has become more prominent.
Anton Piller orders exist primarily to preserve evidence. As such, they are also commonly referred to as evidence preservation orders. The means by which they preserve evidence is court-sanctioned entry onto a person or company’s property in order to search for and copy or remove such evidence. It is an extraordinary power, rarely ordered and expensive to obtain.
The name Anton Piller order derives from an English case, Anton Piller KG v. Manufacturing Processes Limited. In that case, the court set out three essential preconditions for the making of such an order:
- A strong prima facie case
- Potential or actual damage that is “very serious” for the applicant seeking the order
- Clear evidence that the defendants (i.e., the people who will be subject to the order) have in their possession incriminating documents or things and there is a real possibility that they may destroy such material
The Supreme Court of Canada confirmed that such orders may be granted in Canada in the case of Celeanese Canada Incorporated v. Murray Demolition Corporation where the Court adopted the same test as in the Anton Piller case.
It is usually a safe assumption that where plaintiffs are contemplating an Anton Piller order, they will be able to establish a strong prima facie case and that there would be serious consequences to the plaintiff if the information is destroyed. Accordingly, the key issue is usually whether the proposed defendant does in fact have incriminating or relevant documentation in its possession and if there is a significant chance that such documentation may be destroyed.
Anton Piller orders are granted without notice to the proposed defendant, since to do otherwise would be to give them warning and time to destroy the evidence in question. This means that defendants usually have no idea what is coming until the order is actually executed upon them.
When a party is served with an Anton Piller order, it must comply with it or face contempt of court charges. However, courts are also very strict in how such orders are executed. An order that is improperly executed may leave the applicant liable for damages or a declaration that the order was improperly granted.
If you find yourself in the position of being served with an Anton Piller order, the following steps are in order:
- Contact your own solicitors immediately.
- Ensure that there is an Officer of the Court appointed to oversee the order and that this Officer of the Court is not representing the applicant’s interests. It should be an independent solicitor or similar.
- Examine the order closely to determine the limits that have been placed upon the applicant’s ability to search, remove and copy materials. Often such orders will be limited in scope to certain areas of the premises or to certain documents. The applicant is not usually given carte blanche to remove or copy all documents on the premises.
- Similarly, the applicant may not be entitled to enter into certain areas of the premises or may be entitled only to copy, not remove, certain documentation.
- There should be a date for a rehearing of the matter so that the party being searched may present arguments to the court regarding the manner in which the order was granted and the search conducted. The order should contain a provision for that eventuality.
- The order should also be accompanied by a Statement of Claim.
- Finally, the supervising solicitor should provide a clear explanation of the obligations and limitations of the order.
In conclusion, Anton Piller orders, while rare, do represent a set of circumstances that any employer could find themselves in.
Andrew D. Taillon
Cox & Palmer