Picture the following situation: it is a normal workday, when suddenly, a large group of people enter onto your premises. Many of them are wearing uniforms of the Sheriff’s Office. They are headed by a lawyer who claims he has an order from the Court that allows his party to search your premises and copy and/or remove whichever 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 more 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.
This brief article sets out the uses to which an Anton Piller order can be put, the means by which they can be acquired, and how to respond if you are served with one.
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 through a Court-sanctioned entry onto another 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:
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 it adopted the same test as in the Anton Piller case.
It is usually a safe assumption that when an Applicant is contemplating seeking an Anton Piller order it will be able to establish a strong prima facie case and that there will be “very serious” consequences to the Applicant if the information is destroyed. Accordingly, the key issue is usually whether the proposed Respondent 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 Respondent, since to do so otherwise would be to give them warning and allow them to destroy the evidence in question. This means that Respondents usually have no idea what is coming until the order is actually served upon them and executed.
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 terms of 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 or executed.
If, as an employer, you suspect that a departing employee has taken confidential and/or proprietary information, you may wish to consider applying for such an order. If you do so, it will be important for you to be able to identify, with as much particularity as possible, where your former employee and/or his current employer likely has the documents. Moreover, it will be crucial for you to seek legal advice as soon as possible in order to prepare for a quick turnaround.
If you find yourself in the position of being served with an Anton Piller order, the following steps are in order:
In conclusion, an Anton Piller order, while rare, is something that any employer could find itself facing one day. In a time when many employers possess substantial volumes of documentation and electronic records, it is important to be aware of the possibility of an Anton Piller order as well as the obligations and rights that flow from such an order.
Inquiries may be directed to:
New Brunswick – Trisha Gallant at 506.462.4764
Newfoundland & Labrador – Chris Peddigrew at 709.570.5338
Nova Scotia – Tom Groves at 902.491.4104
Prince Edward Island – Alanna Taylor at 902.629.3921
This Cox & Palmer publication is intended to provide information of a general nature only and not legal advice.
Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.
