January 2nd, 2013
In my last blog post, I discussed Mareva orders. Now I'd like to turn to an extraordinary remedy sometimes sought in conjunction with Mareva injunctions: the Anton Piller order.
Frequently cited as the most severe of all procedural remedies, an Anton Piller order is an exceptional ex parte remedy which essentially amounts to a civil search warrant. Granted by the court where there is a risk that evidence would be concealed or destroyed by the defendant, an Anton Piller order empowers the plaintiff to attend at the defendant's location (accompanied by an officer of the court called an Independent Supervising Lawyer) without warning and to demand access to, search for and seize evidence. A defendant may face contempt proceedings if it refuses entry or fails to assist with the search.
Anton Piller orders have been increasingly sought by plaintiff's counsel due to the relative ease of destruction or movement of data in the electronic age.
In Celanese Canada Inc. v. Murray Demolition Corp, the Supreme Court of Canada held that applications for Anton Piller orders must be considered in light of their exceptional and highly intrusive nature. The court outlined four essential conditions that must be met for granting an Anton Piller order. In order to obtain this powerful remedy, a plaintiff must satisfy the court that:
- the plaintiff has a strong prima facie case;
- the defendant's alleged misconduct is very serious;
- there is clear and convincing evidence that the defendant has incriminating documents in his possession; and
- there is a real possibility that the defendant may destroy the incriminating documents.
These conditions reflect the fact that Anton Piller orders are meant to preserve evidence, not to enable a pre-action “fishing expedition" to determine if a cause of action exists.
Emphasizing that Anton Piller orders are meant to protect evidence from being destroyed, not to gain litigious advantage, the court in Celanese established guidelines for enforcement of such orders so as to prevent the release of documents covered by solicitor-client privilege. I will discuss these guidelines further in my next post.
Orders comparable to Anton Piller orders have long been available in the United States under section 503(a) of the Copyright Act (17 U.S.C, § 503(a)), which provides for the impounding of allegedly infringing copies of works and equipment for making them.