As discussed in my last blog post, the Supreme Court of Canada articulated the four essential conditions that must be met for granting an Anton Piller order in the landmark Celanese Canada Inc. v. Murray Demolition Corp decision. Recognizing the intrusive nature of the remedy, the Supreme Court also established firm guidelines for the implementation of Anton Piller orders.
These guidelines are meant to afford basic protection of the rights of the parties, particularly solicitor-client privilege which may apply to certain documents. They also reflect the fact that the purpose of an Anton Piller is to prevent evidence from being destroyed, not to enable a “fishing expedition” or allow the plaintiff to gain an advantage in the litigation.
Some of the required elements identified by the Supreme Court to successfully execute an Anton Piller order include the following:
- The scope of the order should be no wider than necessary.
- The order should be carried out during regular business hours by a specified number of persons identified by name, and in the presence of the defendant or a responsible employee of the defendant.
- The plaintiff should provide an undertaking and/or security to pay damages in the event that the order is wrongfully executed.
- No materials should be removed unless pursuant to the order, and any materials seized must be returned as soon as practicable.
- A detailed list of all evidence seized should be made and verified by the defendant.
Central to the Celanese guidelines is the Independent Supervising Lawyer (the ISL), a lawyer appointed by the order who is responsible for the enforcement of the Anton Piller order in accordance with these principles. The role of the ISL is to:
- act as a neutral officer of the court,
- explain the order to the defendant, particularly pending the defendant obtaining its own legal advice
- supervise the search for and seizure of evidence from the defendant,
- protect against the disclosure of apparently privileged materials,
- provide a report to the court detailing the execution of the order including who was present and what evidence was seized; and
- aid the court and counsel for all parties in technical matters.
The ISL is key to the proper execution of an Anton Piller order and the avoidance of costly errors. In my next blog post, I will turn to the importance of proper disclosure.