Anton Piller

							                       Anton Piller Orders
                             Anton Piller Order
   Ex parte order made to preserve evidence prior to trial
   Used in practice
     1) to preserve evidence
     2) to seize pirated material

                        “Not” a Search Warrant
   Let me say at once that no court in this land has any power to issue a search
    warrant to enter a man's house so as to see if there are papers or documents there
    which are of an incriminating nature, whether libels or infringements of copyright
    or anything else of the kind. No constable or bailiff can knock at the door and
    demand entry so as to inspect papers or documents. The householder can shut the
    door in his face and say, 'Get out'.
       Anton Piller
                        “Not” a Search Warrant
   But the order sought in this case is not a search warrant. It does not
    authorise the plaintiffs' solicitors or anyone else to enter the defendants'
    premises against their will.It does not authorise the breaking down of any
    doors, nor the slipping in by a back door, nor getting in by an open door
    or window. It only authorises entry and inspection by the permission of
    the defendants.
       Anton Piller
                        “Not” a Search Warrant
   The plaintiffs must get the defendants' permission. But it does do this:
    it brings pressure on the defendants to give permission. It does more.
    It actually orders them to give permission -- with, I suppose, the result
    that if they do not give permission, they are guilty of contempt of court
       Anton Piller
                           Obtaining the Order
    First, the plaintiff must demonstrate a strong prima facie case.
     Higher than general interlocutory standard
     Often stated as “extremely strong prima facie case”
   Second, the damage to the plaintiff of the defendant's alleged
    misconduct, potential or actual, must be very serious.
                                 Obtaining the Order
   Third, there must be convincing evidence that the defendant has in its
    possession incriminating documents or things, and
   fourthly it must be shown that there is a real possibility that the
    defendant may destroy such material before the discovery process can do
    its work:
       These are often run together as a single third factor
                     Proof of Likelihood of Destruction
   The third condition, likelihood that an infringer will dispose of important evidence,
    is normally the crucial element of proof required to obtain an Anton Piller order.
    As it is difficult to prove with tangible evidence that an infringer will dispose of
    important evidence, applicants have focused on the dishonest character of the
    infringer and the easily disposable nature of the infringing articles to invite the
    Court to draw an inference that evidence will disappear if notice is given.
       Adobe Systems Inc. v. KLJ Computer Solutions Inc., [1999] 3 F.C. 621 (T.D.)
                     Proof of Likelihood of Destruction
   The Court has been prepared to draw such an inference in cases
    involving vendors of counterfeit goods in situations such as flea markets,
    street stalls or concerts, given the temporary nature of their business.
       Adobe Systems Inc. v. KLJ Computer Solutions Inc., [1999] 3 F.C. 621 (T.D.)
                     Proof of Likelihood of Destruction
   Risk of destruction may also be inferred from the nature of the evidence,
    esp. computer records.
                              Procedural Safeguards
   The order should appoint a supervising solicitor who is independent of
    the plaintiff or its solicitors and is to be present at the search to ensure its
    integrity.
   Initial practice was that supervising solicitor was counsel for the plaintiff,
    nominally acting as officer of the court
   Very onerous on solicitor

                              Procedural Safeguards
   Absent unusual circumstances the plaintiff should be required to provide
    an undertaking and/or security to pay damages in the event that the
    order turns out to be unwarranted or wrongfully executed.
   Wrongful execution may itself amount to contempt
   Often sanctioned by costs

                      Procedural Safeguards
   The supervising solicitor should be required to file a report with the
    court within a set time limit describing the execution, who was present
    and what was seized.
   It is now common to videotape the search in order to provide evidence
    in case of dispute as to whether it was properly executed
                      Procedural Safeguards
   The motions judge necessarily reposes faith in the candour and complete
    disclosure of the affiants, and as much or more so on the professional
    responsibility of the lawyers participating in carrying out its terms.