Often cited as the most draconian of civil procedural remedies, the Anton Piller (AP) order is poorly understood by both the public and the litigating bar generally. The recent case of Nac Air, LP v. Wasaya Airways Ltd., 2007 CanLII 51168 (ON S.C.) demonstrates that this lack of appreciation for the underpinning principles of the AP order may also extend to the judiciary.
To be fair to all three sectors named, the AP order, which has been described by the Supreme Court of Canada (SCC) in Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189 as a "private search warrant," is not something one encounters every day. However, if one is on either end of such a drastic order, then it is extremely important to note just what terms, limits and conditions should prevail in the application for, granting of and execution of such an order.
The NAC case is somewhat reminiscent of the Air Canada-WestJet internal website access and garbage pickup dispute. NAC apparently had been required to file fare changes with a federal department, Health Canada. It was alleged that every time it did so, a competitor, Wasaya, immediately countered with its own change. Health Canada denied any leak on its part. NAC proceeded to obtain an AP order in the usual "without notice" way.
The nature of an AP order is that it compels the defendant to consent to a search team entering its premises to effect a review of material so that evidence for a civil suit may be preserved. Failure to consent places the target of the search at risk of contempt of court if the AP order is ignored. The target therefore has a "Hobson's Choice," i.e., a choice between taking the only option offered or not taking it. Needless to say, neither choice is particularly palatable.
The Celanese case provided that four essential conditions must exist for making an AP order:
First, the plaintiff must demonstrate a strong prima facie case. Second, the damage to the plaintiff caused by the defendant's alleged misconduct — potential or actual — must be very serious. Third, there must be convincing evidence that the defendant has in its possession incriminating documents or things. And fourth, it must be shown that there is a real possibility the defendant may destroy such material before the discovery process can do its work.
It is interesting to note that the case from which the AP order originated, Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch. D. 55 (C.A.), provided that there be an extremely strong prima facie case, and this is what the reviewing judge in NAC set as the test. However, that same judge required a probability of risk of destruction of material before discovery, not a real possibility as set out by the SCC.
The SCC helpfully pointed out various protections that should be incorporated in any AP order granted. These include:
- In addition to the search team from the plaintiff's
law firm, an independent outside lawyer should be appointed
to supervise the execution of the order as an officer of the
court. While such a process ideally should be conducted by
independent outside lawyers, in practical terms, such an
outside team would be at a "knowledge" disadvantage
as to what was relevant to the case. An AP order is to be
executed in an efficient and timely way. Thus practicality
dictates that plaintiff's counsel may be involved,
although it might be preferable to have the persons involved
in the search team isolated behind a confidentiality wall
from those who actually continue with the substance of the
proceedings until such time as the documents would otherwise
be ordinarily produced in the discovery process. This is
because the intention of the AP order is to preserve evidence
— not to allow a plaintiff to get a jump on the
defendant in the discovery process.
-
An exception to the prohibition against immediate use of information obtained in the seizure is in the area of counterfeiting or piracy, where it has been found to be appropriate to give a "rolling" AP order vertically to suppliers and customers of the defendant — so as to trace up and down the supply chain those who may be involved in the alleged wrongdoing.
- The scope of the order should be no wider than necessary.
In NAC, 800,000 documents were seized. The reviewing
judge found that some of these should not have been seized,
including the computer records of the wife of the owner of
Wasaya and Wasaya material that pre-dated any alleged
problem. Further, many documents proved irrelevant to the
litigation and contained a great deal of information that
could possibly have given the plaintiff a competitive
advantage over the defendant.
-
However, what is not appreciated in either NAC or Celanese is that if the AP order is to be efficiently executed, then unless a defendant wishes its premises to be tied up for months to do a minute scrutiny review, the reasonable tendency is to over-include. Is this a real problem? Not if one remembers the purpose of an AP order being to preserve evidence. Certainly the plaintiff itself should not have access to the seized material, and it would be desirable that there be an undertaking by searching counsel not to discuss the contents of what was seized with the plaintiff client. Computer records are probably the easiest to deal with as an electronic copy may be made and placed in safekeeping. Copying paper documents would be considerably more time-consuming. The winnowing down of these documents may be facilitated by a discussion between plaintiff's and defendant's counsel.
- The supervising lawyer should ensure that material that
is potentially the subject of solicitor-client privilege is
sealed until this issue can be resolved. This points out the
importance of the search team not discussing what was
searched.
- The AP order should limit the use to which the materials
seized may be put. This again illustrates that the purpose of
an AP order is to preserve evidence — subject to the
rolling exception with respect to counterfeiting and piracy
cases.
- The material seized should be returned to the defendant
as soon as possible. This may be accomplished by a proper
indexing of the seized material, with the index being kept in
safekeeping, and a copy given to defence counsel (or a copy
of the electronic material to that counsel). Defence counsel
and the defendant would know that if the proper discovery
disclosure was not made, this could be checked against the
electronic material or index in safekeeping.
Celanese provided for additional items regarding the execution of the search and subsequent to the search that were not an issue in NAC. These include:
- the normal requirement for the plaintiff to give an
undertaking to pay damages in the event that the AP order
turns out to be wrongfully executed or unwarranted, keeping
in mind the ex parte requirement of full and frank
disclosure includes possible defences, objections or
requirements of the target who is not there on the original
hearing to make these points — but that lack of
disclosure of immaterial points will not diminish an AP order
on review (see Bell ExpressVu Limited Partnership
v. EchoStar Satellite LLC, 2008 Can LII 12837
(ON S.C.) relying on Ontario Realty Corp v. P.
Gabriele & Sons Ltd., [2000] O.J. No. 4341);
- provision of a short wait time to allow the target to
consult counsel;
- a clause to allow the target to return to court on short
notice;
- arrangements for the search to be conducted during normal
business hours;
- provision that the premises not be searched except when a
responsible person of the target is present;
- provision that the search team be limited in number and
identified;
- provision that the order be explained in plain language
before the search begins;
- arrangements for a detailed list of the evidence seized
to be made, and for the supervising solicitor to providing
this list to the defendant for verification before materials
are removed (alternatively, if this is not practicable, the
document should be placed in the custody of the supervising
solicitor and the target's counsel given the reasonable
opportunity to review or make safekeeping arrangements for
disputed ownership materials;
- recognition that the supervising solicitor's
obligations continue beyond the search to all matters arising
out of the search;
- a requirement that the supervising solicitor file a
timely report with the court regarding the execution;
and
- likely a provision for an automatic court review of the
execution on a short, timely basis.
However, it is perhaps troubling that the SCC assumes, without discussion, that the plaintiff will have a direct and immediate access to uncontested material seized subject to the counterfeiting and piracy exception. This ignores that the purpose of an AP order should be to merely preserve evidence.
In NAC, the AP order was voided on review and costs will ensue against the plaintiff. The reviewing judge was impressed by the fact that there was no allegation of intentional destruction of computer records, but rather the concern that these records would deteriorate with overwriting in the normal course (this problem would be solved by the provision of the electronic copy to be preserved). Also there was concern that the plaintiff had not sought the order as early as March 2007, but had waited until November. But why should this matter in the circumstances? One might easily criticize the plaintiff for leaping without looking if it rushed into court.
We have discussed the issue of a real possibility of destruction versus the NAC reviewing judge requiring a probability of destruction. However, it should be noted that in an AP situation, it is necessary to show some element of wrongdoing in the character of the defendant (or its controlling persons). Evidently, the strange coincidence of a contemporaneous change of fares did not provide this implication; something more is needed. As discussed in Ontario Realty Corp., the real possibility of destruction or suppression of records may be supported by some character flaw of wrongdoing of the deceitful nature, not necessarily linked to the case at hand; however, it is not necessary to show a past record of destroying or suppressing evidence or a previous judicial finding of fraud or deceit.
The NAC decision observed that even if the requisite degree of risk of destruction were shown, it would be "unlikely the court could fashion an order to protect from disclosure documents seized that are confidential or subject to solicitor-client privilege, or simply irrelevant to the issues between the parties." However, if the points discussed above were employed, it would seem that that could be achieved. Fortunately, in NAC, the reviewing judge did order all parties "to preserve documents relevant to the issues in this litigation and to produce such documents as may be required in accordance with the Rules of Civil Procedure." One would think that defence counsel and the defendant would be alerted to the necessity to ensure that proper discovery ensued.
The judge in Bell ExpressVu was fairly pragmatic in his review role and did not find that the various fairly inconsequential complaints of the target merited an overturning of the AP order in the particular circumstances of that case. This approach would seem to be the reasonable way of dealing with a review.
The lesson to be learned: it is better to be the applicant for than the target of an AP order — but the applicant must be careful to ensure that it makes full and frank disclosure to the court, that the proposed order provides all the appropriate safeguards, and that the AP order is properly executed. It should also be noted that the Commercial List Users' Committee is working on a model template for AP orders (which may be adjusted, with blacklining to note the changes, to meet the circumstances of the particular case). This template will likely go a long way toward regularizing this sector of the legal "Wild, Wild West."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
