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    Inside Views
    Inside Views: Dutch Supreme Court Allows Evidentiary Seizures In All Civil Cases

    Published on 5 June 2014 @ 9:45 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    By Manon H.R.N.Y. Cordewener & Sanne H. Bouwers

    1. Introduction
    In civil litigation, obtaining the necessary evidence to substantiate a claim can be rather challenging. This can be particularly problematic if the required evidence is in the possession of the opposing party or even a third party. In the Netherlands, this problem is strengthened by the fact that the concept of US style discovery or UK style disclosure does not exist. Levying evidentiary seizures could therefore be a powerful tool.

    Since 2007, there is a statutory provision for evidentiary seizures in intellectual property (IP) cases (Section 1019b-d of the Dutch Code of Civil Procedure (DCCP)). After the introduction of this provision, different opinions were observed in legal literature and lower case law on the question whether – in view of the absence of a statutory provision – levying an evidentiary seizure would also be possible in civil cases which did not relate to IP. In a recent landmark decision, the Dutch Supreme Court (Supreme Court) has removed all doubts and answered the question in the positive.[1]

    2. Procedural requirements
    The seizure of evidence requires the formal leave of the Provisions Judge of the District Court in whose district the evidence is located. This formal leave has to be requested by an application filed by the applicant’s attorney in which – at least – the claim of the applicant and the evidence to be seized must be stated in detail. The leave may only be rendered if the applicant proves or at least gives prima facie evidence that there is reasonable fear of embezzlement of the evidence by the opposing party. The leave will normally be granted in an ex-parte proceeding, meaning that – in principle – the debtor will not be heard or notified before the leave is granted to ensure the element of surprise.

    If the leave is granted, in order to find and seize the evidence, a bailiff (possibly assisted by experts) can enter the premises of the opposing party or even a third party since the Supreme Court considered that an evidentiary seizure may also be levied under third parties.

    3. General requirements
    The Supreme Court considered that Sections 843a and 730 DCCP form the legal basis for allowing evidentiary seizures in civil cases.[2] Section 843a DCCP does not mention the possibility of an evidentiary seizure, but it is a provision that allows a party to claim in court proceedings that the opposing (or third) party must provide it with certain specific documents. In order for an evidentiary seizure to be permitted, the following three requirements must be met.

    (i) The seizure must concern specific documents
    The documents that the applicant is seeking to seize need to be sufficiently specified in the application in order to prevent that the seizure of evidence would result in a fishing expedition. The documents can either be written documents, such as private instruments and bank statements, but also on a data carrier affixed information, such as photo, film, sound and computer files may be seized.

    The extents to which the documents need to be specified differ in each individual case. Previous decisions have shown that the existence of the documents should be sufficiently evidenced. It is not required that the applicant knows the precise contents of the requested documents, although the applicant should be able to explain why the documents in question are expected to be relevant to the (risen) dispute.

    (ii) The documents must be relevant to a legal relationship
    The documents must relate to a legal relationship to which the applicant is a party or to which its legal predecessor was a party. Legal relationships can be a legal relationship arising out of unlawful act, breach of contract, misappropriation of trade secrets, etc.

    (iii) The party levying the seizure must have a legitimate interest in these documents
    The applicant must have a direct and specific interest in seizing the documents. A legitimate interest exists when there is interest to prove certain facts in case the documents can (likely) contribute to substantiating or proving arguments or facts that are relevant to the claim. The evidence does not have to be of overriding importance but has to be relevant to the legal position of the claimant. Obtaining documents in order to determine (the existence of) a legal status can constitute a legitimate interest too.

    4. No automatic right to inspection
    Note that the seizure of evidence does not provide the seizing party a right to also directly view such documents. Access to the seized evidence will have to be claimed in a follow-up procedure (which can be the procedure on the dispute). In order to be granted the right to inspect the seized documents in the follow-up procedure, the same requirements referred to above for the seizure of the documents have to be met. Considering that the follow-up procedure takes place on an inter parte basis, the opposing party will be heard, which means it can advance a defence against the right to inspect the documents.

    The application of Article 843a DCCP can be restricted on the grounds of:

    (a)       Secrecy

    A party that, because of its duties, profession, or occupation, is bound by secrecy cannot be forced to comply with the demand if the documents are solely at its disposal or in its possession on that account. Bearers of those duties are inter alia lawyers, civil law notaries and medical experts. Registered accountants and tax advisors are not entitled to privilege in respect of information discussed with their clients. This exception is however not absolute. Should there be a statutory obligation to observe secrecy, an order for inspection can nevertheless be granted if the interests of the claimant in inspection outweigh the interest in observing secrecy.[3]

    (b)       Serious cause

    The confidentiality of the information may be a compelling reason to refuse the request. Examples of serious causes are confidential information concerning sexual orientation, medical status or financial situation or confidential company information. It should be noted that this exception is also not absolute and that the Court can decide to take measures to protect the confidentiality (for example by imposing an obligation of confidentiality on the parties or by giving the information to an independent expert that can examine the information in view of the dispute).

    (c)       The proper administration of justice is guaranteed even without providing the requested documents

    The obligation to produce exhibits sometimes cannot be invoked if there are other (less compelling) ways to obtain evidence.

    5. Seizure of documents in “the cloud”
    The Supreme Court considered that an evidentiary seizure may even be levied under third parties and that the documents to be seized may include documents which are stored “in the cloud”. If during the seizure there is a reasonable ground to assume that the documents specified in the application are in fact stored in the cloud, the opposing (or third) party even has the obligation to cooperate to make this evidence accessible to the bailiff by providing him with usernames and passwords. If the opposing (or third) party fails to cooperate, the Court can subsequently in the main proceedings draw such conclusions it deems advisable.

    6. Securing evidence in the Netherlands for litigation abroad
    In a previous decision, the Supreme Court had decided that Section 843a DCCP may be relied on in order to obtain documents to be (solely) used in proceedings abroad.[4]As the Supreme Court has now ruled that this Section also constitutes a legal basis for evidentiary seizures, it may be inferred that seizure of evidence located in the Netherlands may also be used to obtain evidence in order to substantiate a claim that is or will be subject to litigation before a foreign court or arbitral institute.[5] Litigation may include arbitration, litigation on the merits of a claim, interim injunction proceedings and possibly also mediation.

    7. Conclusion
    Evidentiary seizures have shown to be a powerful tool for strengthening a party’s legal position. As a result of the decision of the Supreme Court, these possibilities for obtaining evidence are now available in any type of civil matter. The decision puts an end to the existing uncertainty surrounding conservatory seizures of evidence in non-intellectual property right cases. As many international companies have local branches in the Netherlands and given the role of the Netherlands as an important location in the transit of goods, these developments are likely to impact many companies doing business in the Netherlands and provide possibilities for obtaining evidence for civil law disputes to be litigated in other countries if these disputes have some relation to the Netherlands.


    Manon H.R.N.Y. Cordewener is a partner in the Litigation Practice of Hogan Lovells’ Amsterdam office. She specializes in corporate law, property law, and business restructuring and insolvency.

    Sanne H. Bouwers is an associate in the Litigation Practice of Hogan Lovells’ Amsterdam office. She deals with all aspects of contract law and litigation, but specializes in commercial and anti-trust litigation.

     

    [1]               Dutch Supreme Court 13 September 2013, ECLI:NL:PHR:2013:BZ9958.

    [2]               In IP cases, Section 1019 b-d DCCP are however still applicable.

    [3]               Dutch Supreme Court 11 July 2008, NJ 2009/451.

    [4]               Dutch Supreme Court 8 June 2012, ECLI:NL:HR:2012:BV8510.

    [5]               Evidentiary seizures for use in litigation before a foreign court have already been allowed in IP cases. See Court of Appeal of Amsterdam 24 April 2012, ECLI:NL:GHAMS:2012:BW4100.
     

     


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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