Dutch Supreme Court Allows Evidentiary Seizures In All Civil Cases

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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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