Lawyers specialized in evidentiary seizures
A Preservation Order for a seizure of evidence – securing evidence
Levying evidentiary seizures
In civil proceedings, evidence can be obtained in various ways. Before proceedings are brought before a judge, evidence can be obtained by seizing evidence, such as documents. Seizure of evidence can be a very effective means of gathering evidence and thus getting a claim proven. Evidence can be used in both IP cases and non-IP cases (ordinary civil proceedings). The seizure of evidence in case of violation of a non-disclosure or competition clause can also be very effective in employment law practice. An evidentiary seizure prevents evidence from being embezzled during a legal procedure.
After a request for an evidentiary seizure has been granted by the judge, a bailiff will seize and, if necessary, take the evidence into judicial custody. The judgment creditor will then have to take legal action for a copy of the seized documents in order to actually be able to inspect the seized documents.
When is a Preservation Order for a seizure of evidence granted?
A number of conditions apply to the allocation of a request for levying evidentiary seizures. These are stated in Article 843a of the Dutch Civil Code of Legal Procedure (Rv).
That article stipulates that (i) the documents must be sufficiently determined in the request for evidentiary seizure; (ii) the applicant must have a legitimate interest in the delivery of the documents; and (iii) the documents must relate to a legal relationship to which the applicant (attaching party) is also a party.
These requirements are explained in more detail below.
When is a request for evidentiary seizure sufficiently determined?
The requirement that the documents to be seized must be “sufficiently determined” serves to counter “fishing expeditions”. For example, when a seizure request asks for “all correspondence,” that request is generally rejected. It is therefore important to include as much evidence as possible in the request for seizure. That is not always easy because often you do not know exactly which evidence will be available. After all, if you know exactly which pieces of evidence there are, an attachment of evidence would not be necessary. You need proof to substantiate the claim further. This is one of the reasons why the Supreme Court determined in 2013 that if the applicant is not familiar with the evidence, a precise delineation of the subject by describing the file and mentioning the companies/persons involved in the evidence would also suffice.
What is a legitimate interest in seizure of evidence?
Legitimate interest in the seizure of evidence means that the documents seized will actually serve as evidence. A legitimate interest in the seizure of evidence is in principle present if the documents serve to substantiate a claim that is not likely to prevail. Consider, for example, the legal action “tort”.
What is a sufficient legal relationship in order levy evidentiary seizure?
It is not required that the applicant (judgment creditor) is party to a certain agreement. Nor does the applicant have to be a party to the supporting documents he requests. A certain degree of involvement in the documents is often sufficient. This requirement can therefore be met quickly.
When is a request for an evidentiary seizure dismissed?
Even if the above requirements are met, the court can reject a request for the seizure of evidence. This may be the case, for example, if the principle of the protection of confidentiality obstructs the disclosure of the documents. Moreover, seizure of evidence is often seen as a so-called “ultimum remedium”. This means that when other less significant remedies are available to obtain the evidence, those other remedies should be chosen. This could include holding a preliminary witness examination.
Evidentiary seizure under the Dutch state
In mid-2019, an injunction for interim relief was filed against the Dutch State, in which the state demanded the seizure of evidence to be lifted. The state argued that the seizure of evidence could not be applied to the state because the state has a strict confidentiality obligation and that this prevents the allocation of Article 843a DCCP.
The preliminary relief judge has made short shrift of that. As is the case with any party, an seizure of evidence can also be made under the Dutch state if the legal requirements for seizure of evidence are met. This is ground-breaking and can offer possibilities in proceedings against the State.
Lawyer specialized in evidentiary seizure
In order to prevent evidence from being embezzled during legal proceedings, evidence may be seized by lawyers. In the event that a request for the seizure of evidence is granted by the judge, the evidence has already been secured (at least in the hands of a bailiff) and this may improve the chances of the attachment being brought to trial.