Without proper evidence one cannot hope to be a successful litigant. In many cases however, the evidence required is in the hands of one’s opponent. One potentially valuable tool that clients may be unfamiliar with, that will aid in obtaining evidence from one’s opponent, is the Anton Piller order.
What is an Anton Piller order?
An Anton Piller order is a court order obtained to allow a party to obtain and preserve evidence from their opponent. The order gives the right to enter and search the opponent’s premises without prior warning, for the purpose of seizing evidence.
Example where an Anton Piller order is required
In order to illustrate the circumstances under which an Anton Piller order can be used, Bredenkamp Attorneys presents the following example:
Jinel has a successful paint and chemical manufacturing company, VERF industries. Jinel employs Karel as a chemical engineer, whose job it is to develop creative and new shades of paint; and paints with innovative textures. One day Karel resigns, and starts up his own paint manufacturing company. There was no restraint of trade in Karel’s contract with VERF industries; meaning that Karel has not yet broken any agreement he had with VERF. However, all new products developed by Karel whilst he was employed with VERF became VERF’s intellectual property, and does not belong to Karel.
Shortly after Karel’s company became operational, Jinel started hearing word that the same innovative paints that she manufactures were becoming available through a different manufacturer in the market. A few clients also informed Jinel that someone at “Karel’s Paint Manufacturers” was offering them the same products that VERF supplied them with. Jinel found this very strange, because Karel, as an engineer, did not work in sales and thus did not know VERF’s clients’ contact information; indicating that he somehow obtained VERF’s confidential information: it’s client list. Although Karel had engineered many of VERF’s products; the formulas were complex and could not be remembered off by heart by Karel; thus implying he had stolen her intellectual property in the form of the paint formulas, too.
Jinel’s suspicion that Karel had somehow stolen VERF’s client list and chemical formulas was also supported by the fact that the clients being contacted by Karel’s company were not immediately revealed as potential customers for a paint manufacturer through Google® searches or telephone directory searches. Jinel searched for evidence in Karel’s old email address and files to see if he had emailed VERF’s client list to himself; or if he had copied the chemical formulas and perhaps sent those to his personal email address. She came up empty handed. However, Jinel has enough information to support her suspicion that Karel stole her company’s client list and is using VERF’s intellectual property unlawfully.
So, whilst Karel opening a new company that is directly in competition with VERF Industries is not unlawful; his actions of using VERF’s confidential information amounts to the delict of unlawful competition. As a result of Karel’s suspected unlawful actions; Jinel wants to try obtain an interdict to stop him from further using her company’s client list and paint formulas. To be successful she would have to show that Karel does in fact have copies of her client list and/or formulas. However, should Karel find out that Jinel is planning on obtaining an interdict, he can delete all evidence that shows he stole the client list and has the paint formulas in his possession, well before the interdict will be granted; leaving Jinel with a weak case against him with no supporting evidence to back up her suspicions.
In this situation, Jinel needs to show that Karel is in possession of VERF’s client list and paint formulas, but needs to obtain the evidence without tipping Karel off in time for him to destroy any evidence. Jinel can therefore apply for an Anton Piller Order, which allows her to conduct a surprise search of Karel’s premises, including his computer system, to search for the client list and the paint formulas. If the client list and/or paint formulas are found; then Jinel will have enough supporting evidence to obtain the interdict (injunction).
Requirements for obtaining an Anton Piller order
If Jinel can convince a court that there is prima face a strong case against Karel (in this case for unlawful competition and the unlawful use of VERF’s intellectual property); that there is a potential of damage; that there is sufficient evidence to indicate that Karel is in possession of the required evidence (the client list and/or paint formulas); and that there is a reasonable apprehension that the evidence can easily be “spirited away”, the court may grant an Anton Piller order.
Execution of the Anton Piller order
Once the order is granted, the manner in which the search and seizure is conducted is of utmost importance. If not done fairly and strictly in accordance with the court order, the whole procedure and order could be set aside. The court order has to appoint an independent supervising attorney to oversee the execution of the order. This attorney should be experienced in these matters to ensure that the order is executed fairly to the benefit of all parties involved. It has happened that these orders are set aside even if the required evidence is found with a respondent. A surprise search of a respondent’s premises is potentially a gross invasion of privacy. This invasion must be limited strictly to what is fair and allowed in the court order.
Considering the risks involved, it is essential to appoint a qualified and impartial attorney to supervise an Anton Piller order. Bredenkamp Attorneys have obtained and opposed various Anton Piller orders on behalf of its clients. Lately, and probably owing to our experience in applying for, or opposing, Anton Piller applications, we have become increasingly involved in the very important task of the supervision of the execution of Anton Piller orders.