Anton Piller Orders: Protect Your Intellectual Property

Bredenkamp IP Blog, Intellectual Property

Anton Piller Orders: Protect Your Intellectual Property

Protecting Your Intellectual Property

An Anton Piller order allows a court to authorise the search of premises and the seizure of evidence without prior notice. The applicant  presents their case to a judge in chambers to obtain the order in secret.

Anton Piller orders are especially useful in intellectual property cases where a competitor may easily misappropriate and use intellectual property, such as copyrighted documents. For example, proving through “normal” legal proceedings that a competitor is using your proprietary information, copyrighted and/or confidential information such as your customer list to contact your clients, your technical drawings, formulae and the like, may be difficult. Anton Piller orders address this challenge by enabling the applicant to conduct a surprise search in an effort to catch the alleged wrongdoer red-handed with the evidence in question, either on their computer or in hardcopy in their office or factory.

Plaintiffs frequently seek Anton Piller orders in cases where they suspect an ex-employee of breaching his restraint of trade including using confidential and/or copyrighted material of the ex-employer or by using retained confidential and/or copyrighted material of the ex-employer (see our upcoming article on starting your own business, restraints of trade and avoiding litigation with your ex-employer).

How Is An Anton Piller Order Executed?

Executing an Anton Piller order is highly invasive and must be done with due care, taking into account the respondent’s right to privacy.  The applicant’s attorney is not permitted to be present during the execution of the search. An independent supervising attorney, along with the sheriff and, in most cases, an IT expert, typically arrive at the premises to be searched early in the morning.  To prevent possible destruction of evidence, all employees of the respondent are ordered into a controlled area, such as a boardroom. Telephones are confiscated and the purpose of the order is explained. The respondent may then contact their own attorney, who may elect to be present during the search.

The independent supervising attorney ensures that the search is conducted strictly in accordance with the Anton Piller court order. They may have their hands full in trying to calm down an emotional respondent who is surprised early in the morning at their house or place of work, and taken over by strangers searching for evidence of an alleged unlawful act.

As the supervising attorney, one must take care to ensure that the IT expert does not access any irrelevant information, especially personal information such as private photographs, bank statements, or the like.  The supervising attorney must explain this to the respondent.  For example, when evidence is found on a computer, a blind copy of the computer’s hard drive is made without conducting further searches at the risk of accessing irrelevant and/or personal information. The copied data is then converted to a searchable format, which can later be searched using the keywords specified in the court order. Such converted data also prevents or limits accidental access to irrelevant information, particularly irrelevant, private information.

What Are The Costs of Protecting Your Intellectual Property with an Anton Piller Order?

Anton Piller orders are initially quite expensive. They may, however, lead to a quicker and more cost-effective resolution of a case if crucial evidence is found, or if no evidence is found and further proceedings are abandoned.

As intellectual property specialists, Bredenkamp Attorneys Inc. have been involved in many Anton Piller proceedings acting as either the applicant’s attorneys, the respondent’s attorneys or as independent supervising attorneys. Contact us for more information.

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