The NMa published new dawn raid guidelines which replace the 2007 guidelines on digital investigations. It is the first time that the NMa has published integral guidelines including its procedure in digital as well as analogue investigations. The European Commission already has an integral explanatory note on digital and analogue investigations.
The new dawn raid guidelines take account of last year’s ruling by the District Court of The Hague against “fishing expeditions” by the NMa during dawn raids by providing the relevant company the opportunity to be present during the examination of those digital copies it claims are outside the scope of the NMa’s investigation.
In addition, the NMa has introduced a “sealed envelope” procedure similar to that known from European case law to further safeguard legally privileged documents during NMa dawn raids. If a company refuses to allow NMa officials to take a cursory look at a document because it considers it to be covered by legal privilege, the NMa inspector will place the document in a sealed envelope without having examined it and hand it to an independent NMa official, the “legal professional privilege officer”. The company subsequently has 10 business days to substantiate its legal privilege claim in writing to the legal professional privilege officer.