On 13 September 2009, the Dutch Supreme Court rendered an interesting decision on the potential scope of seizure of evidence (Supreme Court, 13-09-2013 ECLI:NL:PHR:2013:BZ9958). The decision was rendered as a preliminary ruling (prejudiceele vraag) in a provisional relief procedure (kort geding). In that procedure, the provisional relief court requested the Supreme Court to respond to certain queries on seizure of evidence.
Under the Dutch Code of Civil Procedure (“CCP”), a party who has a legitimate interest as per clause 843a CCP may claim copies of documents, if that party would be unreasonably burdened or if its counterparty would unreasonably benefit from a certain document that would not become available in the legal procedure. The documents must be specified – fishing expeditions are not allowed.
In case of IP infringements (art.1019b lid 1 jo. art. 1019c lid 1 CCP), a party may seize documents as a precautionary measure to avoid the possibility of having such documents being embezzled. In such case, a party should file a petition with the court to request permission to seize such evidence. If the permission is awarded (“Permission”), the applicant may subsequently instruct a bailiff to seize the specified documents. Note that the seizure of evidence will not provide the person seizing the documents a right to directly view such documents. The documents will be kept by the bailiff (or the person who sequestered the documents), until the court in the main proceedings has decided on the applicability of 843a CPP. In case of a positive decision, a right of inspection of the documents is subsequently awarded.
In practice, the seizure of evidence has been applied to cases beyond the realm of IP infringements. Now, the Supreme Court responds directly to the permissibility of such. In line with the current practice, the Supreme Court has determined that articles 730 and 843a CCP provide sufficient basis to allow for seizure of evidence even beyond the realm of IP infringements. As such, a party may, in any dispute as a precautionary measure, seize “documents” including digital files or copies thereof (though subject to the conditions of 843a CCP). As mentioned above, the seizure of such documents does not automatically provide a right of inspection.
Further, the Supreme Court also provided further detail on the duty of cooperation by the party whose evidence is being seized. A duty of cooperation does not apply if during the seizure, encrypted materials are found: then the bailiff can simply seize the data carrier on which the encrypted data is stored (if sufficient basis is present to suspect that the data is covered by the Permission). However, if it appears that the documents are not stored in any data carrier belonging to the party whose evidence is being seized – e.g. when these are stored in the cloud – then said party must provide the bailiff access to such documents (to the extent that such documents are covered by the Permission).
In all, this decision expands the possibilities of the seizure of evidence in civil proceedings.