On July 31st the British Columbia Court of Appeal held that a plaintiff who was granted an Anton Piller order based on a material non-disclosure should not be prohibited from using an e-mail obtained in the search.
The plaintiff (who was unrepresented) obtained an ex parte order requiring the defendant to disgorge computer hardware and electronic and physical records related to his claim. At the same time he, was denied an Anton Piller order and granted leave to re-apply if he served a notice of application on the plaintiff the same day. The plaintiff executed the disgorgement order but did not serve the notice. When the defendant did not comply, the plaintiff applied for an Anton Piller order before a different judge and did not disclose service condition imposed by the first judge. He also drafted and entered an order broader than disclosed in the transcript of the proceeding (in that it allowed for both seizure and copying and not just seizure).
Although the Court acknowledged the high standard on a party seeking an Anton Piller and noted that the plaintiff deliberately mis-drafted the order, it held that enjoining use of the e-mail would do too great an injustice to the plaintiff. In balancing interests, it relied on (1) the fact that the motion to discharge the search order that was under appeal was brought over a year after the search, (2) that the defendant did not have clean hands in that the search was ordered after his failure to comply with the disgorgement order (in which the e-mail ought to have been produced) and (3) that the e-mail was central to the dispute. The Court also held that the chambers judge erred in excluding a single e-mail because of its relevance to the dispute.