On November 23rd, the Ontario Superior Court of Justice set aside an Anton Piller order in favour of a preservation order.
The Court held that the plaintiff had failed to prove a real possibility that the defendant would destroy incriminating documents or things and, alternatively, that the scope and quality of the electronic records seized weighed against the order. There are significant parts to both findings.
On the possibility of destruction finding, the Court rejected the plaintiff’s argument that the impermanent nature of arguably relevant electronic evidence justified the Anton Piller. Although not entirely clear from the award, the plaintiff appears to have argued that records of web-browsing were relevant and that the search was necessary because web pages and IP log files stored in memory and swap files would be subject to loss in the ordinary course. The Court said:
This evidence does not support an allegation of intentional destruction of evidence, to justify the court’s interference. It does not tell the court when evidence may be lost by use of computers in the ordinary course of business. Inadvertent over-writing of files by on-going use of computers could be addressed by a demand to preserve evidence.
The Court was also not impressed with the plaintiff’s execution of the order. For one, it seized a home computer belonging to a personal defendant without authorization. More fundamentally, the Court took issue with scope of the order itself (citing Celanese for the proposition that the scope of the order should be as narrow as possible) and the fact that it enabled the plaintiff to seize virtually all of the defendant’s records. It said:
The scope of documents seized under the order is breathtaking. It includes documents that are personal in nature, such as private e-mails unrelated to the Wasaya workplace, individual banking records, income tax returns, personnel files, patient’s medical records, and other materials that have no relevance whatever to the allegations NAC makes in this litigation. It also includes confidential business records such as financial statements for Wasaya, marketing plans, restructuring plans and other documents bearing on Wasaya’s market position as NAC’s competitor. Documents related to other litigation involving Wasaya, and protected by solicitor-client privilege, were also caught in the net.
In the result, the Court substituted a non-specific order to, “preserve documents relevant to the issues in this litigation and to produce such documents as may be required in accordance with the Rules of Civil Procedure.”
NAC Air, LP v. Wasaya Airways Limited, 2007 CanLII 51168 (Ont. S.C.J.).
All About Information 
Celanese does not require that the party demonstrate that the opponent will intentionally destroy the information. That often is the case, but in this particular situation, the defendant will destroy the information in the ordinary course of business. To preserve the information, the image must be taken immediately. Copies of all the disks imaged should be preserved in this case.
The original AP should have been restricted to computer devices, and it would be reasonable to look at any that would have been connected to the internet and available to the defendants. The order should have required the preservation of the images, but not that they be handed over to the plaintiffs.
As to the delay, the plaintiff clearly waited from March to November to gather sufficient information through its website monitoring to back its allegation.