The alarming trend of secret court orders
Intended to prevent the destruction of evidence in lawsuits, Anton Piller orders have been called a “nuclear weapon” of civil law.
But as their use increases in Canada, concerns are being raised that these court orders — which are issued in secret — are being used as private search warrants.
Montrealer Adam Lackman didn’t know he was being sued by some of Canada’s largest telecom companies until a group of men showed up at his front door on June 12 at 8 a.m. with an Anton Piller order.
He was questioned until midnight, his home was searched, all the data on his electronic devices were copied and he said he was told that if he didn’t disclose the passwords to his social media accounts and website, he would be charged with contempt of court.
His website — which is at the crux of the legal dispute — was then taken off-line.
Lackman runs a site called TV Addons. It provides access to apps for an open-source media player that can be used to watch a wide variety of online videos.
Some of those apps allowed users to stream video in a way that violated copyrights held by Bell, Rogers, Videotron and TVA, according to the statement of claim filed by those companies and several of their subsidiaries.
Whether it’s illegal to provide access to apps that may allow users to violate copyrights remains an open legal question whose roots go back to the invention of VCR, said Tamir Israel, a staff lawyer at the Canadian internet Policy & Public Interest Clinic at the University of Ottawa’s Faculty of Law.
In the United States, a lawsuit was filed “against Sony and other VCR vendors and the argument was that VCRs are categorically illegal because they were being advertised as a way of recording TV shows, skipping advertisements, that kind of thing,” Israel said.
Search engines and file-sharing sites have faced similar lawsuits, but many grey areas remain.
Even so, the use of an Anton Piller order is concerning, Israel said.
“Do you get to go this far in terms of invasiveness just because you have a legitimate legal question to be resolved?” he said.
While these orders often end up working like private search warrants, that’s not their purpose.
“The point of these orders is not to go on a fishing expedition,” Israel said, “but literally just to preserve something that you have proven may be destroyed.”
That doesn’t always happen. In Lackman’s case, Federal Court Judge B. Richard Bell ruled that questions posed by the plaintiffs’ counsel “constituted a hunt for further evidence, as opposed to the preservation of then existing evidence.”
However, in an appeal of that decision, another judge ruled that Lackman did try to conceal some evidence.
Unlike a search warrant, an Anton Piller order doesn’t allow the plaintiff in a civil case to enter the defendant’s home without permission, said Rosalie Jukier, a law professor at McGill University who teaches civil procedure,
“The defendant must let the seizing party in to the premises, but because the sanction of not letting them in is contempt of court,” Jukier said, “this has been called a distinction without a meaningful difference.”
The orders are also controversial, she said, because the hearings to obtain one take place behind closed doors without the defendant being present.
That’s different from the far majority of court proceedings in Canada.
“For these reasons, Anton Piller orders have been called orders that are at the extremity of court’s powers, exceptional and even draconian,” Jukier said. The use of these orders is increasing, she said.
“One reason for their popularity is their usefulness in the context of seizing electronic evidence for the purpose of its preservation and ultimate use in litigation,” she said.
There are some protections for defendants — there’s a legal test that must be satisfied before a judge will issue an Anton Piller order and the lawyers for the plaintiff are accompanied by a bailiff and a “supervising solicitor,” a lawyer who is supposed to act as an independent officer of the court and ensure that the order is carried out in accordance with the judge’s instructions, Jukier said.
It’s the supervising solicitor, rather than the plaintiffs lawyers, who usually takes possession of the evidence seized.
“When you’re in a private lawsuit, because you don’t have the state powers to go out and do investigations, your entire ability to investigate the person that you’re trying to sue comes through the court process,” Israel said. “Whereas we have all these safeguards that have historically developed against what the state can do, the same safeguards against what can happen when you’re involved in a lawsuit haven’t really evolved as much.”
Lawyers for the plaintiffs in Lackman’s case refused to comment, citing a confidentiality order that covers the supervising solicitor’s report.