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02 September 2014
Evidence is key in civil proceedings, but obtaining it is not always easy. Seizure of evidence, whereby a party has the opportunity to secure documents held by an opposing party, can be helpful in certain situations. Since September 13 2013 it has been possible under specific conditions to seize evidence in all civil cases. Seizure of evidence can take place even before the opposing party is summoned and informed about an impending legal proceeding.
Dutch law contains a specific regime for the seizure of evidence in IP cases. However, until September 2013 it was uncertain whether seizure in other civil proceedings was possible. The Supreme Court clarified this issue by considering that seizure of evidence is also possible in non-IP cases, provided that such seizure occurs only after the court has given permission not to inspect the evidence.
The court may grant permission to a seizure if certain conditions are met. First, the request must comply with the requirements of Dutch discovery (Article 843a Code of Civil Procedure):
Second, the court will judge whether the seizure is necessary. Seizure is allowed only to prevent loss of evidence. Therefore, there must be a reasonable concern that the documents will disappear or be destroyed without attachment, and that the applicant has no other way to obtain these documents. The court will also examine whether the severity of the measure is proportionate to the intended result. On granting permission for the seizure of evidence, the court must ensure that harm to the attachee remains within reasonable limits.
The object of the seizure is preservation of evidence. It provides no legal ground for the inspection or copy of this evidence, as this requires a separate procedure. For that reason, the applicant must not be present when the bailiff seizes the respective objects. Further, the judge can permit the evidence seizure only if confidentiality of the seized objects is guaranteed.
These restrictive conditions must secure the position of the attachee, as judicial permission for the seizure is given without hearing the attachee.
The Supreme Court has ended the discussion about attachment of evidence in non-IP cases. The new measure makes it possible to secure evidence at an early stage during or even before civil proceedings. It is advisable to request this measure if a party in the Netherlands has evidence crucial to proceedings.
For further information on this topic please contact Eelkje van de Kuilen at AKD by telephone (+31 88 253 50 00), fax (+31 88 253 54 00) or email (email@example.com). The AKD website can be accessed at www.akd.nl.
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