Date: 2007-11-23 Docket: CV-07-0464 H.M. Pierce J. | Link

Plaintiff alleges defendants accessed its confidential website to obtain information about rates, having formed that opinion after several months of monitoring access to its website and patterns of rate changes. (para 6) Plaintiff was granted an Anton Piller order to seize computer files and other documents, but during execution seized images of a computer that was not included in the order. Defendants moved to have the AP order set aside, arguing that the plaintiffs did not prove that there was a real possibility the defendants would destroy the information. Court focused on whether there was a possibility of intentional (italics in the decision) destruction, choosing not to accept plaintiffs' argument that the destruction of "evidence of browser sessions including IP addresses" would happen during everyday use of the computer, whether intentional or otherwise. Court also questioned urgency, since plaintiff waited from March to November before seeking the order, although plaintiff had explained that it was monitoring access to the website to confirm its suspicions. Court "concluded that the plaintiffs have not demonstrated on a balance of probabilities that there is a real possibility that the defendants may destroy such material before discovery." The Court ordered the return of the material seized and substituted a non-specific order to "preserve documents relevant to issues in the litigation". (para 36)