In Peninsula Employment v. Castillo, 2025 ONSC 1121, the Superior Court of Justice, in obiter, provided helpful directions as to the obligations of the Independent Supervising Solicitor (“ISS”) under an Anton Piller order to disclose and produce documents.
Background
In an action involving allegations of misappropriation of intellectual property, some of the defendants brought a motion seeking an order staying the action for abuse of process. The moving defendants argued that the plaintiff had failed to make timely disclosure to them of settlement agreements that the plaintiff reached with three other defendants, in which those defendants agreed to cooperate with the plaintiff in advancing its claims.
As well, at the outset of the proceeding, the plaintiff had obtained an Anton Piller order authorizing the seizure of evidence from one of the defendants. The order obliged the ISS to provide the defendant with a list of all evidence seized and to ensure that the defendant had reasonable access to that evidence. The order also permitted the defendant to return to Court for a better report if it believed that the disclosure it had received from the ISS was insufficient.
As a result, the moving defendants also sought an order for further and better production of approximately 1-4 million documents which had been seized under the Anton Piller order, arguing that the documents provided by the ISS were in a format which was inaccessible and did not reveal their metadata. It therefore could not be determined when or where the documents were created, which was an important issue in the action.
The Decision
Ultimately, the Court found that the plaintiff had failed to make timely disclosure of the settlement and stayed the action.
However, in obiter, the Court discussed whether the defendant was entitled to further and better disclosure of the documents which had been seized pursuant to the Anton Piller order. The Court considered this to be an interesting and relatively novel issue.
The moving defendants argued that the disclosure and access to the seized evidence that the ISS had provided to them was insufficient because, instead of indicating which computer files it had under its control, the ISS had merely indicated that it was in possession of computer hard drives. Further, instead of forwarding the files in a native format so that the metadata was readable (a matter which was important since one of the key issues in the proceeding was the origin of the documents), the ISS instead forwarded the files in a format that was unreadable.
The Court held that there is an obligation on the party who seizes documents under an Anton Piller order, or on the ISS with custody of them, to produce them in an ordinary, readable format. The ISS is obligated under the order to complete a detailed record of all documents seized in a format which makes them accessible for the party’s review.
The Court noted that the real dispute was not over whether there was an obligation to disclose and produce the documents. Rather, it was over who should bear the cost of providing a detailed listing, file by file, of the millions of files in the seized hard drive and ensuring that they were transposed into a readable format so that the metadata could be retrieved. The Court noted that this would require specialized software and would be a costly proposition.
Ultimately, the Court concluded that, since the documents were now in the possession of the ISS, it was the plaintiff who had possession, control and custody of the documents, and it was therefore the plaintiff who was required to ensure that the ISS produced those documents at its expense. The Court held that, had it not stayed the action for failure to make timely disclosure of the settlement, it would have ordered the ISS to provide the defendant with a file-by-file list of what was seized. The ISS would have been obligated to provide the defendant with sufficient information or with a format which allowed it to be able to access the documents in a way that would be useful for the litigation, including access to the metadata for those documents, if that was a relevant issue in the action.
The Court also noted that the cost of production was subject to the proportionality principle set out in Rule 1.04(1.1) of the Rules of Civil Procedure. If such a process was costly and required special software and an IT consultant, then that expense could be considered a disbursement to be later factored into a subsequent cost determination in the litigation.
Takeaways
Plaintiffs who seek to obtain an Anton Piller order in cases where a significant number of documents may be seized should take into account the potential costs that they may be required to incur in producing copies of those documents to the defendant from whom they were seized.
About the author
Christopher Wirth is a partner with Keel Cottrelle LLP in Toronto. His practice focuses on Corporate and Commercial Litigation, Class Action Litigation, Administrative law and Employment law.
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