A Federal Court of Canada Reminder: Anton Pillar Orders are to be Granted only in Exceptional Circumstances

Recently, Justice Roger Hughes of the Federal Court signaled that in considering whether to grant an extraordinary pre-trial inspection order (Anton Piller Order), such an Order should be granted "only in the most exceptional circumstances". In the case (Netbored Inc v Avery Holdings Inc et al, 2005 FC 1405), the plaintiff Netbored retailed via its web site (e-tailing) a variety of consumer electronic products, and for much of its traffic relied on the relatively high ranking of its web site by Internet search engines. Original material and programming related to its web site was created in part by the defendant Sean Eren who later ended his relationship with Netbored and, together with other defendants, established a competing e-tailing business, Avery Holdings Inc (Avery), also using a web site which was heavily reliant for its traffic on search engine rankings. Netbored commenced an action in the Federal Court of Canada, alleging breach of copyright, misuse of confidential information and breach of contract. Without notice to Avery and the other defendants, Netbored applied, at first unsuccessfully, for an Anton Piller Order in order to gain access to certain materials alleged to be in the possession of the defendants. Four days later, still without notice, Netbored made a further, successful application to a different Justice of the Federal Court who granted the pre-trial search and inspection for materials. In addition, an interim injunction was issued, restraining Avery from infringing copyright and using confidential information. Later, Netbored applied for continuation of the injunction until trial, at which point Justice Hughes re-examined the basis on which the Anton Piller Order and interim injunction had been granted. Based on the lack of convincing evidence before him, he vacated the Anton Piller Order and dismissed the application for the interlocutory injunction. In his reasons, Justice Hughes reiterated the three oft-quoted conditions for the grant of an Anton Piller Order: