BASE Advocaten - The Litigation Firm

Conservatory seizure of evidence under Dutch law – a brief introduction

Nieuws 15 March 2018
Aim and legal ground
What if your counterparty is in possession of documents that may support your legal position or claim and you fear that the documents will be embezzled or destroyed? Under Dutch law conservatory seizure of evidence provides for an effective instrument to make sure evidence is conserved prior to litigation in order to prevent the counterparty from embezzling or destroying (potentially) relevant documents or data. According to this ruling of the Supreme Court of the Netherlands (Hoge Raad) article 843 in conjunction with article 730 of the Dutch Civil Procedure Code (''DCPC'') forms the legal basis for conservatory seizure of evidence in civil cases not related to intellectual property.

Article 843a section 1 DCPC provides the following:

“He who has a legitimate interest may claim at his expense, insight, copy, or extract of certain documents relating to a legal relationship to which he or his legal predecessors are party, of the person who has the respective documents in his possession, at his disposal or in his custody. Among the documents are understood: data provided on a data carrier.”

Article 730 DCPC stipulates the following:

Everyone who has the right to claim surrender of a moveable property or delivery of a good or who can obtain such right through a court ruling to the effect of annulment of rescission, can levy conservatory attachment on such property or good in order to conserve such right.”

Three main steps: petition, execution, surrender
How does it work in practice? Simply put, conservatory seizure of evidence under Dutch civil (procedure) law requires the following main steps:

Step 1: obtaining a leave for the seizure
No conservatory attachment may be made in the Netherlands without the prior permission of a competent judge. Submitting a petition to the court asking for an ex parte court leave to levy conservatory attachments on certain documents and to have these documents be given in judicial custody would therefore be the first step towards conservatory seizure of evidence in the Netherlands. The content of the petition for attachment is essential to a successful conservatory seizure of evidence whereas the petition must give the court sufficient comfort to grant permission for deploying such a far-reaching instrument. Article 843a DCPC as described above, forms the substantive basis for the petition. In sum, a thorough petition must at least contain the following:

  • a clear description of the documents to be seized whereas the attachment may not result in a fishing expedition
  • a clear explanation of the legal relationship to which the documents to be seized relate
  • a thorough substantiation of the legitimate interest of the petitioner in obtaining (copies of) the documents to be seized
  • facts and circumstances supporting the necessity of the conservatory seizure of evidence
  • the identity of the (counter)party against whom the attachment will be made and a sufficient substantiation supporting that the documents are indeed in its possession, at its disposal or in its custody
  • a motivated request for an ex parte decision on the petition without hearing the counterparty
  • a motivated request to have the seized documents be given in judicial custody
  • a description of a seizure process safeguarding the confidentiality of the seized documents

Step 2: execution of the seizure

Once the court has granted the leave for seizing evidence, the seizure may be executed. In that respect a court bailiff, IT-expert (in case of digital evidence) and judicial custodian must be thoroughly instructed how and when to execute the seizure and to have the seized documents be given in judicial custody. Important things to discuss are:

  • the timing and coordination of the attachments, especially when attachments must be made on different locations - it is important that the attachments take the attached party by surprise in order to prevent the risk of embezzlement or destruction of evidence
  • the technical execution of the seizure of digital evidence stored on computers or other carriers or in the Cloud.

Whereas the seized documents must remain confidential, the attaching party may not be present during the execution of the attachments. The bailiff is permitted to draw up two different reports of the executed attachments, (1) a report for the attaching party which only globally describes the seized documents and (2) a report for the attached party which entails a detailed description of the seized documents and which will remain confidential until a court ordered release of the seized documents.

Step 3: claiming surrender of the seized documents
The third and last step in the process of obtaining evidence through a conservatory seizure thereof is claiming surrender of the attached documents/data through legal proceedings brought against the attached party. These proceedings must be instigated within the term set in the court leave granting permission for the conservatory seizure, such on penalty of expiration of the conservatory attachments. Surrender of the seized documents must be claimed on basis of the exhibition claim of article 843a DCPC mentioned above. In order to successfully claim surrender of the documents, the plaintiff is in short bound to demonstrate to the court that:

  1. he has a legitimate interest in obtaining (copies of) the seized documents;
  2. the respective documents relate to a legal relationship to which the plaintiff is a party;
  3. the defendant is in possession of the respective documents or has them at his disposal or in his custody

Click here  for more information on the exhibition claim on basis of article 843a DCPC.

Final remarks
Conservatory seizure of evidence may be an effective instrument under Dutch civil procedural law to obtain missing evidence required for – for example – defining your legal position without losing the risk that the evidence will run to waste. That being said, as conservatory seizure of evidence is seen as a far-reaching instrument under Dutch law, it is of the utmost importance to carefully exercise every single one of the steps described above. Our lawyers are expertized on this topic and fully prepared to provide the required assistance throughout the entire process. In case of any questions in relation to this article, please contact one of the attorneys of our Corporate & Commercial Litigation department.

Our Corporate & Commercial Litigation department is highly expertized on matters regarding conservatory seizure of evidence. In case of any questions in relation to this article, please contact Michiel de Vlieger or any of the other attorneys of our Corporate & Commercial Litigation department.

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