Seizure of evidence

Steps

Solutions

Preparations

  • Select one person and one deputy in advance as authorised representatives, preferably senior in-house counsel or senior managers.

  • Instruct receptionist in advance (see step 2).
  • Staff other than the authorised representatives should be informed that they should not answer any questions of the bailiff

Solutions

The bailiff(s) at the door: what to do?

Receptionist:

  • Immediately contact the authorised representatives.
  • Let the bailiff wait in the reception area.

Authorised representatives:

  • Immediately contact external and in-house counsel.
  • Escort the bailiff to a meeting room and ask them to wait until external counsel arrives.
  • Issue an instruction to the entire firm not to do anything which could damage the company’s position.
  • Ask the bailiff for identification and the court’s seizure order. Make copies of these documents.
  • Review whether the bailiff may carry out the seizure (leave from the court).
  • Ensure that the conditions of the seizure order have been met.
  • Establish the scope and purpose of the seizure. Do not answer questions which go beyond that scope.
  • Discuss further organisational details with the bailiff, for example which departments will be visited.
  • Select individuals to accompany each person of the bailiff during the seizure.
  • Record what is being asked and the replies given. Record which documents or materials are taken or copied.

Solutions

In case of a conflict

  • Resolve the conflict in the presence of an authorised representative or external counsel and a bailiff.

  • Explicitly object to the aspect of the seizure about which the conflict has arisen and state the reasons for the objection to the bailiff.
  • If the bailiff insists on proceeding, note the objection in writing including the reasons and have the bailiff sign this objection.
  • Decide whether to institute legal proceedings (preliminary relief proceedings) in order to resolve any conflicts.

Solutions

Measures to be taken before the bailiff(s) leave(s)

  • Make certain that any record of the objects seized, described and reviewed corresponds to the record drawn up by your company.

  • Ensure that any bailiff’s record concerning oral explanations given by personnel corresponds to the record drawn up by your company.

  • If possible, have a bailiff sign your record.
  • Ask a copy of any bailiff’s record.
  • Make a statement to the bailiff that the documents copied could contain commercially sensitive information and that therefore confidentiality is claimed.

Solutions

Step 5: After the bailiff leave

  • Organise a de-briefing meeting between the authorised representatives, accompanying persons and external counsel.

  • Decide whether it is necessary to send an explanatory letter refining your companies position to the petitioner or the bailiff.
  • Determine whether to prepare and issue a press release.
  • Determine whether it is necessary to disseminate a communication within your company setting out what to do and what not to do during the following hours and days.
  • Notify other group companies or officers of the parent company.
  • Establish the period of time within which to initiate proceedings.
  • Define legal measures to be taken, if any, to try to lift the seizure.
  • Observe whether the record of seizure has been served by the bailiff on your company within three days after the seizure. Forward this record immediately to external counsel.

This solution is intended to guide your company when a seizure of evidence is carried out. Originally only the holders of Intellectual Property-rights had been given the specific right to have bailiffs visit the sites of a company without prior notice to seize documents, files and other material as a security measure. In September 2013 the Dutch Supreme Court ruled that these seizures of evidence can be applied in non-IP matters as well. This solution provides the key principles of application of a seizure so as to enable your company to make informed choices.

A full guide is available for clients. Please contact one of the mentioned experts.