Israeli Court Requires Near Certainty for Destruction of Evidence to Issue and Anton Piller Order

On November 27, 2011 the Magistrates Court in Tel-Aviv issued its decision in Efrat v. Cafe “La Gufra” regarding a request to cancel an “Anton Piller” search and seizure warrant that was granted before the main lawsuit in the case was filed.

The Plaintiffs are the parents of Chen Efrat, a woman who passed away as a result of a severe allergic reaction to nuts served to her inside a desert at the defendant’s restaurant. The plaintiffs argued, that the waitress clearly said that the dessert was without nut ingredients. It turned out that the desert contained a chocolate spread based on walnuts.

The Plaintiffs asked and received an “Anton Piller” warrant to seize the Respondent’s computer hardware, including the existing camera films taken in the defendant’s restaurant, as well as, staff names who worked that evening and all documentation relating to supply orders on the relevant dates.

The Respondents argued against the warrant saying that the request did not meet the requirements established in previous rulings of the court. Furthermore, the attorney appointed to seize and hold the assets under the Anton Piller order exceeded his authority when he conveyed the assets to a third party, by doing so he violated his duty for confidentiality. Nevertheless, no proof was shown to indicate a basis for real concern that those assets will be discarded or destroyed.

The court accepted the motion for cancellation of the issued Anton Piller order and stated that it was not proven at the required level of “near certainty” that there is a real concern regarding the defendant’s intention to discard or destroy the evidence. Moreover, such concern cannot be attributed to those who did not commit a criminal offense and the sole accusation ascribed to them is negligence. The Court added, that as a rule, it is not possible to use the “Anton Piller” order while filing a lawsuit based on the “Torts Ordinance” especially when negligence is to be considered. This decision is contrary to many previous decisions where an Anton Piller order were issued for tortious causes of action. 

The court goes on to base his decision on the following considerations:

First, the severe violation of the defendants basic right to be heard by the court, since the plaintiffs motioned the court ex parte. For that matter, the court chose to add that it was possible to obtain all the required information by using the standard procedure, meaning applying a “discovery and inspection of documents” request.

The court also took into consideration, the plaintiffs’ use of the media during the execution of the Anton Piller order and that the purpose of the motion was to “fish” for evidence, both seemed to undermine the good faith of the plaintiffs when moving the court.

The Court mentioned that Rule 387A requires three cumulative conditions for receiving an “Anton Piller” search and seizure order:

First condition, the motion must be accompanied by reliable evidence to prove the cause of action and credible evidence showing that the assets are “needed evidence” to prove the claim, and they were with the party against whom the warrant is requested. The requirements for a specific application and for evidence to support it are intended to ensure that the applicant acts in good faith and with integrity.

Second condition, the motion must satisfy a “real concern” that must be shown at a level of certainty that the evidence in the possession of the defendant would disappear. Furthermore, the moving party must show a connection between the assets whose seizure is requested and the the success of the lawsuit.

Third condition, the moving party must bring forth evidence showing that concealment of assets which might occur, would create a heavy burden on the legal process, not only causing difficulties in proving the prosecution’s case, but also lead to its failure.

The Court concluded that in accordance with Rule 387A the plaintiffs failed to base their motion on reliable evidence to prove the cause of action, they also failed to show at the required level of “near certainty” an existence of real concern that the defendant will discard or destroy the evidence requested. In addition, the plaintiffs failed to prove a causal connection between the concealment of assets and a heavy burden on the procedure or its chances to fail.