One of the lower courts correctly found that lawyers who undertake searches under the authority of an Anton Piller order and thereby get hold of relevant confidential information attributable to solicitor-client relationships, bear the burden of showing that there is no real risk that someone will exploit such confidences to Defendant's prejudice.
There are four essential conditions for the making of an Anton Piller order.
Both the strength and the weakness of an Anton Piller order is that it is made ex parte and [is] interlocutory: there is thus no cross-examination on the supporting affidavits.
The absence of specific terms in the Anton Piller order does not relieve the searching solicitors from the consequences of gaining inappropriate access.
that the right of [Plaintiff] to choose counsel yields to what occurred in the execution of the Anton Piller order in this case and its aftermath, and that '[t]he reasonable perception of the integrity of the administration of justice would be adversely affected were Cassels Brock .
I think [Defendant] will be sufficiently protected if [Plaintiff] is ordered not to seek or receive advice or information directly or indirectly from Kasowitz in connection with any litigation in Canada arising out of the matters referred to in the amended statement of claim, or related thereto, provided Kasowitz files affidavit(s) satisfactory to the case management judge confirming that the firewalls it had undertaken to install were and are in place, and sworn confirmation that all of the material for which privilege is claimed that came into Kasowitz' s possession as a result of the Anton Piller order has been returned or destroyed.
It came about through a combination of carelessness, overzealousness, failure to focus on the limited purpose of preserving relevant evidence and by an inability to appreciate the potential dangers of Anton Piller orders.
Experience has shown that despite their draconian nature, there is a proper role for Anton Piller orders to ensure that unscrupulous defendants are not able to circumvent the court's processes by, on being forewarned, making relevant evidence disappear.