In the Court's view, it must resolve the conflict "on the basis that no one has the right to be represented by counsel who has had access to relevant solicitor-client confidences in circumstances where such access ought to have been anticipated and, without great difficulty, avoided and where such counsel has failed to rebut the presumption of a resulting risk of prejudice to the party against whom the Anton Piller order was made." [[paragraph] 2].
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. First, the plaintiff must demonstrate a strong prima facie case.
"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.
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." [[paragraph] [paragraph] 66-671.
With a career that has already spanned over 21 years, he has experience in Anton Piller Orders
(evidence preservation), Norwich Orders (third party disclosure of records), and Mareva Injunctions (freezing assets); and has acted as trial counsel in numerous commercial litigation and corporate fraud claims.