Interlocutory Injunctions to Seize Property or Documents: Anton Filler Injunctions

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 79-94

CHAPTER

5

INTERLOCUTORY

INJUNCTIONS

TO

SEIZE

PROPERTY

OR

DOCUMENTS:

ANTON

FILLER INJUNCTIONS

A.

INTRODUCTION

The

Anton

Filler

injunction

has

been termed

a

"civil search warrant."

It

allows

the

plaintiff

to

take

documents

or

property

into

custody where

she is

able

to

show that there

is a

real risk

of the

defendant destroying

them before

the

plaintiffs

substantive

cause

of

action comes

to

trial.

The

order

is

available

ex

parte

and

surprise

is an

important element

to

ensure

the

effectiveness

of the

order. Because

the

order

has the

potential

to be a

significant intrusion into

the

defendant's

affairs,

courts have cre-

ated

special procedural safeguards

to

accommodate

the

interest

of

both

litigants.

The

order

has

been particularly

effective

in

dealing with intel-

lectual

property infringement, although

it is not

confined

to

that area.

B.

JURISDICTION

Anton

Filler

injunctions

can be

divided into

two

categories.

1)

Injunction

to

Dispose

of the

Issues

In

the

first

category

are

cases where

the

injunction will dispose

of the

issues

in

dispute between

the

parties.

The

plaintiff

is

seeking

the

order

to

recover

property

in

which

he has a

proprietary interest, such

as

confidential papers,

or,

to

ensure

the

withdrawal

from

sale

of

commodities that

infringe

the

79

80 THE LAW OF

EQUITABLE REMEDIES

plaintiffs

trademark, patent

or

copyright.

In

this category,

the

property,

be it a

document

or

infringing article,

is the

subject matter

of the

dispute.

Cases

can be

disposed

at

this stage either because

of the

nature

of

the

target subjects

or the

type

of

market

in

which they operate.

With

respect

to

intellectual property,

the

market

is

often

highly volatile

and

the

infringing goods

will

often

only have

an

ephemeral value. Timing

is

a

decisive

factor

for the

plaintiff

and he

will want

to use an

Anton

Filler

order

to rid the

market

of

infringing articles

for as

long

as the

market

holds. Once

the

market

has

collapsed

the

plaintiff

will

see

little value

in

proceeding

to a

substantive trial

of the

merits

of his

cause

of

action.

In

respect

to

target subject, Anton

Filler

orders have been directed

at

defendants either engaged

in

manufacturing operations illicitly

reproducing intellectual property,

or at

retailers

who

form

the

lower

echelons

in

pyramidal marketing

of

illicit material.

Again,

timing

is

decisive. Again,

the

plaintiff

will

not

wish

to

proceed

to

trial

of the

merits;

in any

case,

the

target subject defendants

are

unlikely

to

have

the

resources

to

contest

the

plaintiffs

action.

2)

Injunction

to

Preserve Evidence

The

second category

of

Anton

Filler

injunctions concerns

the

preserva-

tion

of

evidence necessary

to

further

a

substantive cause

of

action.

Two

features

distinguish this category

from

the

first:

• the

plaintiff

may

have

no

proprietary interest

in the

property (usu-

ally documents)

which

is not the

subject matter

of the

dispute.

• the

importance

of the

documents

to the

plaintiff

is

their evidentiary

value

to

prove

a

substantive cause

of

action. Mere recovery alone

will

not

compensate

for the

plaintiffs

injury.

In

Canada,

for

both categories

the

jurisdictional base

for

Anton

Filler

injunctions

has

been

found

in

three areas.

In all the

common

law

provinces

as

well

as the

Federal Court rules there

are

provisions relat-

ing to the

interim

inspection

and

preservation

of

property. These

rules

have primarily been created

to

give

the

plaintiff

an

opportunity

to

either

inspect

premises

or

ensure

property

is

retained

in

safe

custody

before

judgment

is

rendered. While these rules encompass many

aspects

of the

Anton

Filler

jurisdiction,

they

do not

encompass all.

It is

difficult

to

include documents within

the

notion

of

"property"

as

envisaged

in the

rules; documents have

their

own

process

of

disclosure

through

the

discovery process. Some courts have also insisted that

pleadings

be

closed

before

moving pursuant

to

these rules,

in

which

case

the

advantage

of an ex

parte interlocutory process would

be

lost.