Court Ordered Securing of Evidence Outside of Legal Proceedings

Legal Requirements for Court Ordered Securing of Evidence before Legal Proceedings

The parties in a lawsuit often lack possession of the evidence they want to present to the court, and the Dispute Act therefore sets out several principles to ensure access to relevant evidence. However, the general rules of evidence in the Dispute Act presuppose that a case is already pending before the courts and will not be helpful when there is a need to secure evidence before a lawsuit is filed. Court ordered securing of evidence outside of legal proceedings is regulated by Chapter 28 of the Dispute Act and can be an important legal remedy for ensuring access to critical evidence in potential future legal proceedings.

There are particularly two situations where court ordered securing of evidence is relevant prior to taking legal steps. These situations are reflected in the requirements for evidence seizure set out in Section 28-2 of the Dispute Act, which reads as follows:

Evidence may be secured if the evidence may be of significance in a dispute to which the applicant may become a party or intervener, and there is either a clear risk that the evidence will be lost or considerably weakened, or there are other reasons why it is particularly important to obtain access to the evidence before legal proceedings are instigated.

In all cases, there must be a situation where “the evidence may be of significance in a dispute to which the applicant may become a party”. This is commonly referred to as the fundamental requirement for court ordered securing of evidence outside of legal proceedings. This fundamental requirement stipulates that there must be a connection between the evidence sought to be secured and a potential subsequent proceeding, in which the applicant has a legitimate need to clarify a claim affecting their legal position.

The Fundamental Requirement:

In order to be granted securing of evidence prior to court proceedings the petition must concern evidence that “can be of significance in a dispute to which the applicant may become a party …”

The Specification Requirement:

The particular items of evidence to be secured must be specified to a certain degree in the court petition for the securing of evidence. However, the requirement of specification at the preservation stage is not applied too rigorously

The Requirement of Proportionality:

The securing of evidence must constitute a proportionate interference with private and commercial interests.

In extension of the fundamental requirement, there is also a requirement that the evidence to be secured must be specified to some extent in the petition filed with the court. However, case law makes it clear that this specification requirement is applied with flexibility, as the purpose of securing evidence is to correct a lack of insight into the existence of evidence.

To be granted a court ordered securing of evidence outside of legal proceedings, it is not required that the underlying claim is substantiated as more likely than not. However, Article 8 of the ECHR and the system of the Dispute Act require that any interference with business operations or private life must be proportionate. Even though there is no requirement to substantiate the suspected claim as more likely than not, the requirement of proportionality stipulates that factors such as the evidentiary strength of the suspicion must be weighed against the intrusive nature of the evidence seizure. A petition to be granted securing of evidence for an alleged claim that is clearly unfounded will therefore rarely succeed, as it will likely be considered a disproportionate intrusion.

One of two alternative additional requirements regarding the purpose of the securing of evidence must also be met in order to be granted court ordered securing of evidence prior to legal proceedings. There must either be “a clear risk that the evidence will be lost or considerably weakened”, or “other reasons why it is particularly important to obtain access to the evidence before legal proceedings are instigated”, cf. Section 28-2 of the Dispute Act.

Alternative Additional Condition No. 1:

There is “a clear risk that the evidence will be lost or considerably weakened”.

Alternative Additional Condition No. 2:

There are “other reasons why it is particularly important to obtain access to the evidence before legal proceedings are instigated”.

The first additional requirement relates to the risk of evidence being lost or altered and is increasingly relevant in the digital age, where almost all documentary evidence is stored digitally and can easily be manipulated, altered or deleted. The risk of evidence being lost or altered is also increased where there is a high level of conflict between the parties, where the importance of the case gives the opposing party an incentive to alter or delete evidence, or where the evidence is crucial for a subsequent case.

Even if there is no immediate risk of evidence being lost, securing of evidence can be carried out if there are “other reasons why it is particularly important to obtain access to the evidence before legal proceedings are instigated”, cf. Section 28-2 of the Dispute Act. This typically applies when it is important for the parties to clarify the basis or scope of a potential claim before filing a lawsuit. For example, it may be necessary to determine against whom the lawsuit should be launched.

Securing of Evidence in Practice

If the requirements for court ordered securing evidence before legal proceedings are met, it must also be considered how the securing of evidence shall be carried out. The first question in this regard is whether the seizure should take place with or without prior notice to the opposing party. The requirements for omitting a notice to the opposing party is set out in the Dispute Act, Section 28-3 fourth paragraph:

If there is reason to fear that notice to the opposite party could obstruct the securing of evidence, the court may decide that the securing of evidence shall be carried out before the opposite party is notified. Neither the opposite party nor the public shall be informed of the case before the evidence is secured or more than six months have elapsed since the case was concluded. (...)

The conditions for omitting prior notice to the opposing party are closely linked to the first alternative additional requirement regarding the risk of evidence being lost or altered. To limit such risk, the securing of evidence can be carried out without prior notification of the opposing party. If notice to the opposing party is omitted, a subsequent adversarial process will be carried out, where those affected by the securing of evidence are given the opportunity to challenge the grounds for the court order.

Whether the court ordered securing of evidence is carried out with or without notice, access to the secured material will not be granted immediately. Once the decision to grant securement of evidence is final and enforceable, and the seizure has been carried out, the process moves from the so-called “securement phase” to the “search and sorting phase” and thereafter to the “disclosure phase”.

Petition phase:

The district court decides whether the securement of evidence is granted

Securement phase:

Securement in accordance with the District Court’s decision is carried out
- Mirror copies of data carreiers
- Copies of physical documents
- Physical seizure of objects

Search and soring phase:

Identification of relevant evidence
Process of search and sorting depending on the nature of the seized material

Disclosure phase:

Access is granted to relevant evidence that is not covered by the Dispute Act’s provisions on rules on prohibited evidence and exceptions to evidence access

Potential lawsuit

The disclosed evidence is “used” in a subsequent lawsuit

The actual seizure of evidence is usually carried out by the enforcement officer who creates mirror copies of entire data carriers. This approach allows large volumes of data to be secured quickly while enabling the original data carriers to be returned to their owner immediately. However, the mirror copies will often contain a significant amount of irrelevant material that must be sorted and excluded. The size of the secured data will often preclude manual sorting. The first stage of the sorting phase typically involves narrowing the dataset by using a list of relevant search terms determined by the court after input from the parties. This work is usually carried out by a court-appointed expert in digital forensics (e-forensics/computer forensics). When the court defines the expert’s mandate, the parties may have different interests, and it is often beneficial for a party to be represented by a lawyer with prior experience from prior cases regarding court ordered securing of evidence before legal proceedings.

The result of the court-appointed expert’s review is usually presented in a report submitted to the court. This report will form the basis for the final disclosure phase, where the court makes a final decision on which evidence the applicant will be given access to. At this stage, questions will often arise as to whether certain evidence should be exempted from disclosure with reference to the Dispute Act’s rules on exemption from evidence and prohibition of evidence, for example, trade secrets or attorney-client privileged correspondence.

Once it has been finally determined which evidence is to be disclosed and access has been granted, it is up to the applicant to decide any further use of the evidence, such as filing a lawsuit. Throughout the evidence securement process, the general rule is that the applicant must bear both their own legal costs and those of the opposing party. In a subsequent lawsuit, however, it is possible to claim the costs associated with the evidence collection from the opposing party.

Our Expertise

Litigation and dispute resolution have always been a central part of Hjort’s practice. We have extensive experience assisting parties seeking to secure evidence, as well as those facing requests for evidence preservation. In our work, we ensure that our clients’ interests are protected throughout the entire process.