Preservation of evidence: How to secure legal evidence

Many legal disputes revolve around evidence. But what if you suspect that crucial evidence is in danger of being lost or deliberately destroyed? Or you suspect or are certain that the other party has certain essential documents but that it is impossible to lay hands on them.

In such cases, conservatory seizure of evidence can offer a solution. This tool enables you to secure evidence before legal proceedings actually begin. It can also help you consider whether it makes sense to commence legal proceedings.

What is prejudgment attachment of evidence?

Preservation of evidence is a legal tool used to secure evidence even before substantive legal proceedings have begun. This is done to prevent evidence from being destroyed, altered or misappropriated. The attachment can be made on physical and digital data.

Consider situations in which you suspect that you have a claim against a (former) colleague, employee or supplier, but you do not yet have sufficient evidence to prove this legally. An attachment of evidence then offers a way of securing that evidence for further use in civil proceedings.

Practical examples of evidence seizure

Two common situations in which evidentiary seizures are used:

• Company secrets leaked: A former employee had access to sensitive company information, and you suspect that this information has ended up with a competitor.
• Counterfeit products (counterfeit): You suspect counterfeit products are stored in a warehouse, and you, as the trademark owner, want to take action against them.

In this type of case, the evidence may be in emails, cloud storage, messaging apps or paper records. Once seized, the evidence is sealed and managed by a judicial officer or judicial custodian.

When is evidence seizure useful?

Seizure of evidence is particularly useful when you fear that the evidence will be lost, for example because the other party knows that legal proceedings are imminent. In that case, you cannot wait until the proceedings are underway, but must act now.

If there is no concrete risk of misappropriation or destruction of evidence, in many cases you can also request access through the court on the basis of article 843a Rv, without prior attachment.

What can you seize evidence from?

The law allows for a broad concept of evidence. Consider:

• Paper documents and records;
• Digital data on servers, hard drives or USB sticks;
• Data stored in the cloud in the broadest sense;
• Online platform environments and CRM systems; and
• Photographs and samples of physical objects.

Anything that can serve as evidence in civil proceedings can, in principle, be included in the seizure.

How does the evidence seizure process work?

The garnishee, through an attorney, must file a petition with the appropriate court. In that petition, the attorney explains, among other things:

• Why the seizure of evidence is necessary
• What data or files need to be seized
• That there is a concrete risk of misappropriation or destruction

If granted, the court grants permission (leave) for the seizure. A judicial officer then executes the seizure, often together with an IT specialist and possibly an auxiliary prosecutor.

What are the costs of an evidence garnishment?

The cost of an evidence garnishment depends on:

• The complexity of the case
• The number of locations or systems to be seized
• The use of third parties such as IT experts

Costs typically consist of:

1. Attorney fees for drafting the petition.
2. Costs for execution by the bailiff.
3. Any costs for IT specialists or storage of evidence.

In many cases, these costs are recoverable from the opposing party if the claim is upheld in the proceedings.

How do you eventually get access to the evidence?

After the seizure of evidence is made, inspection does not automatically follow. For this, a separate procedure must be initiated pursuant to article 843a of the Code of Civil Procedure. In those proceedings, it is assessed whether and to what extent you are entitled to inspect the seized material. The opposing party can defend itself in these proceedings.

Need help with seizure of evidence?

Our firm has extensive experience in applying for and executing evidence seizures. Please contact one of our  attorneys by email, phone or fill out the contact form for a free initial consultation. We are happy to think along with you.