Civil Search Warrant.docx

Civil Search Warrant WHEN A PARTY is made a defendant in a court case, it is almost certain that he will not voluntarily provide evidence that establishes his liability. What a complainant can do, in such a case, to obtain evidence is to apply for the issuance of a search and seizure warrant against the defendant. Generally, in a search and seizure warrant, the defendant’s premises may be searched and anything found there that will prove the commission of a crime may be seized and presented in court as evidence. This can be very effective since the search and seizure warrant is issued without notice to the defendant. The only time that the defendant is made aware of the search and seizure warrant is when it is enforced against him. This prevents the defendant from hiding or removing incriminating evidence. However, a search and seizure warrant is normally used only in criminal cases and with law enforcement officers applying for, and implementing, the warrant. How then can a complainant in a civil action obtain evidence in the possession of a defendant? One way is to use the “modes of discovery.” Here, the complainant, upon compliance with requirements of the Rules of Court, may require a defendant to show documents and other evidence in the latter’s possession. However, while this may be a useful tool, there is still a possibility that the defendant will conceal or dispose of the evidence against him. Unlike in a search and seizure warrant, there is no element of surprise since the defendant is given notice of the complaint against him. Intellectual property rights cases present a unique situation. In such cases, a search warrant may also be obtained and implemented even if the evidence sought is to be used in a civil or administrative case. This is a special rule applicable to intellectual property rights cases and is similarly applied in other countries where it is also called an Anton Piller Order, being based on the remedy provided to the complainant in the English case entitled Anton Piller KG vs. Manufacturing Processes Limited and Others. In the case, the complainant showed that the defendant would likely hide or remove evidence against him. This justified the court allowing the complainant to inspect the defendant’s premises for evidence. Unlike in a criminal search and seizure warrant (criminal search warrant) where law enforcement officers apply for its issuance with the court and, once issued, enforce the warrant, a search and seizure warrant in a civil case (civil search warrant) is applied for by the complainant and is implemented by the court’s sheriff with the assistance of a neutral third party called a commissioner. The complainant is permitted to be present during the enforcement of the civil search warrant. Similar to criminal search warrants, civil search warrants are also issued without notice to the defendant. The element of surprise is, therefore, preserved. What is unique about civil search warrants is that it may require the defendant to disclose to the sheriff serving the writ the location

of the evidence sought to be seized. In other words, the defendant is somehow “forced” to reveal evidence that may be used against him. However, one should expect that the defendant will not be willing to comply with a civil search warrant and simply allow the sheriff, commissioner, and the complainant to enter his premises and seize evidence. Thus, it is usual practice to request for the assistance of law enforcement officers in order to ensure the defendant’s compliance with the civil search warrant and keep its implementation orderly and peaceful. To avoid abusing a civil search warrant, a complainant must comply with a number of requirements before one can be issued. Among the requirements that the complainant seeking the issuance of a civil search warrant must comply with is showing sufficient proof that he will suffer irreparable damage; and that there is a possibility that the defendant will likely hide, remove or destroy evidence in his possession. The complainant is further required to post a bond. These requirements are not needed when seeking the issuance of a criminal search warrant. With all the requirements needed to successfully implement a civil search warrant, why then should an intellectual property rights owner use it instead of a criminal search warrant? In a criminal search warrant, the intellectual property owner is bound by certain rules on criminal procedure such as those pertaining to proper venue and jurisdiction. As a general rule, a criminal case can only be filed in the place where the crime was committed. This may pose a problem if the crime was committed in a faraway location. Also, the criminal case can only be filed with the regular courts. In contrast, for a civil search warrant, the civil case can be filed at the place of residence of the complainant. More importantly, the complainant also has the option of filing the case with the regular courts or with the Intellectual Property Office (IPO) in the form of an administrative case. Filing a case with the IPO may be advisable whenever complex issues involving the protection of intellectual property rights are involved. A civil search warrant may also be useful for those who wish to protect and enforce their patents (these are intellectual property rights involving inventions, designs and utility models) where a criminal case may not be filed unless there is a prior judgment of liability on the part of the defendant. Battling violators and infringers has presented intellectual property rights owners with special challenges. In response, unique legal remedies are afforded to these property rights owners such as the civil search warrant. It is hoped that other remedies are made available to intellectual property rights owners in the future.