The seizure of evidence

Introduction

The Supreme Court, with its judgment of January 4, 2024 (C.22.0373.N) took a groundbreaking step in Belgian procedural law by recognizing the generalized seizure of evidence. This ruling is of vital importance to litigants struggling with evidentiary problems - especially situations where evidence is located with opponents or third parties but remains inaccessible. It complements the (descriptive) seizure regarding counterfeiting. Below we discuss the bases, conditions and practical implications of the evidentiary seizure, as upheld by the Supreme Court.

The facts behind the cassation ruling

The trigger for this cassation judgment was a typical scenario within the realm of trade secrets. A company in the flax industry had developed an innovative machine. After terminating his employment, a former employee started a competing company, intending to commercialize similar machines.

The original employer had strong suspicions that confidential business information had been misappropriated, including technical specifications, designs, and commercial data such as price lists and customer information. However, the possible evidence of this was only on the ex-employee and his company, making it difficult for him to prove it.

In preparation for a strike action, the employer filed a unilateral petition with the president of the court of first instance West Flanders, Kortrijk division. In it, he requested a bailiff to seize certain documents from the former employee, with a view to using them in proceedings on the merits. The president granted this request. In response to a third-party objection, the president slightly reversed his original order, whereupon the employer appealed to the Ghent Court of Appeal, which upheld the original order. This judgment was appealed in cassation by the competing firm, which was rejected by the Court of Cassation.

Historical context of the seizure of evidence in Belgium

Before the judgment of the Court of Cassation of Jan. 4, 2024, limited forms of attachment of evidence already existed in Belgian law:

• Seizure regarding counterfeiting: Belgian law has the so-called seizure regarding counterfeiting (Articles 1369bis-1 to 1369bis-10 Judicial Code). Persons who may bring an action for counterfeiting may, with the permission of the president of the court (see article 584, fifth paragraph, 5° Ger.W.), have a descriptive seizure of counterfeiting carried out by one or more experts. This form of attachment of evidence is only applicable if there is a violation of intellectual property rights.
• Trade secrets: Since act of July 30, 2018 on the protection of trade secrets article 584, fifth paragraph, 6° Ger.W. adds a new option to the non-exhaustive list of provisional measures that the president of the court can take. In the event of unlawful acquisition, use or disclosure of a trade secret, the president can order the seizure of the infringing goods as a precautionary measure. This course of action is only applicable if effective use of trade secrets can already be demonstrated.

Legal bases of generalized evidence seizure

In its January 4, 2024 ruling, the Supreme Court held that the following legislative provisions, read in conjunction, provide the legal basis for a generalized seizure of evidence:

1. Article 584 Judicial Code

This article regulates the authority of the president of the court of first instance:

• Pursuant to Article 584, paragraph 1, in cases that the president deems urgent, the president pronounces by provision in all cases except those that the law deprives the judiciary of.
• According to Article 584, Paragraph 4, the case is brought before the President in summary proceedings or, in case of absolute necessity, by petition. This petition is the unilateral petition within the meaning of articles 1026 et seq. of the Ger.W.
• Section 584(5) contains a non-exhaustive list of provisional measures that the president may take, including the appointment of a sequester.

2. Articles 871, 877 and 878 Judicial Code.

These provisions govern the production of evidence:

• Article 871 Ger.W. provides that the court may order any litigant to produce the evidence in its possession.
• Article 877 Ger.W. states that when there are serious and certain indications that a party or a third party has in his possession a document that constitutes evidence of a fact in question, the court may order that the document or a certified true copy of it be added to the record of the trial.
• Article 878 Ger.W. regulates the procedure when a third party holds the document. The court may request this third party to attach the original or a copy of it to the case file in the manner and within the time limit it determines.

3. Article 1462 Judicial Code

This article provides that in the cases where there are grounds to recover the ownership, possession or holding of movable property, he who recovers may seize such property, regardless of in whose hands it is, with the permission of the court.

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The Supreme Court ruled that it follows from the coherence of the above provisions that the president, upon unilateral petition and with a view to securing evidence, may order the production to a sequester of well-defined documents in the possession of a party or a third party. In doing so, the president may, if necessary, authorize the sequester to enter the home or business premises where the documents are located and to take custody of these documents.

Access to private spaces: legal framework

A crucial aspect of evidence seizure is that it often involves access to private premises. This raises questions regarding the protection of the home and private life.

Constitutional and international protection

Article 15 of the Constitution provides that the home is inviolable and that no search can take place except in the cases specified by the law and in the form it prescribes.

Article 8 ECHR protects the right to respect for private and family life, home and correspondence. According to the second paragraph, no interference by any public authority is allowed in the exercise of this right except to the extent provided by law and necessary in a democratic society for various legitimate purposes.

Review by the Supreme Court

The Supreme Court ruled that Articles 584, 871, 877, 878 and 1462 Judicial Code, provide a sufficient basis for an evidence seizure with access to the home. This satisfies the condition in Article 15 Constitution and Article 8.2 ECHR that the interference with the right to respect and inviolability of the home must be provided for by law.

Importantly, the Court clarified that the term "law" within the meaning of Article 8.2 ECHR must be understood in its substantive rather than its formal meaning. The law is the rule of law in force, as interpreted by the domestic courts. This means that no formal law in the strict sense is required, but that a combination of existing legal provisions, as interpreted by the courts, can suffice.

Detailed conditions for a lawful seizure of evidence

To limit the invasive nature of an evidentiary hearing and safeguard the interests of all parties, several conditions must be met:

1. Grounded fear of loss of evidence.

The applicant must make his interest in the attachment sufficiently plausible, as well as the facts and circumstances from which it follows that the attachment is necessary. There must be a well-founded fear that the documents in question would otherwise be lost and that the intended taking of evidence cannot take place in another manner less intrusive for the garnishee.

This is related to the "utter necessity" requirement of Article 584(4) Ger.W. for the use of the unilateral petition. This occurs when:

• There are exceptional circumstances that justify impairing the right to dissent in the early stages of the proceedings.
• There is a serious loss of time due to the notice in an adversarial proceeding that would prejudice the rights of a party.
• The other party is anonymous or virtual.
• It is inopportune to notify the defendant, for example, for reasons of legitimate surprise, such as when there is a well-founded fear that the opposing party would dispose of the documents if it knew of the applicant's intention.

2. Well-defined pieces

The documents targeted by the seizure of evidence and their location must be described as precisely as possible in the petition. The Supreme Court speaks of "well-defined documents". The seizure must not degenerate into a "fishing expedition" by taking access to everything that can be found on the garnishee's premises.

This condition can also be deduced from article 877 of the Judicial Code, which speaks of "a document that constitutes proof of a fact that is relevant to the case." The Supreme Court has emphasized that it must be a concrete (and therefore precisely identifiable) document. The court cannot oblige a party or a third party to provide general information or bring into the debate all the relevant documents at its disposal.

Seizure requests that are formulated too generally will be rejected. Case law contains examples where judges ruled that the requested amounted to a "private search" or a "blank check" because the request was too vague or disproportionate.

3. Retention by sequester, without inspection rights of parties

The seized documents are given into the custody of a sequester, usually a judicial officer. Importantly, these documents may not be disclosed to anyone, including the applicant. Only after the appointment of a court expert by the judge on the merits in an adversary proceeding can the documents be issued.

To order a sequester over evidence, three conditions must be met:

• The applicant should have the right to use the requested documents as evidence.
• The request must involve sufficiently individualized and locatable evidence documents.
• The sequestration must not irrevocably prejudice the interests of the other party.

It is essential that, on unilateral petition, the president define as precisely as possible the modalities and circumstances under which the sequester may access the evidence and how he must preserve it. For example, the places to which the judicial officer may have access, where appropriate with the assistance of public power, should be precisely defined. In the case of electronic files, it is recommended that an IT expert be appointed to assist the sequester.

Relationship between attachment of evidence and proceedings on the merits

Obligation to institute proceedings on the merits

An evidence attachment is made with a view to proceedings on the merits in which the seized documents may be used as evidence. Although for the general attachment of evidence, there is no legal time limit within which proceedings on the merits must be instituted (unlike the seizure regarding counterfeiting), it is advisable for the president to require the garnishee to initiate proceedings on the merits within a short period of time.

Consequences of not instituting proceedings on the merits

If no proceedings on the merits follow, the sequestrator will have to return the documents to the garnishee. The latter will have to go to the court on the merits to demand such delivery.

Although, in this hypothesis, the distraining party will not receive knowledge of the seized documents, there is nothing to prevent the distrained party from claiming damages from the distraining party, by analogy with article 1369bis/9 of the Judicial Code, on the basis of an abuse of the right of attachment. This will likewise have to be done before the judge on the merits because it exceeds the jurisdiction of the president.

Consequences of setting aside an order of evidence seizure

An important aspect is what happens to the evidence seized if the order authorizing the seizure of evidence is later overturned, for example, as a result of a third-party objection. The Supreme Court has ruled on this issue in a judgment of March 14, 2024.

The Supreme Court ruling of March 14, 2024

In this case, the Court ruled that the annulment on third-party opposition of the order authorizing a descriptive seizure on counterfeiting also applies to the evidence obtained during the seizure. Thus, the evidence obtained in this context can no longer be used in court.

To hold that the judicial officer's and expert's determinations made in the context of a descriptive attachment may remain as factual presumptions even if the authorization of descriptive attachment were reformed violates the law.

Exclusion from the Antigone teaching

It is noteworthy that the Antigone doctrine, which permits the use of illegally obtained evidence in civil cases under certain conditions, does not apply in this context.

In his judgment in principle of June 14, 2021 had held that in civil cases, the use of an illegally obtained piece of evidence can be barred only if obtaining it affects its reliability or compromises the right to a fair trial.

However, a stricter rule applies to the seizure of evidence: evidence gathered in the context of a seizure that is subsequently found to be unlawful is automatically deemed non-existent in the proceedings before the judge on the merits. The judge on the merits no longer has to assess the admissibility of the evidence and does not have to examine whether a procedural requirement has been disregarded, whether the reliability of the evidence has been compromised, or whether the right to a fair trial has been compromised.

Practice

The generalized seizure of evidence can be of value in a variety of situations:

1. Trade secrets and unfair competition

A classic example is the situation where a (former) employee or business partner has taken company-sensitive information, as in the case that gave rise to the cassation judgment of Jan. 4, 2024.

More specifically, evidentiary seizure can be useful in:

• Theft of customer files or supplier data
• Unlawful use of production processes or recipes
• Recruitment of personnel in violation of non-compete agreements
• Violation of confidentiality agreements
• Establishing a competitive enterprise using trade secrets

2. Corporate Law

Evidence seizure offers important opportunities within corporate law:

• For minority shareholders seeking to secure evidence for liability claims against directors
• Upon suspicion of fraud or embezzlement within the company
• In disputes between shareholders over the true value of shares
• When accounting manipulation is suspected
• In cases of asset stripping or other forms of asset commingling

3. Contractual disputes

In contract law, attachment of evidence can be of value in:

• Disputes over the performance of contracts where documentation is with the other party
• Cases of contractual liability where crucial evidence is in danger of disappearing
• Disputes about the quality of goods or services provided
• Disputes over paid or unpaid invoices
• Unlawful termination of commercial relationships

4. Labor Law

In an employment law context, evidentiary seizure can be applied to:

• Disputes over reasons for dismissal where employer keeps crucial documents under its control
• Disputes over variable compensation or commissions
• Cases of workplace discrimination or harassment
• Employee misuse of company assets
• Violation of labor law obligations

5. Liability Law

In liability disputes, evidentiary seizure can be useful to:

• Securing technical documentation in the event of product liability
• Preserve evidence of negligence or carelessness
• Safeguard medical records in medical liability cases
• Secure evidence of injury or causation

Practical implementation of an evidence seizure

1. Drafting the petition

A properly drafted petition is crucial to the success of an evidentiary hearing. It must include:

• A clear description of the applicant's factual context and plausible rights
• Precise identification of the documents to be seized
• Accurate localization of these pieces
• Justification of the utter necessity to litigate via unilateral petition
• Indication of well-founded fear that evidence will disappear
• Undertaking to initiate proceedings on the merits within a short period of time

2. Decision and implementation

After obtaining the order on unilateral petition, the evidentiary seizure is executed by:

• A judicial officer, possibly assisted by an IT specialist or other expert
• The attachment is made on the documents specified in the order
• The judicial officer draws up an inventory of the documents seized
• The documents are given into the custody of the sequester (often the judicial officer himself)

3. After the batter

After the attachment is made:

• If the proceedings on the merits are instituted within the time limit imposed by the president
• Are the records retained by the sequester until the court rules on the merits
• Can the garnishee file third-party opposition to the order
• Can the judge on the merits turn the documents over to an appointed court expert

Conclusion

The judgment of the Court of Cassation of January 4, 2024 marks an important evolution in Belgian procedural law. It enshrines the generalized seizure of evidence as an effective tool for parties in need of proof, in line with the central place that truth-seeking has acquired in our civil procedural law.

The safeguards formulated by the Court ensure a balance between the interests of all parties involved and limit the risk of abuse. This legal landmark opens up new perspectives in evidence gathering and litigation, particularly in areas such as unfair competition, corporate disputes and liability cases, where evidentiary distress is a frequent problem.

Are you facing a situation of evidentiary distress?

Our law firm has extensive expertise in securing evidence through evidence seizure. If you suspect that crucial evidence for your case is with an opposing party or third party and is in danger of being lost, do not hesitate to contact us.

Our specialized lawyers can:

• Assess whether your situation qualifies for an evidentiary hearing
• Prepare a carefully reasoned petition
• Having the attachment performed by experienced judicial officers, assisted by technical experts if necessary
• Conduct the follow-up procedure on the merits with knowledge of the case