Journal Article

Search orders and computers

Arty Northey and Tony Willoughby

in Journal of Intellectual Property Law & Practice

Volume 2, issue 4, pages 234-239
Published in print April 2007 | ISSN: 1747-1532
Published online March 2007 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpm006
Search orders and computers

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Legal and practical context

On the execution of a Search Order, the Supervising Solicitor ensures that fair play is observed by the claimant's search party in circumstances which are always stressful and often emotional. With the rise of computer imaging orders, the length of time taken at the defendant's premises has increased and it frequently falls to the supervising solicitor to undertake any post-execution search and review of the computer evidence. It all adds to the expense. This article offers suggestions to ensure that the parties' positions are safe-guarded but the impact of computer evidence is properly managed.

Key points

The article sets out the history of the role of the supervising solicitor in the execution of a Search Order and how that role has evolved. The article then looks at the increased importance of securing evidence held on computers during the Search Order and the resultant impact. Suggestions are made as to the future drafting and conduct of Search Orders to ensure that the evidence and the interests of the parties are safe-guarded but with an eye to controlling costs. The claimant's solicitors do not have the luxury of time to debate these issues when preparing for its application. It is hoped this article provides the key points.

Conclusions

The article brings to light many issues which ought to be considered prior to the making of a Search Order. The suggestions offered rely on the court taking a pro-active role and the claimant conducting proper due diligence.

Keywords: Search Orders are a vital means by which an IP owner can secure lawful entry on to premises on which an alleged infringer may be holding information and other materials which demonstrate that an infringement has taken place.; The evolution of these orders, going back to the days of the first Anton Piller Order, reflects the needs of both parties in an era in which computers were rarely available for normal commercial use.; The specific problems raised when, as is now usually the case, a Search Order encompasses the need to examine the contents of computers are discussed in this article with special reference to keeping costs at manageable proportions and to preventing substantial disruption to the commercial and professional activities of all concerned.

Journal Article.  4581 words. 

Subjects: Intellectual Property Law

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