There is little as frustrating as knowing that you are factually right and that evidence is or should be there, but that the other party or someone else has it and does not hand it over. Often the rule is: a bird in the hand is worth two in the bush. Therefore, it is positive news that as of 1 January 2025, with the introduction of the new law of evidence, the legal possibility has been created to attach data or items that can serve as evidence in proceedings. Especially when combined with the extension of the right to inspect, copy or obtain an extract of certain data.
Prejudicial attachment of evidence was previously only legally regulated for cases dealing with intellectual property rights (Art 1019b et seq Rv), but it was already settled in Supreme Court case-law that prejudicial attachment of evidence could also be made in cases not dealing with IP matters. With the legislative amendment to introduce the new law of evidence, that case-law was codified. Preservation of evidence prevents an opposing party from having the opportunity to destroy evidence.
Possess, but not (yet) know
A prejudgment attachment of evidence only makes it possible to secure evidence. It does not mean that the party effecting the attachment also has the right to examine the contents of the evidence seized. A request for inspection must first be made. Furthermore, if the confiscated item is of interest to an investigation by an expert, it is possible to request an expert report. If the request for inspection is rejected, the bailiff must return the data immediately and destroy any copies made.
Attachment of evidence: The procedure to be followed
An attachment of evidence is possible after permission from the preliminary relief judge. The judge will assess whether the petitioner has sufficient interest in inspecting the evidence and whether any of the grounds for rejection apply, namely:
- that the information requested is not sufficiently defined;
- insufficient interest in the attachment;
- the request is contrary to the proper order of the proceedings;
- there is an abuse of power; or
- there are other compelling reasons that oppose the attachment of evidence.
A lawyer submits a petition on behalf of the petitioner to seize evidence. The lawyer states the following:
- the data or items for which attachment is requested and where they are located;
- the legal relationship on which the attachment is based;
- the name and place of residence of the opposing party and of the third party if the attachment is being made against someone other than the opposing party;
- the interest in the attachment and the facts and circumstances on the basis of which there is a well-founded fear of misappropriation or loss of the data or items to be attached;
- the nature and progress of the claim filed or to be filed or the request submitted or to be submitted;
- the name and capacity of the expert (IT specialist) who can assist the bailiff in the seizure, if the data to be attached includes electronically stored data.
In principle, neither the opposing party, nor any third party (if the attachment is made against someone other than the opposing party), nor other interested parties are heard about the request, except in the case of a financial institution such as a bank or insurance company. The reason for this is that in the case of such institutions, there is unlikely to be a well-founded fear of embezzlement or loss of evidence, as a result of which the request for attachment of evidence in such an institution is unlikely to be granted.
If at the time of the authorisation no main proceedings are pending, the authorisation will be granted on the condition that main proceedings are initiated within a period to be determined by the preliminary relief judge. If this period is exceeded, the attachment will lapse. Authorisation to make the attachment will not be granted if the protection of confidential data or matters is not guaranteed. The preliminary relief judge’s assessment is cursory. The full assessment only comes later, when a request is made to inspect the evidence attached.
The seizure
The bailiff carries out the attachment. The petitioner may not be present, unless the judge has ruled otherwise or the bailiff deems his presence necessary to designate the data or items to be seized. In all cases, the protection of confidential data is guaranteed. The person against whom the attachment is made is obliged to cooperate in the execution of the court order for attachment. The data to be seized also includes the data carrier (such as hard disks) itself.
Immediately after the attachment or no later than the following day, the bailiff will draw up a more precise description of the data or items that have been seized. The official report is served to the opposing party within three days of the attachment, and in the case of an attachment against a third party, also to the third party and, if there is a custodian, to him as well. The official report intended for the attaching party contains a general description of the data or items attached.
More information
If you have any questions based on this article, please contact Joost Wery (jw@kneppelhout.nl), specialist in attachment of evidence.
