Court File No. T-665-05
OTTAWA, ONTARIO, THIS 21st DAY OF APRIL 2005.
PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
ADOBE SYSTEMS INCORPORATED, AUTODESK, INC.
and SYMANTEC CORPORATION
Plaintiffs
- and -
CAPMATIC LTD., FILLAB INC., PHARMAVIGOR INC.,
COUNTLAB INC. and ALLOWORLD INC.
Defendants
ORDER
UPON PLAINTIFFS' EX PARTE MOTION for an Anton Piller Order and other relief heard in camera on April 21, 2005, and upon reading the affidavits of Sean Chin, sworn April 1, 2005, Gwen Fuller, sworn April 11, 2005, Richard Foehr, sworn April 5, 2005, Joyce M. Cartun, sworn April 8, 2005, John R. Wolfe, sworn, April 11, 2005, and Tasha Charette, sworn March 29, 2005;
And upon hearing the submissions of counsel for the Plaintiffs;
And upon reading the Plaintiffs' undertakings to abide by any order the Court may make as to damages suffered by the Defendants for which it is liable as a result of the Plaintiffs obtaining this Order;
IT IS HEREBY ORDERED THAT:
Commencement and Term of Order
1. The terms of this Order shall become effective against each Defendant only from the day on which it is issued by the Court and shall remain in effect for fourteen (14) days thereafter, unless otherwise ordered by the Court.
Explanation of Search and Seizure Authority
2. The Plaintiffs' lawyer shall ensure that the nature and effect of this Order is explained fairly and in everyday language to the persons served with the Order. In particular, that:
i) The Defendants are ordered to allow the persons enforcing this Order to attend at the Defendants' business premises at 12180 Boulevard Albert-Hudon, 11740 4ième avenue and 11750 4ième avenue, all in Montréal, Québec, to search for and seize unauthorized or counterfeit copies of the Plaintiffs' computer software and any items or records that, on reasonable grounds, concern the infringement of the Plaintiffs' copyrights including information, items and records stored electronically or in computer memory as well as floppy disks, tapes, and recordable CDs (CDRs) containing any of the foregoing. This Order does not extend to seizure of hard drives containing copies of the Plaintiffs' computer software as of the date of enforcement of this Order;
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ii) The Defendants are ordered to allow the persons enforcing this Order to conduct a computer software search and audit on each of the Defendants' computers located at their said business premises, in accordance with the procedure set out in the Affidavit of John R. Wolfe, sworn April 11, 2005, to ascertain the number of copies of Plaintiffs' software programs installed, or in use, on the Defendants' computers;
iii) The Defendants are ordered to provide the persons enforcing this Order with their full and correct names and addresses and to cooperate with the persons enforcing this Order in all matters related to its enforcement;
iv) If the Defendants refuse to comply with the terms of this Order they may be found in contempt of Court, which may result in fines or imprisonment. Also, the court may draw adverse inferences if the Defendants do not cooperate in allowing the Plaintiffs' representatives entry into the premises to carry out the terms of this Order;
v) The Defendants must immediately cease producing, reproducing, distributing, or otherwise dealing with any unauthorized or counterfeit computer software of the Plaintiffs and must refrain from relinquishing the possession, custody or control of (other than to the Plaintiffs' solicitors or those other persons listed in paragraph 5 of this Order) or altering, erasing, destroying or disposing of any of the Plaintiffs' computer software programs or items referred to in subparagraph 2(i) of this Order. The Defendants may continue, for the term of this Order, to use software installed on the hard drives of their computers;
vi) The Defendants may consult a lawyer before complying with this Order provided that such advice is sought and obtained forthwith. The seeking of legal advice by the Defendants does not relieve the Defendants from the obligation to immediately comply with the provisions in paragraph 2(v) of this Order;
vii) The Defendants have an opportunity to attend in Court on the date fixed in the accompanying Notice of Motion to make submissions concerning the issuance, service or execution of this Order against them; and,
viii) The Defendants may bring a motion to the Court at any time before the date set out in the Notice of Motion, upon proper notice to the Plaintiffs' lawyer, to contest the issuance, service or execution of this Order.
If the actions of a person being served with this Order render the giving of an explanation not reasonably possible the attempt to provide such explanation will be deemed to constitute the giving of an explanation to that person.
Search for and Seizure of Unauthorized or Counterfeit Materials
3. Each Defendant or person in charge of the Defendants' business premises shall permit the persons who are authorized to enforce this Order (that is, the Plaintiffs' lawyers together with such persons as may be authorized by the Plaintiffs' lawyers, being in total not more than seven in number, plus such peace officers and law enforcement officers as may be required) to enter and search the Defendants' business premises at 12180 Boulevard Albert-Hudon, 11740 4ième avenue and 11750 4ième avenue, all in Montréal, Québec on any day of the week at any time between 7:00 a.m. and 9:00 p.m. for the purpose of:
i) Searching for and removing all unauthorized or counterfeit copies of the Plaintiffs' computer software and any items or records that, on reasonable grounds, concern the infringement of the Plaintiffs' copyrights including documents and information stored electronically or in computer memory as well as floppy disks, tapes, and recordable CDs (CDRs) containing any of the foregoing. The Plaintiffs may search and audit, but not seize, hard drives containing copies of the Plaintiffs' computer software as of the date of enforcement of this Order; and
ii) Conducting a computer software search and audit on each of the Defendants' computers, in accordance with the steps set out in the Affidavit of John R. Wolfe, sworn April 11, 2005, to ascertain the number of copies of Plaintiffs' software programs installed, or in use, on the Defendants' computers.
4. Each Defendant or person in charge of the Defendants' said business premises shall open, operate, and make available to the persons enforcing this Order any computer, container, safe, or storage area within their possession, custody or control and open any locked doors of the premises behind which the persons enforcing this Order have reasonable grounds to believe there may be any of the information, items or records mentioned in paragraph 3 of this Order.
5. Each Defendant or person in charge of the Defendants' said business premises shall immediately deliver up to the persons enforcing this Order any of the information, items or records mentioned in paragraph 3 of this Order within their position, custody, power or control, whether or not located in the Defendants' business premises.
6. The Defendants shall permit and, to the extent requested, assist the persons enforcing this Order to operate any computer or computer-related equipment which may contain any of the information, items or records mentioned in paragraph 3 of this Order, and shall provide operable access to any computer or computer-related equipment which may contain any such information, items or records.
7. The Defendants and any person in charge of the Defendants' said business premises shall not take any steps to destroy or conceal any of the items or records mentioned in paragraph 3 of this Order.
Disclosure of Information
8. Each Defendant or person in charge of the Defendants' business premises shall immediately disclose to the persons enforcing this Order:
i) The whereabouts of all unauthorized or counterfeit copies of the Plaintiffs' computer software and any information, items or records that appear to concern the infringement of the Plaintiffs' copyrights including, without limitation, documents, records or information stored electronically or in computer memory, or copies of same, and disks, tapes, or CDRs containing any of the foregoing, of which they have knowledge, whether on the Defendants' premises or elsewhere;
ii) Their full and proper names and the address at which registered mail sent to them will be received;
iii) The name and address of all suppliers and/or Internet sites that have supplied them with unauthorized or counterfeit copies of the Plaintiffs' computer software and any items and records that appear to concern the infringement of the Plaintiffs' copyrights including, without limitation, documents, records, information stored electronically or in computer memory, or copies of same, and disks, tapes, or CDR's containing any of the foregoing; and,
iv) The name and address of all persons of whom they have knowledge who are, or have, engaged in or who assist, or have assisted, in the activities enjoined by this Order.
9. Each Defendant or person in charge of the Defendants' business premises shall allow the persons enforcing this Order to photograph or videotape the premises only to the extent necessary to enforce this Order.
Non-Disclosure of Order
10. Every person on whom this Order is served or who has notice of the service of this Order is prohibited for a period of twenty-four hours after such service from:
i) Disclosing to or discussing with any other person the existence of these proceedings or the Orders herein; and
ii) Otherwise informing or warning any other person that the Plaintiffs might execute this Order against him or her.
11. Notwithstanding paragraph 10, any person on whom this Order is served and any person having notice of it may at any time consult a solicitor for the purpose of obtaining legal advice with respect to these proceedings.
Effect of This Order
12. A Defendant who is an individual who is ordered not to do something, must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.
13. A Defendant which is a corporation and which is ordered not to do something must not do it itself or by its directors, officers, employees or agents or in any other way.
Custody and Use of Materials Seized
14. The Plaintiffs' lawyer shall ensure that a list is made of all the items and records that are seized or delivered up pursuant to this Order and, at the time of the seizure, shall serve a copy of that list on the Defendants. If the Plaintiffs' lawyer is satisfied that full compliance with this paragraph is impracticable, he or she may permit the search to proceed and items to be removed without compliance with the impracticable requirements.
15. When records (not including floppy disks, tapes or CDRs) are seized or delivered up, such analysis and copying as the Plaintiffs' lawyer considers necessary shall be done as quickly as is reasonably practical and the records shall be returned by the Plaintiffs to the Defendants forthwith after copying.
16. All information, items or records seized or delivered up pursuant to this Order, together with a copy of the list prepared pursuant to paragraph 14, shall be deposited for safekeeping with any registry of the Federal Court or may be retained in the custody of counsel for the Plaintiffs, providing that a copy of the list prepared pursuant to paragraph 14 and a complete photographic or electronic record of the information, items or records that have been seized or delivered up are filed by counsel for the Plaintiffs with the Court. In the case of identical goods, a photograph of one item together with an inventory of the numbers seized will suffice. The provisions of this paragraph apply whether or not the identity of the individual or corporation from whom the information, items or records are seized or by whom they are delivered up is known.
17. The information, items or records seized or delivered up pursuant to this Order shall be utilized solely for the purpose of civil proceedings and in relation to the enforcement of the Plaintiffs' copyright rights or the copyright rights of any legitimately interested third party respecting unauthorized or counterfeit computer software.
Assistance in Enforcing the Order
18. Where a breach of the peace is apprehended as a result of the execution of this Order, the sheriff and such other police officers, law enforcement officers and authorities in those locations where this Order is sought to be enforced, as may be required by the persons enforcing this Order, may attend to prevent such an apprehended breach of the peace.
Injunction Restraining Infringement
19. Each Defendant is restrained from:
i) producing, reproducing or causing to be produced or reproduced, all or a substantial part of any unauthorized copy of computer software, the copyrights to which are owned by the Plaintiffs;
ii) relinquishing the possession, custody or control of (other than to the Plaintiffs' solicitors or those individuals outlined in paragraph 3), or altering, erasing, destroying or disposing of any unauthorized or counterfeit copies of the Plaintiffs' computer software and any information, items or records that appear to concern the infringement of the Plaintiffs' copyrights including, without limitation, documents, records or information stored electronically or in computer memory, or copies of same, and disks, tapes, or CDRs containing any of the foregoing;
iii) ordering, abetting, authorizing or assisting others to do any of the above acts; and,
iv) notwithstanding anything in paragraph 19 of this Order, the Defendants may continue, solely for the term of this Order, to use such unauthorized copies of the Plaintiffs' software as are installed on the Defendants' computers as of the date of this Order. The Plaintiffs may apply within the Plaintiffs' motion for review described in paragraph 20 of this Order for an injunction prohibiting any use of any unauthorized copies of the Plaintiffs' software.
Court Review of Execution of the Order
20. The persons enforcing this Order shall serve on the Defendants a copy of this Order together with a draft copy of the Statement of Claim as well as a Notice of Motion providing for the review by the Court of the execution of this Order and the Order's continuation and amendment. That Notice of Motion shall be returnable May 5, 2005, or so soon thereafter as it is possible to have the matter heard by the Court, at the Federal Court in Ottawa, Ontario, without prejudice to the Defendants' right to have the Motion location moved to Montréal, Québec. If the actions of a Defendant make service pursuant to this paragraph not reasonably possible, leaving a copy of the documents at the Defendant's said business premises shall be deemed to be proper service on each Defendant. The Plaintiffs shall issue and serve their Statement of Claim within seven (7) days of the execution of this Order.
21. The Notice of Motion providing for the review by the Court of the execution of this Order may request an Order extending the interlocutory injunction as described in paragraph 19, or if the interlocutory injunction has expired, the issuance of an interlocutory injunction against the Defendants who have been served with this Order, in which case the Plaintiffs need not, pursuant to Rules 362 and 364 of the Federal Court Rules, 1998, serve or file a Motion Record unless otherwise ordered by the Court, and the Defendants need not, pursuant to Rule 365, serve or file a Motion Record unless otherwise ordered by the Court.
22. The motion referred to in paragraph 20 of this Order shall be supported by an affidavit from an attending lawyer setting out a full and accurate report of the execution or executions under review, and including a full description of all information, items or records seized, as described in paragraph 16.
23. The Defendants are not required to attend at the motion referred to in paragraph 20 of this Order and may consent to an Order proposed by the Plaintiffs in respect of that motion.
24. When a person is added as a named Defendant or Plaintiff, it shall not be necessary to amend the style of cause but merely to add the name of the person to a Schedule "A" to the Statement of Claim, each such addition being listed and numbered in sequence, in the order in which they are added, with the date of the addition also being noted. All subsequent documentation respecting that Defendant or Plaintiff, filed with the Court, shall include that numerical designation.
25. The Defendants may request an earlier hearing of the review motion referred to in paragraphs 20 through 22 for the purpose of having the Order against the Defendants set aside or varied, or to determine whether the Plaintiffs should be required to post security. Any such request shall be by Notice of Motion and served on the Plaintiffs' lawyer.
Plaintiffs' Undertaking
26. This Order is issued on the Plaintiffs' undertaking to obey promptly any Order of the Court with respect to damages, that may issue, arising out of any unauthorized execution of this Order or upon the setting aside of the Order.
Miscellaneous
27. Leave to bring this motion ex parte and in camera was hereby granted.
28. The Statement of Claim, this Order, and any other Orders and all documents received or filed in support of this motion shall be held in sealed envelopes in the custody of the Court until counsel for the Plaintiffs notifies the Court that the Order and the Statement of Claim in this action have been served on the Defendants.
29. This Order shall apply to the Defendants Capmatic Ltd., Fillab Inc., Pharmavigor Inc., Countlab Inc. and Alloworld Inc., and to each of their directors, officers, employees and agents.
"Michel M.J. Shore"
Judge