Employee Interrogation and Ex Parte Evidence Preservation: The Hague Local Division on EP 3 289 139 B1
The Hague Local Division clarifies the boundaries of employee interrogation during ex parte evidence preservation and confirms that the procedural consequences of missed deadlines need not be explicitly spelled out in the order to preserve evidence.
A Unified Patent Court order for the preservation of evidence does not need to explicitly spell out the statutory consequences of an applicant failing to start proceedings on the merits, nor does a defendant's misreading of the operative provisions justify revoking an ex parte order to preserve evidence. In a recent order from The Hague Local Division, Single Judge Edger Brinkman maintained an ex parte order after the defendant sought a review under Rule 197.3 RoP, clarifying the strict allocation of responsibility when interpreting court orders during the execution of the measures.
Why did the defendant challenge the ex parte preservation order?
The dispute in UPC-CFI-0001103/2026 centers on EP 3 289 139 B1, a patent held by Essity Hygiene and Health Aktiebolag covering a tissue paper web comprising pulp fibers originating from Miscanthus Giganteus. Essity obtained an ex parte order to preserve evidence at the Swalmen production facility of WEPA Nederland B.V. Following the execution of the measures, WEPA requested a review of the order.
WEPA advanced several arguments for revocation. The defendant alleged that its employees were unlawfully pressured to answer questions about manufacturing know-how under the perceived threat of a penalty. Furthermore, WEPA argued that the order was procedurally defective because it failed to state that the defendant could request revocation if Essity did not start proceedings on the merits in time. Finally, the defendant contested the validity of the patent and argued that a nine-month delay by the applicant negated any urgency justifying an ex parte order.
How did the single judge assess the alleged duty to answer questions?
WEPA asserted that the bailiff's repeated references to penalties for non-cooperation created the impression that employees were obliged to answer questions regarding machines, processes, and data. The Court firmly rejected this interpretation.
The single judge noted that the reasoning of the order explicitly stated that personnel were not obliged to answer questions under pain of penalty. While Essity had originally requested an order compelling employees to directly, completely, and truthfully answer questions subject to a penalty, the Court had excluded this from the operative part. Instead, the operative part merely allowed Essity to ask questions and rejected the broader requested relief. The Court held that the fact that the defendant and its employees did not read this properly was their own responsibility. The late arrival of the defendant's lawyers, who appeared over three hours after the execution of the measures commenced, was similarly deemed the defendant's own responsibility.
Does an order need to specify the consequences of missing the deadline for proceedings on the merits?
WEPA argued that the order caused a significant deprivation of statutory rights by omitting the explicit possibility for the defendant to request revocation if proceedings on the merits were not started. The Court dismissed this argument as legally unfounded.
The order set a clear time limit for Essity to start proceedings on the merits, namely 31 calendar days or 20 working days, whichever is the longer, from gaining access to the reports. The Court ruled that the Rules of Procedure make it sufficiently clear that the order ceases to have effect upon the defendant's request if this deadline is missed. Neither the specific action that the defendant is required to take nor the procedural consequences need to be explicitly specified in the text of the order itself.
How did digital storage and corporate structure justify the ex parte nature?
Addressing the defendant's argument regarding undue delay, the Court confirmed that urgency is not a strict prerequisite for an order to preserve evidence, but rather a factor in determining whether the measure should be granted ex parte.
The Court found a demonstrable risk of evidence being destroyed or otherwise ceasing to be available. This risk was substantiated by two factors. First, many of the documents targeted by the measures were stored digitally and could easily and promptly be deleted or moved elsewhere. Second, the defendant is part of a multinational group of companies, a structure that facilitates the easy movement of products, intermediates, pulp fibers, and physical documents.
What must practitioners ensure when executing or facing an ex parte order to preserve evidence after this order?
In practice, this order places a significant responsibility on defendants and their counsel during the execution of an ex parte order. Practitioners advising a target company must carefully parse the operative part of the order to distinguish between actions that are merely permitted by the Court and obligations that carry a financial penalty for non-compliance. If a specific obligation is absent from the operative provisions, general warnings from a bailiff about cooperation do not create a legal duty to disclose manufacturing know-how. Conversely, applicants seeking evidence preservation can rely on the statutory framework of the Rules of Procedure without needing to draft overly defensive orders that restate the procedural consequences of missed deadlines.