There are two key situations where a party may need to secure evidence before a writ is filed. Firstly, such need may arise due to the possibility that a legal dispute must be resolved in court, and there is a risk that evidence may be lost or will not be possible to bring before the court, unless the evidence is secured prior to initiating a lawsuit. Secondly, a party may need access to evidence in order to assess its legal position in relation to others prior to deciding whether to file a lawsuit.
In line with the TRIPS Agreement, the Disputes Act allows a claim for securing evidence outside litigation to be brought before the courts without notifying the possible infringer. In short, the conditions that must be fulfilled for the court to rule in favour of such a claim are:
- The evidence requested to be secured may be significant in a dispute where the requisitioner may become a party or party helper.
- There is either an imminent risk that the evidence will be lost or materially impaired, or for other reasons it is particularly important to access the evidence before a writ is filed with the court.
- There is reason to fear that notification to the counterparty may prevent the evidence from being secured.
Pursuant to the Norwegian Supreme Court's 2014 ruling, the requisitioner is not required to prove that it is most likely that a main claim exists in order for the request to be granted. An assessment of the evidential basis for the main claim will nevertheless be included in the proportionality assessment that must be carried out where the securing of evidence will be an infringement on the right to respect for requisitioner's counterparty's privacy, cf. Article 8 of the European Convention on Human Rights. Thus, it seems likely that the courts will assess the required probability for a main claim to exist as higher in a case involving Article 8 than cases not involving Article 8. If the claim is assessed as not proportional, the claim will be dismissed. A main claim may, for example, be a claim for economic compensation due to infringement of IPR, a claim for prohibition against continued infringement, a reasonable license fee etc.
The requisitioner must further prove that it is likely that it may be party to, or a party helper in, a dispute where the evidence requested to be secured may be of importance. It is also a prerequisite that the requisitioner provides arguments/evidence to such extent that the court finds it probable that the evidence requested to be secured exists.