ISRAEL Law and Practice Contributed by: Yitzhak Yaari, Chen, Yaari, Vaki & Co.
2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets
Naturally, the hearing of the motion to grant an order to seize evidence is generally ex parte, and the hear - ing in the presence of both parties is only held after the seizure of the evidence. Because of this, and because of the violation of privacy that such an order may cause, the courts are cautious in granting the order. As stated, among the powers that can be given to the person appointed to seize evidence is the power to enter premises. The Regulations establish rules for entering premises, such as giving suitable notice to the person against whom the order was made and informing them of their right to consult a lawyer by telephone. At the request of the person responsible for the premises, the appointee should explain to them in clear language the meaning of the order and that refusing to allow it to be carried out constitutes con - tempt of court and may be used as evidence in the legal proceedings. Entering the premises should be done in the presence of the person responsible for the premises, as well as two witnesses who do not have a personal or professional relationship with any of the parties (unless the person responsible for the premises does not wish the presence of witnesses or the court orders otherwise for special reasons). The conditions for conducting a search and the sei - zure of a computer and computer material are: • explicit authorisation to perform the search and seizure; • appointment by the court of an experienced office - holder to perform the search (unless the person responsible for the premises agreed to perform the search themself); and • ensuring that, during the search, no access is permitted to information from communications between computers (unless the person responsi - ble for the premises is the one who performs the search). 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties As a rule, a court in Israel will not issue an order against a third party who is not a party to the legal pro - ceedings ordering them to disclose documents and evidence. The usual way of obtaining documents in the possession of a third party is by summoning them
There is no recognised proceeding in Israel in which the defendant is required to declare their assets so that they can be seized to ensure the enforcement of the judgment. Instead, the plaintiff must locate the defendant’s assets and apply for their freezing to ensure the enforcement of the judgment. In most cas - es, locating the assets is done before the filing of the statement of claim through investigation firms. When the plaintiff knows of the existence of certain assets owned by the defendant, but does not know where they are located, they can request the appointment of a temporary receiver, who will be authorised, inter alia, to search for and locate the assets, to enter premises to locate and seize them, protect them, manage them, and, where appropriate, improve their value. 2.2 Preserving Evidence Section 123 of the Civil Procedure Regulations, 5779- 2018, authorises the court to grant an Anton Piller order to appoint someone to seize evidence for the purpose of conducting a search, copying or seizing evidence in the respondent’s possession or con - trol. Evidence is defined as “a document, including information stored on digital or electronic media, and objects, where there is a reasonable likelihood that they will be used as evidence in a lawsuit or they are necessary for adjudicating it.” The condition for grant - ing the order is that the court is persuaded that there is a real concern that the respondent or someone else acting on their behalf may conceal the evidence, alter it or destroy it, and this will seriously impede the litiga - tion of the proceeding or the discovery of the truth. Like a temporary receiver, the person appointed to seize the evidence can also receive extensive pow - ers, such as: • the power to search for and locate the evidence; • enter premises to locate and seize evidence; • search computer material, copy documents stored on electronic media; and • exercise any authority, power or right given to the owner or holder of the assets.
200 CHAMBERS.COM
Powered by FlippingBook