When a court may allow an ex parte Motion for an Anton Pillar Order, allowing a party to have the opposing party’s electronics searched without notice.
BACKGROUND
The parties were engaged in a relationship from 2011 until 2014 and had one child, they were never married. The mother stated that the relationship was abusive and controlling. During the relationship the mother provided the father with sexually explicit photos of herself taken in a boudoir photoshoot and by herself. The father took sexually explicit photos of the mother during the relationship which she consented to the taking of, but not to their distribution. The father then began hacking the mother’s Facebook and email accounts and distributing the illicit photographs of her. The father was charged criminally for mischief. In 2016, the mother discovered her name was linked to a pornographic website which were posted by someone with the username “buckslayer29.” The mother brought an ex parte (without notice) motion for an Anton Pillar order to seize the father’s computer and phone without notice to prove that he was “buckslayer29.” An Anton Pillar order requires the satisfaction of the following factors:
- The requesting party must demonstrate a strong prima face case;
- Damage to the opposing party of the alleged misconduct must be very serious;
- There must be convincing evidence that the opposing party has in its possession incriminating documents or things;
- A real possibility the opposing party may destroy the material before discovery
The judge granted the motion and allowed for the Anton Pillar order and the father tried to have this order set aside, arguing that the above factors were not satisfied.
ANALYSIS
The key factor in a decision like this is to determine whether the mother could prove on a balance of probabilities that the father was responsible for posting the photos. Upon reviewing the case, the judge found as this was much more than a fishing expedition, there was no basis to set aside the order. Although the Anton Pillar order did not lead to definitively proving that the father was “buckslayer29” the judge was satisfied that evidence arising from the search was sufficient in demonstrating that he was the most likely person to post the private photos on the internet. The horrific nature of the father’s conduct warranted the judge to order him to pay $130,000 in damages to the mother.
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