Theft immediately springs to mind as an improper means by which documents and real evidence might be procured. Such behavior may entail civil wrongs, such as trespass and conversion, as well as criminal offences.
The solutions to the question as to whether to admit illegally obtained documents adopted in the UK and in Italy differ once again.
The English position
Unlike in civil law jurisdictions, the parties involved in a civil proceeding in England are required to disclose to the other party the documents they seek to rely on (including electronic documents, for example, e-mails), as well as the documents, which adversely affect their own or another party’s case or support another party’s case. This phase is called disclosure (See, CPR Part 31).
Originally, the fact that the parties involved in the proceedings have the duty to disclose all documents in their possession played an important role in the decision on the admissibility of the documents a party might have stolen from the other.
An interesting example is Lifely v. Lifely , an internecine partnership dispute between the sons of a successful farmer, in which a diary found in the family house was produced in the trial. The Court of Appeal held that the finding, reading and using the diary had constituted the tort of trespass to goods. Accordingly, the evidence had been obtained unlawfully. However, the Court admitted the document, saying that it would have been wholly disproportionate to exclude this evidence, since if the party had disclosed the existence of his diary, as strictly he ought to have done, this information would have emerged at the trial.
The interrelation between the admissibility of unlawfully obtained documents and the duty of disclosure was recently considered by the Court of Appeal in an important family law decision, Imerman v. Tchenguiz . The claimant was the husband, who shared an office and a computer system with his wife’s brother. When the marriage broke down, the wife petitioned for divorce. The wife’s brother, fearing that the husband would conceal his assets to prevent the wife obtaining a fair financial settlement in the divorce, accessed the husband’s computer system without his permission and copied information and documents stored there. Having removed privileged material, he passed the files to the wife’s lawyers.
In granting an injunction restraining the wife from using the information obtained from her husband’s computer, the Court of Appeal did not consider the fact that the husband had the duty to disclose the stolen documents (and that the evidence would or should have emerged in any case). Instead, the Court draw the attention on the wife’s duty to apply for the “legal means”, provided by the CPR, to obtain the other party’s documents, such as the Anton Piller order (now, called search order CPR r.25.1(1)(h)).
In deciding the issue, the Court applied a four steps test, which imposes to evaluate: (a) the seriousness of the illegality committed, (b) the possibility of obtaining legally that document, (c) the relevance of the evidence and (d) the right to a fair trial of both parties.
In conclusion, the most recent position in England seems to favour the idea of excluding illegally gathered documents, stolen from the other party, if they could have been obtained legally (with an Anton Piller order). In fact, even if the Imerman case is decided within the family law jurisdiction, is the Court of Appeal that had the last word. Therefore, it could be said that the arguments used by the appeal judges will at least have a strong influence on the future case law.
The Italian position
As we saw in the previous article, there is no piece of legislation guiding the interpreter when facing illegally obtained documents. Once again, Italian judges are called to bridge this gap.
The early position was in favour of a rule of exclusion: civil courts could not tolerate a party using a document obtained by a crime, because a party should never be allowed to take advantage from his own unlawful behaviour.
However, Italian civil judges have recently chanced their mind. A recent line of cases, all decided by judges of first instance, shows an indifference attitude towards the crime committed by the party to obtain useful evidence.
The position favouring the admissibility of illegally obtained documents is justified by three main points.
Firstly, there is no explicit rule of exclusion to be found in the Italian civil procedure code. Therefore, the judge, who has the sole duty to apply the law, cannot create a new rule.
Secondly, since the crime would have to be proven, ascertaining the illicit behaviour only to apply a procedural sanction, will an intolerable waste of time and could compromise the right to a trial within reasonable time.
Thirdly, the judge should not take in consideration parties’ conducts that took place outside the proceeding.
Italian civil judges share the idea that the Court cannot use a procedural sanction to punish a crime, without an explicit rule in that sense. The crime committed by a party will have to be punished in another proceeding, brought by the party whose rights have been violated.
It is a very pragmatic position, which combines the use of evidence with the repression of the crime.
Again English and Italian positions differ.
UK judges used to opt for having all relevant documents before the court, if they ought to have disclosed, while now they seems to prefer the “legal way” and re ready to exclude stolen documents if they could have been obtained by applying for a search order instead of committing a tort of trespass.
Italian judges have decided in the opposite way. Starting from a position of inadmissibility in the early ‘900, they now seem to favour the use of stolen documents in civil proceedings.
 This may include confidential documents if they are relevant to the dispute, although certain documents may be exempt from disclosure on the grounds of “legal professional privilege” or “privilege against self-incrimination”.
 Lifely v. Lifely  EWCA Civ 904.
 Imerman v. Tchenguiz  EWCA Civ 908.
 This practice was perfectly justified in family courts by the Hildebrand line of cases. See Hildebrand v. Hildebrand  1 FLR 244; K v. K  EWHC 1070 (Fam).
 An Anton Piller order is a court order that provides the right to search premises and seize evidence without prior warning. The order is named after the English case of Anton Piller KG v. Manufacturing Processes Limited  Ch 55 in 1976. Now, the power to give this order is specifically provided by CPR r.25.1(1)(h).
 “Illegally Obtained Evidence in Civil Proceedings: the English and the Italian position”.
 See, App. Milano, 5th April 1934, in Riv. Dir. Proc. Civ., 1935, 63 and Pret. Roma, 25th March 1975, in Foro It., 1975, I, 2837.
Image source: Flickr