What, if any, are the rules for disclosure of documents? Are there any exceptions (e.g. on grounds of privilege, confidentiality or public interest)?
Litigation (2nd edition)
In general, there are no pre-trial discovery proceedings in Austria as the production of documents and taking of evidence takes place in the course of the proceedings.
The court may order the production of a specific document by a party under limited circumstances. A party submitting a document request to the court has to present reasons as to why the document is in possession of the other party and what exactly it aims to prove with the requested document. General requests for handing over a certain category of documents are not permitted.
In a nutshell, a party is obliged to disclose and produce a specific document to the other party if there is an obligation to hand over said document under substantive law. A party may object the production of a document in order to protect itself or third parties from criminal prosecution, to protect family affairs or business secrets or to protect itself from being publicly ashamed.
However, a party in possession of a document cannot object its disclosure and production at all, if the party
- has expressly referred to the document in question as evidence for its own factual allegations during the proceedings;
- is obliged to hand over the respective documents under civil law provisions; or if
- the document is a so-called common document, a document, which records a mutual agreement between or was drafted in the interest of both parties.
Moreover, third-parties are also obliged to provide a specific document if either substantive law requires the third party to hand over the requested document, or if the document is considered to be of joint use to the parties, e.g. a contract. In all other cases, a third-party does not have to disclose documents in its possession.
An extensive discovery process equivalent to that of the USA does not exist in Japan. Although the court may order the holder of a document to submit that document based on a petition of a party pursuant to Article 219 of the CCP, the petitioner must specify the document in the petition and persuade the court that the disclosure of the document is necessary to the case. Therefore, the scope of disclosure is limited compared to the so-called discovery process.
The legal concept of attorney-client privilege does not exist in Japan. However, Article 220(4)(c) of the CCP stipulates that the holder of documents may refuse to submit the documents if the documents contain facts which professionals, such as lawyers and doctors, have learnt in the course of their duties and which should be kept secret.
There is no general obligation of disclosure. One party may disclose only the documents it finds useful to support its pleas.
However, before the initiation of any procedure, one party may ask for an ex-parte order from the President of the Court to be allowed to obtain through a bailiff the delivery of specific documents needed to support its claim. Once the proceedings have started such claim may be brought in front of the First Instance Court.
Professional secrecy may prevent access to certain documents. This is particularly the case in relation to banking secrecy. Also, evidence which has been obtained in a disloyal manner may be rejected by the Court.
There is no discovery process in Chinese litigation. Where a litigant is unable to gather certain evidence on their capacity due to objective reasons, or the court hold the opinion that certain evidence is necessary for trial of the case, the court has the discretion to investigate and collect such evidence. However, practically speaking, courts in China seldom initiate the evidence investigating and collecting process. In addition to that, the court may make an adverse inference against one party if that party refuses to produce certain document as ordered by the court.
Chinese laws do not recognize rules of privilege. Evidence which involves state secrets, commercial secrets and personal privacy shall be kept confidential, and shall not be presented at open hearings.
During the civil trial, the parties are under the obligation to prove their demands, the most common evidence being represented by documents. As a consequence, the parties must identify and locate all potentially documents. They must submit to the court all the documents in their possession that are intended to be used as evidence.
When the document supporting one of the parties is in the possession of the opponent or other person, the interested party may formulate a request of disclosure in front of the judge. The judge cannot dismiss the request when the document is common to the parties, when the document was mentioned by the party which possess it or when, by law, the other party is obliged to disclose the document.
The request may be dismissed in case the document is related to entirely personal matters, in case its disclosure would constitute a violation of the professional secret or in case the document potentially incurs criminal liability. Anyhow, the document must be presented to the judge, who shall decide whether the previous hypothesis is applicable.
In case the document is in the possession of a public authority, institution, party or other person who refuses to present it within the period of time granted by the court, the sanction consists in a judicial fine of 50 to 700 RON.
There are exceptions of the duty to disclose the documents on terms of privilege, confidentiality or public interest.
In case the document is in the custody of a public institution or authority, the court may issue a request to disclose the document. This request may be denied only for reasons related to national security, public security or diplomatic relations.
Moreover, communications between a party and its legal advisers in which the party is seeking or obtaining legal advice are always privileged, except when there is data suggesting the lawyer is committing or preparing to commit certain crimes named by the law.
The parties to civil proceedings may be required to disclose all documents in their possession, custody or power which relate to the proceedings. Such disclosure generally entails filing a list of documents verified by an affidavit confirming that the party making the disclosure has no other relevant documents in his custody or power. Privileged documents are required to be included in the list of disclosed documents but the party making the disclosure may object to their production. Privileged documents include documents covered by legal professional privilege or legal advice privilege, without prejudice correspondence and documents privileged on public policy grounds.
The court can, at the request of a party, require the other party to disclose documents which are available to the other party and relevant for the case and which the requesting party will invoke during the proceedings, unless the requested information would otherwise be excluded or exempted from the disclosure as a witness (see below, question 15). Non-compliance can result in adverse inference for the non-disclosing party.
The court can also, at the request of a party, require a third party to disclose documents which are available to him and which have importance for the proceedings, unless the information which will be provided would be excluded or exempted from the disclosure as a witness (see below, question 15). The court can deploy compulsory measures to ensure compliance from the third party.
The party who wants disclosure of documents must state the facts to be proved by the documents as well as the reasons that support the fact that the counterparty or the declared third party holds the documents.
Rules of confidentiality may prevent such disclosure, for instance legal privilege or the statutory confidentiality obligations imposed on banks and auditors, but in some cases – depending on the specific case – these privileges and confidentiality duties have been overruled by the courts.
There is no obligation on any of the parties to disclose or produce documents unless ordered by the court or mandated by law, in circumstances stipulated under the Egyptian Evidentiary Law no. 25 for the year 1968.
There is no production of document stage within the trial wherein the parties may request the court to order the opposing party to produce certain documents. A party may request documentation from the other party at any time during the proceedings, however, it is up to the sole discretion of the judge whether to grant the request or not.
It should be noted, that while Egyptian law does not regulate privileged documentation, there are general provisions stipulating that personal documentation of any of the parties does not have to be produced.
Russian procedural law does not provide for a mechanism of disclosure as in common law countries. The general rule is that each party bears a burden of proof in respect of its position, and therefore should provide the necessary supporting evidence. However, the court may order a respondent or a third party to provide a particular evidence under the party’s request if the following requirements are met:
(i) the evidence is relevant to the case;
(ii) a requesting party is unable to get the evidence by itself;
(iii) location of the evidence is identified.
Such mechanism does not allow to request categories of documents and the evidence requested should be clearly specified. Generally, the confidentiality of documents does not prevent their disclosure under a court’s order, but the parties may request the court to close the proceedings due to the confidentiality reasons.
As general statute, parties are obliged to present every document that could be used as evidence in trial. Failure to disclose and present all available documents can result in negative inferences drawn up by the Judge at judgment, however, there should be an indication that the documents exists and that one of the parties is failing to present such document.
Additionally, it is possible for the parties to request the Judge to order third parties or government agencies to submit documents to be used as evidence.
In Mexico there is no such thing as exceptions for disclosure, however, government agencies may deny production of documents based on national security concerns.
Common law discovery or document production does not exist in German civil procedure. There is neither a specific phase during the proceedings in which the parties have to collect their evidentiary material nor a general duty to disclose comprehensively all relevant facts and evidence. Rather, the fundamental rule is that each party must offer the evidence and eventually prove all the asserted facts which are necessary to justify its claim or defence. Similarly, the parties do not have a general procedural right to obtain the relevant information from the other party. To the contrary, the main principle underlying the German rules for establishing the facts of a case is based on the nemo tenetur rule: “A party is not obliged to put the weapons into the other party’s hands.” However, the parties are obligated to make true and complete submissions of fact (sec. 138 (1) and (2) ZPO).
As a result, the ZPO provides for only very few procedural disclosure rights. The most important one is sec. 142 ZPO. It allows the competent German court to order a party or a non-party to produce specific documents if one of the parties refers to it in its submissions. The court has discretion whether to issue the order or not. When exercising this discretion, the court has to balance the interest of the requesting party to prove a relevant fact of its case against the other party’s interest in confidentiality. Completely arbitrary or unspecified submissions “out of the blue” are not sufficient to meet the obligation of establishing an interest in disclosure. In particular, “fishing” for evidence that is not directly relevant to the requesting party’s claim or defence is not permitted under German law.
Each party is subject to a strict duty throughout the proceedings to disclose all documents in its possession, custody or power that are relevant to the proceedings. The procedures for documentary disclosure (also known as “discovery”) can be divided into two categories: automatic discovery and specific discovery. Under automatic discovery, the parties each provide a list of all documents relevant to the issues in dispute which are in the party’s possession, custody or power (this includes privileged documents). Non-privileged documents are to be provided on request. A party may also apply for specific discovery, where the court may order the other party to disclose a specific document if it is relevant and necessary to do so.
Privileged documents need not be provided. Types of privilege include legal professional privilege, without prejudice correspondence, documents privileged on public policy grounds, privilege against self-incrimination and common interest privilege.
Rules 63 to 79 of the RCCR provide the rules for disclosure. Unless the court directs or the parties otherwise agree, the usual order will be for standard disclosure. Parties have a duty to disclose documents which support or adversely affect their case and documents they intend to rely on. There are not currently any specialist rules to deal with the disclosure of electronic documents although the Court will permit the use of e-discovery in appropriate cases.
The principle of privilege is recognised in Guernsey and can be relied on to refuse inspection of disclosable documents in appropriate circumstances.
The disclosure, production and discovery of documents is governed by Order XI of the Code. Order XI Rule 14 provides that it shall be lawful for the Court, at any time during the pendency of any suit, to order the production of documents. Parties also have the right to ask for discovery and inspection of documents and to pose specific questions to the other party in the form of interrogatories.
With the enactment of the Commercial Courts Act, Order XI has been amended in respect of commercial disputes of a specified value and it has been provided that the parties are required to file a list of all documents and photocopies of all documents in their possession, control or custody, pertaining to the suit along with the plaint/written statement irrespective of whether the same is in support of or adverse to their case.
However, there are certain documents/communication that are excluded from the scope of disclosure as per the Evidence Act such as: (a) communications during marriage except in matrimonial matters; (b) evidence as to affairs of the State; (c) official communications made to a public officer in official confidence, when he considers that the public interests would suffer by their disclosure except with the permission of the department concerned; and (d) professional communications between lawyers and their clients in the course of or for the purpose of their employment.
An arbitral tribunal is also empowered to allow the discovery, production and disclosure of documents. While the provisions of the Code are not binding on the tribunal, typically tribunals in domestic arbitrations follow the provisions thereof while deciding such applications. In international arbitrations, tribunals may also place reliance on the IBA Rules on the Taking of Evidence in International Arbitration in some cases.
The Supreme Court has, in the case of M.L. Sethi v. R.P. Kapur [(1972) 2 SCC 427], held that the documents sought to be discovered need not be admissible in evidence and it is sufficient for the purposes of discovery of documents if the documents would be relevant for throwing light on the matter in controversy.
Isle of Man
Rules 7.31 to 7.52 provide a comprehensive regime for disclosure and inspection of documents and there is significant local case law in this important area of commercial litigation. Directions are either agreed by the parties or ordered by the court.
Standard disclosure requires a party to make a reasonable search for documents and to disclose only documents (a) on which he relies; (b) which adversely affect his own case or another party’s case; or (c) support another party’s case.
A party’s duty to disclose documents is limited to documents which are or have been in his control i.e. (a) it is or was in his physical possession; (b) he has or had a right to possession of it; or (c) he had or has had a right to inspect or take copies of it.
A party may object to inspection of a document on numerous grounds including (a) legal professional or other privilege; (b) public interest immunity; (c) without prejudice communications; (d) confidentiality of third parties; (e) compliance with foreign legal obligations and (f) inspection would be disproportionate.
The procedure for standard disclosure involves the careful preparation of a list which must include a disclosure statement.
In civil proceedings, the submitted documents are available and accessible both to the judge and to all the counterparties from the time of their formal filing in court. Generally, as provided by consolidated case-law, the right of defence prevails over the right to privacy/confidentiality (e.g., the filing by the employee of reserved company documentation is admitted for the sole purpose of defending himself in an appeal against his unjustified dismissal; the filing of documents containing the counterpart's or third parties’ personal data is also admissible, if the submission is related to the right of defence of the filing party).
In any case, according to the Forensic Deontological Code (Article 28), the correspondence between lawyers qualified as personal and confidential cannot be filed or reported in court.
In relation to the above, the correspondence between lawyers containing settlement proposals can never be filed in court.
Parties have the prerogative to submit the documents they consider necessary to prove their claims or defences. However, a party may request for the production or inspection of documents through a discovery procedure, which may be granted if the court considers the documents requested to be relevant and necessary to the proceedings. The discovery procedure may be refused if the requested documents contain privileged or confidential information.
As stated above, the disclosure of documents is allowed as a general rule, providing they do not conflict with personal dignity, privacy or public morality; constitute an abusive intrusion into private or family life; or breach of professional secrecy.
“Disclosure”, as it is known in common law, is not known in Slovak law; it is therefore impossible to answer this question.
The court may, upon the request of a party, order anybody holding a written document that can be assumed to be of importance as evidence in a case to produce it. An application for production of documents must concern specific documents or categories of documents which can be identified by a specific evidentiary theme. There are exceptions to the obligation to disclosure, such as written communication between a party and a close relative; documents under legal privilege, e.g. attorneys, physicians, dentists, midwives, trained nurses, psychologists, psychotherapists, persons ordained to serve as a minister of the Church of Sweden or of a congregation other than the Church of Sweden, concerning matters entrusted to, or found out by, them in their professional capacity, and; information subject to the application of certain provisions of the Secrecy Act. Documents containing trade secrets are protected unless the court finds that there are extraordinary reasons for disclosure.
All documents which are or have been in the control of the party, and which harm or support its or another party’s case, must ordinarily be disclosed in English litigation. This includes privileged documents. However, a party can withhold privileged documents from inspection by the other side; so even though the other party knows about their existence through disclosure it cannot view them. Types of privilege include privilege against self-incrimination, public interest immunity, legal professional privilege, litigation privilege, without prejudice privilege and common interest privilege. In most civil cases the parties must file disclosure reports and seek to agree a proposal for disclosure before the first case management conference. The court will then determine the appropriate disclosure order, choosing from a “menu” of disclosure options. Since 1 January 2019, a new disclosure regime has applied in many cases in the Business and Property Courts. The main objectives of the disclosure reforms are to improve efficiency and streamline the process of disclosure.
Bahraini law does not contain any disclosure requirements (in the same way common law systems do). Yet, courts have the right to oblige the parties in some situations to submit documents even if they are covered by non-discloser agreements.
There is no discovery phase per se. Rather, parties are entitled to submit evidence after the filing of the complaint. Usually the defendant waits for the plaintiff to submit its evidence before submitting evidence of its own, based on its strategic defense plan and under the premise of what documents were filed by the plaintiff, which is the party with the burden to prove its case. Parties are free to submit the evidence they choose and if a party needs a specific document from the counterpart or a third party, it may ask for the judge’s cooperation. All of this is conducted during trial, as there not a pre-trial stage in commercial matters.
Indonesian law does not recognize a discovery process or the obligation to disclose certain documents.
The rules for disclosure of documents are found under Order 24 of the ROC. Generally, all documents relevant and necessary to the case may and can be disclosed by parties.
Yes, there are exceptions to this general rule.
Certain classes of documents are deemed privileged, confidential under the law. The classes of documents are enumerated under the Evidence Act 1950 (“EA”):-
- Privileged Documents include:-
i. Professional communication between an advocate and solicitor with his clients in the course and for the purpose of his employment [See Section 126 of EA];
ii. Communication made to a public officer in official confidence [Section 124 of EA], Section 124 of EA also applies to communications made in official confidence by a private person to a public officer.
- Confidential Documents include:-
i. Communication between a person and his legal advisers [See Section 129 of EA]. However, the law also provides that the issue of confidentiality is not a bar to the admissibility of any document, when relevant, in court. This means a court may still be able to allow production of confidential documents for limited viewing if the said documents are relevant.
- Against Public Interest:-
i. Communication made to a public officer in official confidence shall not be produced in court when the Court considers the disclosure will be detrimental to public interest [See Section 124 of EA];
ii. This is not a closed category and will be dependent on the Court’s finding on whether the production of the documents concerned may be against the public interest.
Even though our civil procedure does not contemplate the existence of Discovery. The Chilean legislation provides for some procedural mechanisms to obtain the exhibition and production of certain documents relevant to a trial, before and during the same.
A first possibility is to go to the civil court before the trial commences, asking to order a person to produce a document that will serve as a basis for the complaint to be presented later. This is what we have called a “pretrial interim measure”.
However, there is also the possibility of requesting, in the course of litigation, the display of documents held by the counterpart or even third parties.
In these cases, the requested person may refuse to exhibit or produce the requested document, wielding mainly 3 arguments: not to exist the requested document or not to have it in its possession; Be the requested document confidential; Not having the document direct relationship with what is discussed in the trial.
There is no full and frank disclosure obligation on the parties and the possibility of discovery is rather limited and therefore, the documentary evidence is generally limited to that brought by the parties to corroborate their claim or defence as applicable. There are some specific rules of disclosure, for example, in the enforcement of IP rights whereby the court has wide powers to order the disclosure (subject to confidentiality) and conservation of evidence in the hands of the defendant or third parties (Enforcement of Intellectual Property Rights (Regulation) Act (Chapter 488, Laws of Malta)).
The courts have discretion to restrict the public nature of cases or of pieces of evidence in the interests of justice (such as, court disclosure of banking documents or other confidential documents). The court shall disallow any evidence which it considers to be irrelevant or superfluous, or which it does not consider to be the best which the party can produce.
Privileged documents: Advice and communications between clients and their lawyers are privileged and cannot be disclosed in court.
Professional secrecy: Professional secrecy obligations may apply. As a general rule if any person, who by reason of his calling, profession or office, becomes the depositary of any secret confided in him, shall, except when compelled by law to give information to a public authority, disclose such secret, he shall on conviction be liable to a fine (multa) not exceeding EUR 46,587.47 or to imprisonment for a term not exceeding two years or to both such fine and imprisonment but this rule may be subject to exceptions laid down in applicable law. For example, according to article 6A(b) of the Professional Secrecy Act, Chapter 377 of the Laws of Malta: “No offence shall be committed against section 257 of the Criminal Code or this Act by ... (b) a person disclosing in good faith secret information to a public authority or before a court or tribunal to the extent that is proportionate and reasonably required for the specific purpose of:
(i) defending himself against any claim with regard to professional work in connection with which the secret information has been obtained by him; or
(ii) initiating and maintaining judicial proceedings seeking the recovery of fees or other sums due to him or the enforcement of other lawful claims or interests.”
Likewise it shall not be lawful to demand the production of any document which is held by a public authority and which is an exempt document under articles 29, 30 or 36(1) or sub-articles (4) or (5) of article 32 of the Freedom of Information Act; or the disclosure of which is prohibited by any other law.
Data protection: Data protection obligations may apply.
Actio ad exhibendum: Article 637 et seq of the COCP, provides for a specific stand alone action to demand the production of particular documents (actio ad exhibendum). This is in practice a limited remedy sought by the plaintiff solely to obtain the production of documents in the following instances:
(a) if such documents are the property of the party demanding the production thereof;
(b) if such documents belong in common to the party demanding their production and to the party against whom the demand is made;
(c) if the party demanding the production of the documents, although he is not the owner or a co-owner thereof, shows that he has an interest that such documents be produced by the other party to the suit;
(d) if the person possessing the documents, not being a party to the suit, does not declare on oath that, independently of any favour for either side, he has special reasons not to produce the documents;
(e) if the documents are public acts, or acts intended to constitute evidence in the interest of the public in general.
In all cases, the party demanding the production of the document must prove that the document is in the possession of the person from whom the production is demanded.
Pursuant to the CCP, in state court litigation, the litigant parties as well as third parties may be obliged to produce physical records under certain circumstances. Generally, the first requirement is that one litigant party requests the production of a specific document which is in the possession of the counter party or a third party as evidence for a particular factual statement.
The court may then order the counterparty or third party to produce the document. Refusal to obey a court’s production order is only legitimate on the basis of a statutory refusal right (i.e., legal privilege, incrimination of a party of close proximity). The consequences of an unjustified refusal to comply with the court’s production order, however, are different depending on the addressee of the order. While the court may enforce the production order against third parties with coercive means, the unjustified refusal of a party to the dispute will be taken into account by the court when appraising the evidence (and may in practice result in negative inferences being made by the court).
In practice, court orders regarding the production of documents are rather hard to obtain in state court litigation. Based on case law, the documents to be produced must be described with sufficient specificity and their significance and appropriateness to prove disputed factual allegations must be shown. Attempts to extract a wide array of unspecified or only very vaguely specified information (‘fishing expeditions’) will generally be dismissed by Swiss courts. Furthermore, the information requested must be shown to be in the possession or under the control of the party to whom the production request is directed. Thus, requests for the production of documents will ordinarily only be successful if the requesting party has concrete knowledge about the existence of a specific document (not necessarily, however, about its content), which, in practice, often proves to be a major impediment.
Further to the described general duty to produce documents based on the CCP, substantive law may provide for information and document production duties in specific areas of law which may be enforced independently by legal action.
Each litigant party shall disclose the documents it used or invoked in the trial (article 450 GCCP). Moreover, documents in the possession either of a litigant or of a third party that are considered useful for the purpose of evidence and have not been used or invoked shall also be disclosed (Art. 450 II GCCP), unless there is a serious reason justifying the non-disclosure. In particular, non-disclosure may also be justified in cases where the addressee of the request would be also excused if he had to testify as a witness, e.g. in cases of secrets that come to the attention of the person during his professional activity (priests, lawyers, notary publics, doctors, pharmacists, consultants of the litigant parties), in case of bank secrecy or in case of confidential information held by public functionaries, in case of personal data protection etc.
The disclosure of documents by a litigant party or a third person may be requested from the opposite party, either with a lawsuit, or with provisional measures or with his pleadings.
According to The Norwegian Dispute Act, each of the parties has a duty to provide the accounts and present the evidence which are necessary to ensure that the factual basis of the case is correctly and completely explained. Each party also has a duty to disclose the existence of important evidence that is not in his or her possession, if the party has no reason to believe that the opposite party is aware of the evidence. This applies irrespectively of which party such evidence favours. A party can also request for access to evidence, but the request needs to be specify in sufficient detail the item of evidence to which the application relates.
There are several exceptions from the duty to disclose evidence. In some cases, the evidence is banned from disclosure, e.g. evidence subject to a statutory duty of confidentiality. In other cases, the court can order disclosure even of trade or business secrets, if the court finds this to be necessary in order to obtain the relevant facts for its decision.
Under Luxembourg law, there is no discovery procedure as such in civil proceedings. In accordance with the adversarial principle, it relies upon each party to file in due time and on a voluntary basis the necessary evidence to justify its claims.
A claimant who contemplates the initiation of a lawsuit may seek evidence or specific documents through summary proceedings. The summary judge may, before any lawsuit is filed, appoint an expert or issue an injunction to produce a document. However, in regards to the latter, this may not be a fishing expedition and the claimant must specifically detail the information he requires (for example a copy of an email exchanged between such and such on a specific date).
A claimant may also gather written witness statements prior to any lawsuit.
In the course of a lawsuit, the judge may also ask the parties to take a position on any factual issues that may be relevant before the instruction phase is closed. Parties may offer evidence for their allegations through testimony.
Communications between an independent lawyer and their client are protected by professional secrecy as provided for under the law which regulates the profession of lawyers, and under the Criminal Code. Communications between independent lawyers are in principle deemed confidential, unless such communications have been labelled as official or are to be considered as official by their nature. In-house lawyers are not covered by the professional secrecy rules.
Article 287 NCPC allows a third party who is ordered to issue a document to take a position on the application concerning him. He can apply to the judge who rendered the decision to ask him to revoke or amend the decision. To do so, the third party in the proceedings must invoke a legitimate reason to oppose the forced production of documents. It should be noted that this remedy is also available to the parties to the proceedings.
In regards to a party to the proceedings, as Luxembourg does not know of discovery process, a party will only disclose documents that comfort its position. It is not required to disclose documents that would damage its position.
Federal procedural rules require a mandatory meeting (a “Rule 26(f) conference”) pursuant to which litigants must meet and confer to (i) discuss the nature and basis of their claims and defenses, and possibilities for a prompt settlement of the case, (ii) make or arrange for the mandatory disclosures required by the procedural rules and (iii) develop a discovery plan. At or within 14 days after the parties’ Rule 26(f) conference, parties must make the following disclosures: (i) the name, address and telephone number of each individual likely to have discoverable information, (ii) a copy of all documents and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims for defenses and (iii) a computation of each category of damages claimed by the disclosing party.
Once discovery commences, the parties can serve requests for production of documents on one another. A party must respond to requests for production by providing responses and objections indicating what the party agrees to produce, and then producing responsive, non-privileged documents.
Attorney-client communications protected by the attorney-client privilege and materials prepared in anticipation of litigation under the work product doctrine may be withheld; however, the withholding party may be required to log such documents for the other side. Assuming good cause can be shown, trade secrets and other types of confidential business information may be protected from abuse or misuse resulting from the discovery process through the issuance of protective orders.
Disclosure in commercial litigation is limited to those documents referred to by the parties during the proceedings. Such documents must be disclosed to the court and other disputing party(ies). Courts may order disclosure of other documents. There is no exception under Iranian law if disclosure is required during the proceeding.
In general, obtaining disclosure prior to the proceedings is not available.
There are no special rules or established practices in respect of electronic disclosure.
There are no discovery or disclosure procedures comparable to common law systems in the Dutch judicial systems. There are, however, instruments available for obtaining information / documents from third parties.
Interested parties may request inspection of (or copies or extracts from) documents, including electronic documents, from those who have these documents at their disposal. This action may be instituted in summary proceedings or as an interim action in ongoing proceedings. A request can be granted provided (i) the requesting party has a legitimate interest in obtaining the information; (ii) the existence of the requested specific documents has been established to a sufficient extent (in order to prevent fishing expeditions); and (iii) the records concern a legal relationship to which the requesting party is a party.
The rules on disclosure acknowledge professional privilege. A request for inspection of documents may also be refused on the ground of serious reasons which could result in a privilege based on a statutory duty of confidentiality. A request may further be refused if the proper administration of justice is also guaranteed without the requested information.
In general, it is incumbent upon each party to present such evidentiary documents as it has available to support its claims. If a document is not in the possession of the party requiring it and assistance from the court is required, judge can order that whoever is in possession of the document surrenders it, even through enforced recovery.
The Constitution of Ecuador establishes an exception by guaranteeing professional secrecy. Likewise, the new Commerce Code issued on May 29, 2018, states that the advice from professionals assisting businessmen is subject to confidentiality.
The Commerce Code restricts the examination of a businessman’s accounting exclusively to accounting entries directly related to the litigation. There are exceptions to this rule in cases of bankruptcy, property held in common, corporate liquidations, and abuse of legal standing (corporate veil) to the detriment of third parties, where a general examination of the accounting may be ordered.
Confidential documents are classified as such in the case file to prevent their being freely reproduced by third parties. Private persons may object to the disclosure of information they deem confidential, and it is incumbent upon the judge whether or not to order them to do so.
There are rules governing the treatment of privileged and confidential information, especially information kept in banks or public institutions, the circulation of which is restricted under the law.
In brief, the parties may submit to the court any documents to support their claims, and the court may also oblige a party to submit a document even if privileged.
There is no general rule on the disclosure. As it is mentioned before the parties may require any document included in the lawsuit to profound their standpoint. The parties may also make a motion for the court to oblige the other party or third party holding the information or documents to which they have no access. In this case the party must prove their incapacity to acquire the document by their own means. If the latter refuses or avoids presenting the evidence, the fact subject to proof is considered proved.
There is however the rule of attorney-client privilege, that preserves the communication between the attorney and the client, including also any information or documents that the client shared with the attorney, the content and nature of the council given by the latter, as well as the information and evidence (materials, carriers) that the advocate acquired during the course of the advocacy activity. Such information can be disclosed strictly in cases provided by law, such as if the client gave their permission, it is required in the lawsuit against the client or in the disciplinary hearing to profound or defend their arguments, it is required by the law «On Combating Money Laundering and Terrorism Financing» etc.