What, if any, are the rules for disclosure of documents? Are there any exceptions (e.g. on grounds of privilege, confidentiality or public interest)?
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)).
Moreover, 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).
Privileged documents: Advice and communications between clients and their lawyers are privileged and cannot be disclosed in court.
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.
Each party to the action must disclose to all other parties all documents relevant to the issues arising in that action, which are or at any time have been in the former’s possession, custody or power. This is regardless of whether any such documents could adversely affect or support any party’s case. Crucially, the duty of disclosure continues throughout the proceedings. Parties must file and serve on all other parties to the action a list of documents, and an affidavit verifying such list, by the date stipulated by the Court.
Documents to be disclosed are not restricted to hard-copy documents in writing. Documents of all forms must be disclosed, which includes electronic documents, discs, tapes and films (which may contain visual images, sounds or other data).
If one party believes that any other party has not made adequate disclosure, the former may apply for specific discovery of documents.
Documents subject to legal advice privilege or litigation privilege need not be disclosed. A party may claim that relevant documents are subject to legal advice privilege if they contain his communications with his lawyers, which were made for the purpose of receiving legal advice. Alternatively, a document may be subject to litigation privilege if it contains information or advice obtained for the dominant purpose of litigation, at a time when a reasonable prospect of litigation already existed. In these cases, relevant documents need not be disclosed on grounds of privilege.
However, relevant documents which may be deemed confidential, but which are not subject to legal advice privilege or litigation privilege, must still be disclosed to the other parties to the action.
Where a party inadvertently allows a privileged document to be inspected, the party who inspected it may only use it or its contents with the leave of the Court.
Public interest exception
Order 24, Rule 15 of the ROC expressly provides that any rule of law which authorises or requires the withholding of any document, on the ground that its disclosure would be injurious to the public interest, prevails over the rules of disclosure.
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:
- the evidence is relevant to the case;
- a requesting party is unable to get the evidence by itself;
- 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.
There is no general disclosure requirement under Spanish law.
However, in some limited circumstances, a party can request the disclosure of evidence provided that the requested documents are relevant and material to the case and presumed to be in the counterparty’s possession. The party requesting the disclosure must include a copy of the document requested or, if that is not possible, a precise description of it.
Recently, a new and specific regulation on access to the sources of evidence applicable only to the procedures of claims for damages derived from antitrust infringements has been incorporated to the Spanish Civil Procedure Act by the amendment introduced transposing into Spanish law Directive 2014/104/EU on claims for damages arising from antitrust infringements.
Likewise, if some requirements are met, privileged information the publicity of which could harm the company, or relating to intellectual property can be redacted from documents, so that the other party can defend itself and this information can still be kept private.
According to the Spanish Lawyers’ Code of Conduct and Ethics (or Código Deontológico de la Abogacía Española), as a general rule attorney - client communications are privileged as well as communications between counsels.
Indonesian laws do not recognize discovery process or the obligation to disclose any documents.
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.
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.
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.
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.
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.
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.
A party to a claim may request voluntary discovery (disclosure) from their opponent of documents which are relevant and necessary to the fair determination of the issues in dispute. If the categories of discovery cannot be agreed voluntarily between the parties, an application may be made to the court for an Order for Discovery. Any application for discovery must be brought by way of motion on notice and supported by a grounding affidavit setting out the categories of discovery sought and specific reasons why each category of discovery is deemed necessary.
Legal advice and litigation privilege may be claimed over documents in certain circumstances. The existence of any such privileged documents, if relevant to the categories of discovery, must be disclosed by way of listing when making discovery. However, where a claim of privilege is made (and maintained), it is not necessary to produce the said documents to the other side.
There is no exemption from disclosure on the grounds of commercial sensitivity, although commercially sensitive information which is not relevant to the matters in dispute may be redacted in certain circumstances.
During the pleading phase and upon a respective request of a party, the court can order the other party to produce specific documents. In order to prevent fishing expeditions, the requesting party needs to specify the document in the opposing party's possession in detail and explain to the court how it will be relevant for the merits of the case. Such document production request are though not similar large scale pre-trial discoveries as known in common law jurisdictions.
If the document to be produced contains information or data which could harm the legitimate interests of a party or other individuals, in particular personal data or business secrets (e.g. information on customers, the company's financials, product secrets, etc.), the court must take the necessary measures to protect such interests. It is up to the affected party to request these measures, which are then ordered at the court's discretion. The court in particular can exclude the opposing party from having access to the documents submitted as evidence, or make only excerpts available. However, the opposing party needs to be informed on the core content of the documents and is entitled to ask supplementary questions. The court may also decide that only an independent expert has access to certain documents, and that the parties must direct inquiries on the content of the document to such expert. Other measures, if deemed practical, are permitted as well.
The parties and third persons have a limited or absolute right to cooperate under certain conditions, e.g. if subject to professional secrecy (doctors, lawyers, etc.) or if there is a risk for a third person to expose close family members to civil or criminal liability. Explicitly no exception exists however for the case, where such documents expose the party itself to such liability. In such case the party enjoys no right to refuse disclosure, and in the event of refusal, the court is allowed to interpret such failure to cooperate to the party's disadvantage.
According to Swiss law, in-house lawyers are not subject to professional secrecy, and thus not excepted from the duty to cooperate in the taking of evidence. This rule is however subject to review by the legislative in order to avoid discrimination of Swiss cooperation abroad.
Further exempt from the duty of disclosure upon court order is correspondence protected by the attorney-client-privilege. Neither the attorney, nor the client/party, nor third parties, have a duty to disclose privileged correspondence to the court. The privilege not only includes letters and e-mails, but also memos, strategy papers, draft agreements, draft settlement proposals or the like. The protection goes only so far, as it covers correspondence specifically in context of an attorney's activity in representing or consulting clients. Other activities sometimes carried out by lawyer, such as board memberships, asset management or clerk services, are not privileged.
Under Chilean law, there is only one special case where the parties, or even a third party, can be enforced to exhibit documentation on trial. The documents whose exhibition is requested shall be directly related to the discussed issue and they shall not be secret or confidential (article 349 of the CPC).
However, disclosure in Chile is not as effective as in other jurisdictions since: (i) a party may not exhibit documentation that could be considered confidential, and (ii) the court does not have sufficient authority to sanction the non-disclosure.
Finally, article 348 bis of the CPC states a special rule concerning the disclosure of electronic documents, by which the court will summon the parties to a documentary perception hearing.
The interested party on including such documents as evidence shall provide the electronic devices or the necessary means for its proper perception, otherwise, they shall be deemed not filed.
There is no general obligation to disclose documents. However, a party may request the court to order the counterparty or a third party to disclose specific documents. In short, a request for document production will be granted if the documents can be clearly identified (fishing expeditions are not permitted), the party is in possession of the documents and they can be assumed to serve as evidence in the case. Certain documents are excluded. The rules on exclusion are complex but the main categories include privileged communication between a lawyer being member of the Swedish Bar Association (and certain other officials) and his client, trade secrets (unless there are extraordinary reasons for disclosure) and jottings or other personal notes (again, unless there are extraordinary reasons for disclosure).
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 professional secrecy.
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 disclosure of documents in Saudi Arabian proceedings. Judges have the discretion to order the production of government records or documents in the possession of third parties.
As stated in 13 above, the parties are under a duty to give access to objects etc. (including documents) that may constitute evidence in legal proceedings, subject to the limitations in the rules on prohibited evidence and immunity. A party shall also disclose the existence of important evidence of which he or she has no reason to believe that the opposite party is aware. This applies irrespective of whether such evidence favours the case of the party itself or favours the opposite party's case. There are several exceptions from the duty to disclose evidence, such as professional secrecy for certain professionals (such as attorneys, doctors and priests), duty of secrecy for civil servants, business or trade secrets, evidence of character and credibility (unless this is of material importance to the court’s decision) and improperly obtained evidence.
Federal procedural rules require a mandatory meeting (a “Rule 26(f) conference”) pursuant to which litigants must meet and confer (i) to 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.
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.
All documents which are or have been in the control of the client, and which harm or support its or another party’s case, must be disclosed in litigation. This includes privileged documents. However, a party can withhold privileged documents from inspection by the other side; so even though it 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 and common interest privilege.
The rules for disclosure documents are stated in the Danish Administration of Justice Act Section 298-300. The rules vary according to whether a party or a third party is required to submit documents.
If a party wants to refer to documents in the possession of another party to the court, the first party can make a request to the court stating 1) the facts to be proven by the documents and 2) the reasons on which he supports the assumption that the other party has the documents in its possession, cf. section 300 of the Danish Administration of Justice Act. Upon such request the court may order the other party to submit the requested documents available to the party if the requesting party intends to invoke these during the case, unless submission of such documents would disclose circumstances about which the party would be excluded or exempted from giving testimony. Thus, the court may decide that documents or parts of documents without relevance to the court and which the other party does not want to submit shall not be submitted or shall only be submitted in part. The courts do not look favorably on "fishing expeditions".
For a third party the duty to disclosure documents will lapse in the same situations as regards for witnesses (see below, question 15). This includes professional secrecy and other duties of silence and if it might damage the third party or his/hers next of kin.
The Danish "style" differs from the "discovery-style" used in for instance the US. The Danish style is muchless extensive than discovery, although it is possible to request the court to order the opponent to submit specific documents and thereby expand the duty to disclose documents.
Parties may decide to produce documents to support their claims. A party who refers to a document must disclose it to any other party to the proceedings.
There is no discovery process under French law.
Where a party intends to refer to a document that it does not have, it may, however, ask the court to order another party or a third party to disclose the document. The court’s order may also impose a daily penalty (astreinte) until the document is disclosed. Disclosure of a document may be denied where a legitimate impediment (e.g. professional secrecy such as legal privilege) is raised to oppose the request.
Where there is a legitimate reason to preserve or establish, prior to any legal proceedings, the evidence of the facts on which the outcome of a dispute may depend, any legally permissible preparatory enquiries can be ordered at the request of any interested party (e.g. search & seizure orders).
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.