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 & Dispute Resolution
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.