How to catch evidence in Dutch civil procedures without fishing expeditions

Introduction
Conditions
Restrictions
Comment

Introduction

In the Netherlands the general discovery trial is an unknown phenomenon. However, certain documents may be obtained pursuant to Article 843a of the Dutch Code of Civil Procedure (DCCP). This article outlines how this procedure works.(1)

Pursuant to Article 843a of the DCCP, a party with a legitimate interest may request from another party a copy, extract or inspection of certain documents regarding a legal relationship to which it or its predecessor is a party. A party may submit the claim during pending proceedings or in separate proceedings. Article 843a of the DCCP lays down three requirements that need to be fulfilled before the court will uphold the claim for disclosure.

Conditions

Legitimate interest
The applicant must have a legitimate interest in the disclosure of the requested documents. The objective of Article 843a of the DCCP is, under certain circumstances, to enable the applicant to gather evidence that is not or is no longer in its possession. Consequently, gathering (relevant) evidence to support an argument in pending proceedings constitutes a legitimate interest. The condition of having a legitimate interest has a broad scope. Gathering information to prepare a possible claim may also constitute a legitimate interest.

It is up to the applicant to provide facts and circumstances that support its legitimate interest in the disclosure. There is no clear rule to determine when this requirement is satisfied. Case law on this point is highly casuistic.

Specific documents
The claim for disclosure must relate to specific documents. As discussed above, as there is no general discovery trial in the Netherlands, the applicant must specify the documents that it wants to be disclosed – fishing expeditions are not allowed. Applicants need not name or date every document that they request. However, this is recommended, where possible, as specific requests are more likely to succeed. In 2012 the Supreme Court ruled that when a party requests all correspondence on a certain subject, it is sufficient for the party to clearly delimit the subject by providing a description of the relevant parties or the underlying case.(2) For this condition to be met, it is important to specify the requested documents and to set out their relevance relating to the legitimate interest (which in many cases is to substantiate a claim in legal proceedings). Casuistic case law clarifies which description of requested documents is sufficient in which circumstances. If it is sufficiently plausible that the requested document does not exist, the court will reject the claim.

Legal relationship
The claim for disclosure of certain documents must relate to a legal relationship to which the requesting person is a party. This legal relationship may also consist of a wrongful act. The Supreme Court has previously ruled that the existence of the legal relationship must be sufficiently plausible. This was already the criterion for the procedure to obtain evidence concerning breaches of intellectual property, but it has now also become the criterion for Article 843a of the DCCP.

Restrictions

Article 843a of the DCCP sets out three restrictions. If a restriction applies, the court will deny the claim. The restrictions apply if:

• the party has a duty of confidentiality by virtue of their office or profession, such as doctors, notaries or lawyers. Any documents covered by their professional duty of confidentiality may not be claimed in a procedure under Article 843a of the DCCP;
• there are compelling reasons why the holder of the documents should not comply with the claim for disclosure. It is up to the court to decide whether a compelling reason exists. The holder should substantiate its claim and its interest in not having the documents disclosed;
• there is reason to believe that the proper administration of justice can also be guaranteed without the requested documents being disclosed. For example, if the evidence may also be obtained through witness examination, the claim to disclose documents which provide the same evidence can be denied.

If all of the requirements are met and no restrictions apply, the court will allow the claim for disclosure of a copy, extract or inspection of the requested documents. It is also very common to seize evidence pursuant to Article 730 of the DCCP in conjunction with Article 843a of the DCCP, thus preserving evidence and making it impossible for the other party to tamper with it.

Comment

Discovery trials or fishing expeditions to obtain evidence are not part of the Dutch legal system. However, under certain circumstances, the court may allow a claim for the disclosure of certain documents.

For further information on this topic please contact Eliana Tuijn at AKD by telephone (+31 88 253 5000) or email (ETuijn@akd.nl). The AKD website can be accessed at www.akd.eu.

Endnotes

(1) The DCCP has a separate procedure for obtaining evidence concerning breaches of intellectual property.

(2) Netherlands Supreme Court, ECLI:NL:HR:2012:BW9244.