Portugal
Answer ... Unlike in common law jurisdictions, there is no discovery process in Portugal. Portuguese law also does not allow other types of pre-trial investigations, fishing expeditions or indiscriminate requests for the production of evidence. A party to litigation is therefore under no obligation to make available evidence which either supports or undermines its case to the other side.
Notwithstanding the above, both claimants and defendants must indicate the evidence on which they base their factual assertions. In addition, the court may order the production of specific documents at the request of each party.
Production requests are usually made between the pleadings stage and the preliminary hearing, and are subject to the court’s decision. All documents disclosed must be formally submitted in the proceedings and are subject to the adversarial rules. This means that no production orders can be ordered by the court without the opposing party making submissions to the court regarding the production request (eg, with respect to its proportionality or temporal scope).
The timing of the production of documents is set by the court and may vary according to the type and the number of documents to be produced. Judges are usually receptive to reasonable constraints invoked regarding the production of documents.
The court may also order the production of documents or information of its own motion at any stage of the proceedings.
In claims for breach of competition law, claimants can also request the production of specific documents if these can be identified to reasonable degree.
Any such request must pass the applicable legal tests – namely relevance, specification, and proportionality. Pre-litigation disclosure requests must also pass the ‘plausibility of the underlying right’ test. Stringent safeguards to protect privacy sensitive and commercially sensitive information can be put in place where applicable.
The court cannot, however, order the disclosure of documents containing leniency statements or settlement submissions (under the prohibition contained in the Private Damages Act).
Portugal
Answer ... See question 7.1.
Portugal
Answer ... Any facts, documents or information obtained in breach of attorney-client privilege will not be admitted as evidence in court proceedings. Correspondence and documents exchanged between lawyers and their clients cannot be seized by the court unless they relate to a criminal offence in proceedings where the counsel is a defendant.