Dutch law does not know a general rule of disclosure as applies in the common law system.
There is an obligation for the parties in legal proceedings to disclose the facts and present the documents which are of relevance for the decision, fully and truly, in/with the written submissions that they present. The court may also order a party to present certain specific documentation or information (including electronic information and the like, hereinafter jointly "information"). However, the sanction in case of non-compliance herewith (only) is that the court may "draw the conclusion as it deems appropriate". The court has no weapons other than "drawing its conclusions". Those can range from looking at the further statements from that party even more closely to giving the burden of proof to that party or to dismiss a claim or defense. The court cannot declare a party in contempt when he does not comply with the aforementioned obligation or court order. Also, it is up to the judge to decide whether or not a party has breached this obligation. This can be done ex officio without a party having asked the court to do so, and without hearing the parties before doing so, which will not be considered a surprise decision.
A party may ask the court to hear fact or expert witnesses, both before proceedings are pending and during proceedings. Witnesses are compelled to tell the truth. But when a witness lives outside the Netherlands the only way forward would be to ask for a commission rogatory – provided the witness lives in a contracting country. A witness cannot be compelled to present documents.
Since a decade or so there is a possibility to ask the court to order a party to disclose certain information. This is known as the so called "exhibition duty". However, there is a number of restrictions to this duty: the order can only relate to sufficiently identified/identifiable information: fishing expeditions are not allowed; a party must have a "legitimate interest" (i.e. the interest of being able to provide evidence); the information must relate to a legal relationship to which the requesting party is a party; this instrument cannot be used when there are other ways to obtain evidence.
Parliament is presently discussing amendments to this exhibition duty. The new law will not be structured as the common law disclosure procedure and will remain of a more limited nature. However, for Dutch law the new law will broaden the possibilities.
For one, the instrument will no longer be an ultimum remedium: also when there are other ways to obtain evidence, this instrument may be used.
The explanatory memorandum states that, where in the present text the petitioner must explain in some detail why he would be entitled to see the information, the judge under the new law could only use his discretionary authority to dismiss the request when this would be contrary to proper procedure, abuse of right or when there would be other important objections. These are the criteria which presently qualify for (provisional) requests for hearing of fact or expert witnesses; case law in respect of those shows that a court seldom refuses a request.
Under the new law also a request could be made in respect of information which third parties possess. Such third party may be called to join the pending proceedings for the purpose of the request. Under the present law this is not possible. Where third parties are involved, though, the judge would have to exercise more discretion. How that will work out in practice is as yet unclear. In any case documents which are privileged (such as attorney-client correspondence) remains privileged.
A party who so receives documents is bound to keep the information confidential, as is the case in the English law system, although the latter seems more nuanced than the text in the new law.
New in the law is that a request can also be by petition done outside pending proceedings, comparable to the present preliminary fact and expert witness procedure. However, other than in those procedures, not only the opposing party but also involved third parties shall be heard. And also contrary to such procedures, appeal against a positive decision is possible.
The present practice of attaching evidence ex parte will remain unchanged.
When the project of law will become law, the possibilities under Dutch to obtain evidence increase, but are still a far cry from the anglo-saxon disclosure. Whether this is a good thing depends on the side one is on...
This article originally appeared in the Global Legal Post.
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