Key takeaways
Request for production of evidence, Art. 49 UCA, R. 190 RoP, must be based on specific facts
As a general rule, an order to produce evidence (e.g. source codes) presupposes that a fact is relevant to substantiate claims or objections. For this purpose, the applicant must state in detail which specific fact he wishes to prove, by what means and for what reason. The burden of proof of the prerequisites for a production order lies with the applicant.
Specific facts must be contested and relevant for the case
No evidence is required for a fact that is not effectively contested, R. 171.2 RoP. In this case, there is no need to produce evidence. If the fact is not relevant to the claims (or objections) being pursued, an order to produce evidence is generally disproportionate. However, the parties have the right to determine the evidence to be submitted, Art. 43 UPCA. This right should not be prejudiced but may be subordinate to the opponent's interest in not being burdened with the production of evidence and, in particular, their interest in protecting confidential information.
Applicant must have exhausted all available, reasonable evidence
The applicant must have exhausted all means of evidence, which are reasonably available to them. Whether the applicant has submitted all available evidence to sufficiently substantiate his claims (or objections) and, consequently, whether an order to produce evidence against the opponent or a third party can be considered, must be assessed by weighing all the circumstances of the individual case and taking into account the interests involved. Where means of evidence are available only through paid access, they will in principle be reasonably available unless the applicant can demonstrate special circumstances which would make this unreasonable.
Order is at the court's discretion, taking into account the principle of efficient proceedings
The order is made at the discretion of the court. In exercising this discretion, the circumstances of the case must be taken into account, having regard to the interests of both parties and the principle of the efficient conduct of proceedings. With regard to the procedural powers of the Court or the Judge-Rapporteur, there is a margin of discretion in deciding on a request for production of evidence, including the determination of the order in which the matters in dispute are to be decided. In exceptional cases, a previously requested and duly substantiated request for the production of evidence, the relevance of which only becomes apparent to the court during the oral hearing, may lead to an order for information and an adjournment of the hearing according to R. 114 RoP.
Division
LD Mannheim
UPC Number
UPC_CFI_471/2024, App_46519/2024, ORD_47065/2024
Type of proceedings
Infringement proceedings (proceedings on the merits)
Parties
Claimants: DISH Technologies L.L.C. and Sling TV L.L.C.
Defendants: AYLO PREMIUM LTD, AYLO FREESITES LTD, BROCKWELL GROUP
LLC, BRIDGEMAZE GROUP LLC, AYLO Billing Limited, and AYLO BILLING
US CORP
Patent(s)
EP 2 479 680 B1
Body of Legislation / Rules
Art. 43, 59 UPCA, R. 114, 171.2, 190 RoP, Art. 6 (1) Enforcement Directive
LD_Man_CFI_471_2024_ORD_47065_2024_de Download
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.