Unlike many Anglo-American based jurisdictions, the concept of disclosure/discovery is unknown to the Dutch legal system. Consequently, it is possible that there is insufficient documentation to substantiate your side of the case. If you have doubts about initiating proceedings because you lack the necessary evidence, there are several ways to acquire further evidence. Dutch law contains several provisions that allow a party to get more proof. In this blog, four options are explained.
It is possible to:
1. request access to certain documents during or outside proceedings (Article 843a of the Dutch Code of Civil Procedure);
2. demand disclosure of lost documents (Article 843b of the Code of Civil Procedure);
3. seize the evidential material in order to prevent it from being destroyed;.
4. cross-examine witnesses before or during proceedings in order to get a better insight to the chances of proceedings and to secure proof.
In addition to these options, it is also possible to request an expert examination, or a court visit to a location if this is important for the understanding of the dispute. However, these options are beyond the scope of this blog.
It is legally possible - both during and outside proceedings - to demand access to certain documents. This requires filing an application at the court and/or presenting a (counter)claim. Legal requirements that must be met are:
1. a 'legitimate interest' to the data must be demonstrated;
2. the request to access certain documents has to concern specified data;
3. the data must relate to a legal relationship between parties involved.
The other party/third party can defend itself against such a request by arguing that there are compelling reasons not to grant access to the requested documents. For example, it can argue that the documents involve business secrets. However, if the court decides to grant the request, notwithstanding the raised defence, the opposing party must comply with the court's decision.
Another possibility under Dutch law is to claim access to documents that are lost (Article 843b of the Dutch Code of Civil Proceedings). It is not relevant how these documents have been lost. For such a request to be admissible, the documents in question must be:
1. documentation that can serve as evidence;
2. the other party must be able to produce this documentation
3. the claimant must have a 'reasonable' interest in obtaining the documents;
In short, the claim must be adequately supported, meaning one has to indicate which documents have been lost, to which facts these documents relate and which documents contain more information about these facts. Again, the opposing party is allowed to put forward a defence to such a claim.
If an involved party refuses to grant access to documents that should be accessible, or if one has merited fears of a party destroying evidence, it is often possible to attach relevant documents. In the event of an application for permission to attach evidence, it must be sufficiently convincing that the underlying claim merits the attachment of documents that can act as proof. It is important to note that an application is followed by an ex parte decision. This means that the judge reviewing the request bases his or her judgment on the narrative of the applicant. The other party is not heard.
The seizure of evidence secures documents. However, a seizure is executed by a bailiff (often assisted by an IT expert) outside the view of the applicant. A seizure in itself does not give the application authorisation inspect/review the attached documents. In order to obtain access to the documents, separate proceedings have to be completed, in which the opposing party can defend itself against the request to inspect the documents.
Article 186 of the Dutch Code of Civil Proceedings allows examination of witnesses both during and before proceedings. The following only touches on the possibility of a having a witness hearing before the main proceedings.
For a preliminary witness examination to take place, an application must be submitted. The application has to state which witnesses are to be heard and for which purpose. As most preliminary witness examination serve to establish facts relevant to the case, the application must be sufficiently clear as to the factual circumstances and the relevance of the witnesses' testimony.
An application can be rejected on any of the four following grounds:
1. lack of interest;
2. abuse of rights;
3. conflict with due process; or
4. another important interest.
To clarify, an application can be rejected if the court decides the application is only made to cause damage to the other party, or if the court deems there is no real interest to have a witness heard.