Officiële Toelichting

P-18A All legal systems recognize various privileges and immunities against being compelled to give evidence, such as protection from self-incrimination, confidentiality of professional communication, rights of privacy, and privileges of a spouse or family member. Privileges protect important interests, but they can impair establishment of the facts. The conceptual and technical bases of these protections differ from one system to another, as do the legal consequences of giving them recognition. In applying such rules choice-of-law problems may be presented.

P-18B The weight accorded to various privileges differs from one legal system to another and the significance of the claim of privilege may vary according to the context in specific litigation. These factors are relevant when the court considers drawing adverse inferences from the party's failure to produce evidence.

P-18C Principles 18.2 and 18.3 reflect a distinction between direct and indirect sanctions. Direct sanctions include fines, astreintes , contempt of court, or imprisonment. Indirect sanctions include drawing adverse inferences, judgment by default, and dismissal of claims or defenses. A court has discretionary authority to impose indirect sanctions on a party claiming a privilege, but a court ordinarily should not impose direct sanctions on a party or nonparty who refuses to disclose information protected by a privilege. A similar balancing approach may apply when blocking statutes hinder full cooperation by a party or nonparty.

P-18D In some systems, the court cannot recognize a privilege sua sponte, but may only respond to the initiative of the party benefited by the privilege. The court should give effect to any procedural requirement of the forum that an evidentiary privilege or immunity be expressly claimed. Accord ing to such requirements, a privilege or immunity not properly claimed in a timely manner may be considered waived.