17 Summary

Documents may provide an important source of evidence. This research investigates the question when one is entitled to obtain documents. In a nutshell, the topic of this research can be formulated as follows:

The history of the disclosure obligation under the Dutch law of evidence goes back to the drafting of the Dutch Civil Code, which included elements of the law of evidence at the time. In the bill for the Dutch Civil Code, the legislator initially envisaged a broad obligation to produce documents. Eventually when the legislative proposal was passed in 1838, however, this obligation merely referred to the so-called "common title" ("gemeene titel"). This concept was interpreted such that only a (co-)owner could request a document.

Nearly a century later a tendency seemed to emerge towards a broader inter-pretation. The Gratama bill from 1920 pleaded for a broader obligation to produce information. A ruling by the Supreme Court of the Netherlands in 1921 changed the interpretation of the article about compulsory disclosure, implying that in order to enforce disclosure of documents it would suffice for the petitioner to claim any right to the title as means of evidence. The broader interpretation, however, has never really taken root. The bill was never passed. Neither has the ruling ever brought compulsory disclosure to bloom: there was a clash of opinions about the exact meaning of the ruling, and in practice the possibility to claim documents was hardly ever used. As a result, compulsory disclosure lingered on until the drafting of the current Section 843a Dutch Code of Civil Procedure.

At first sight, the enactment of the new law of evidence in 1988 brought no change to its lingering existence. On the occasion of the enactment, the part of the law of evidence enshrined in the Dutch Civil Code was moved to the Dutch Code of Civil Procedure, and Section 843a Dutch Code of Civil Procedure was drawn up, in which - basically - the concept "common title" was replaced by options to deliver evidence. As far as compulsory disclosure is concerned, however, the parliamentary history does not show such a need for a broader scope. At first sight this is not entirely surprising, given that, seemingly, all that happened was shifting the legal framework for compulsory disclosure that had formed part of the Dutch Civil Code since 1838 to the Dutch Code of Civil Procedure. Besides, the parliamentary history emphasized the relativity of compulsory disclosure: the comment was made that, in principle, the petitioner of a requested document ought to know its contents already.

In 2002 the article about compulsory disclosure was amended for the second time. In the review the right to obtain documents was curtailed yet again by stating that proof ought to be obtained with other means of evidence, as a rule. At the same time, in 2002, however, the scope of compulsory disclosure was broadened by expanding it to as well as to data recorded on data carriers. The parliamentary history did not show much substance in this respect, so it hardly pushed the issue to a higher level and provided only little help when setting the boundaries of the right to obtain documents.

While the history of the provision concerning the power of the parties to request documents goes back to 1838, the power of the court to request documents from the parties at its own initiative, as enshrined in the law, is from a much more recent date. The Civil Code of 1838 did not contain such power: the provision was incorporated into the law in 1989 and 1990, and became a general provision during the review of civil litigation law in 2002. Here, too, the legal history is consistently shallow, which hardly sheds any light on the meaning of the article.

As Dutch law has only limited experience with requests for documents, it may prove worthwhile to investigate how experience was gained in a country that was presumably familiar with requests for documents for a much longer time. This is why I have taken a closer look at American law. In 1938 American law gradually started to give litigants the option to request "designated documents" via interven-tion of the court as part of the so-called pre-trial discovery. It was expected that these kinds of requests would merely refer to documents whose contents were more or less known already, and requests for documents required judicial intervention and "good cause". After amendments in 1948 and 1970, this system has changed such that a litigant could claim access to adequately specified documents without intervention of the court, including but not limited to computer files and movable goods. For such access it suffices, in principle, that the documents be adequately defined and that they refer to a subject matter of a claim or defence.

While pre-trial discovery of documents seemed to be overlooked when drafting the evidential procedure in 1938, it has become the most used form of discovery and at the same time it proceeds successfully and at acceptable costs, in general. However, there are exceptions, in which the costs of discovery become overbearing.

The number one challenge under American law is to cut back cases that risk becoming frivolous. In order to bring cases back under control, it was determined in 1980 that discovery is not permitted if it is disproportionate, basically meaning that it bears insufficient relevance to the subject matter of the dispute. Furthermore, lawyers themselves must declare that the request for documents meets the require-ments with respect to discovery. Finally, more room was given over time to court involvement, for instance because the court is involved in the mandatory talks between the parties on how to set up the discovery, which must be held before requesting any means of evidence.

In addition to the obligation to produce documents upon request ("discovery"), another obligation was introduced in the nineties to produce documents at one's own initiative ("disclosure"), and as a result the concepts discovery and disclosure each went their separate ways. The disclosure obligation initially referred to all documents and, therefore, also to documents that could prove harmful to the case of the party who must produce the documents. However, so many and such a diversity of exceptions were made to the obligation, that it was decided at a later stage to redefine the obligation as an obligation that merely referred to documents supporting one's own case.

Neither the obligation to produce documents at one's own initiative ("dis-closure") nor the obligation to produce documents upon request ("discovery") is unlimited, even apart from the proportionality requirement. In practice it is important for instance that no information needs to be submitted that has been com-piled to prepare the hearing of a dispute, in principle. Furthermore it is important that expert opinions cannot be obtained if the receiving party itself will not rely on them.

While the USA has already approximately 70 years of experience with pre-trial discovery of documents, the legal concept did not come to full bloom in the Netherlands until the amendment on 1 January 2002. In the following chapters I will comment on the development that has taken place in the Netherlands since then. Now and then I will go back to the development in the USA to show similar-ities and differences.

While in the early 19th and early 20th century compulsory disclosure could not reach its full growth, there seems to be a better breeding ground for compulsory dis-closure thanks to the amendment of 2002. After all, the emphasis is placed more than before on the parties' obligation to produce information and on their obligation to render their assistance. At the same time, while emphasizing such obligations, it remains important to specify where an obligation to produce documents begins and where it ends.

In a bid to find solid basis for setting the boundaries, consideration was given to the provisions in Section 21 Dutch Code of Civil Procedure concerning the obligation to speak the truth, and to the provisions in Section 6 ECHR. Section 21 Dutch Code of Civil Procedure, however, is not sufficiently concrete for setting any boundaries, while Section 6 ECHR generally is not relevant. EU legislation does not touch on enough subjects to have sufficient relevance. In other words, the basis for setting the boundaries will have to be found in Dutch law.

When defining the scope of the obligation to produce documents, it is imperat-ive first of all to go back to Section 22 and Section 843a Dutch Code of Civil Procedure, given that an adequately concrete general framework is missing. I think that for the boundaries and criteria it is important to seek harmonization with Section 843a Dutch Code of Civil Procedure, which contains the most detailed procedure and, if and insofar as Section 843a Dutch Code of Civil Procedure does not provide enough basis, it is important to seek harmonization in all other respects with what applies to other means of evidence. In the following chapters I will make an effort to present a coherent view on that basis. When discussing the legal procedure I will comment on the question if there are reasons to assess the decision at the request of a party against other requirements than the ex officio court order to produce documents.

Even though there seems to be breeding ground for an expansion of compulsory disclosure, the wording of the article does not make expansion easy at first sight. After all, Section 843a Dutch Code of Civil Procedure has a mysterious, cryptic wording. Initially, this cryptic wording provided room for all kinds of discussions on whether or not designated documents were precluded from compulsory dis-closure.

I think that meanwhile all of these discussions have been settled in such a way that disclosure of documents can be claimed for any legal action, any data carrier, regardless of the parties involved in the data carrier and also towards any party who has documents at its disposal or can lay hands thereon. This liberal scope immediately appears appropriate, taking into account that the law explicitly deter-mines that evidence can be produced by all lawful means, and also that in 2002 the legislator had a broader interpretation in mind for the disclosure obligation, by expanding the definition of documents to include data recorded on data carriers. What matters is whether or not disclosure of documents can actually be enforced. This will be discussed in the following chapters.

To answer the question if a party can indeed gain access to documents it is important to verify, pursuant to Section 843a Dutch Code of Civil Procedure, if there is a legitimate interest and if the documents have been adequately specified. At first sight these requirements are in harmony with the requirements for testimony:after all, an offer to produce evidence must support the case and must be specific. Rightfully, the concepts "legitimate interest" and "designated documents" are meanwhile interpreted in a broad sense, meaning that documents qualify for dis-closure if they can be relevant for establishing the facts - facts that are both relevant and that have been challenged. At the same time, as a result of the broad interpretation, both criteria provide so much room to sustain requests to produce documents, that they do not provide an adequate basis for determining what must and what must not be produced. This lack of basis becomes evident in particular from the conflicting decisions rendered in practice about the question if a request is adequately specified. If we want to make the outcome of a disclosure request adequately predictable, we need to further fine-tune the assessment that is required in order to determine what ought and what ought not be submitted. In the following chapters I will comment on the possibilities for further fine-tuning of the require-ments.

Relying on confidentiality may provide the option to restrain the right to obtain documents. When the disclosure obligation was drafted in 1838 this option did exist in any event. At the time the overall notion was that a litigant was not held to give its litigation opponent any more information about the facts. This notion has gradually eroded. Initially it was established that a concrete defence must be conducted against assertions brought forward by a litigation opponent. Subsequently, it was determined that there is no legal rule prescribing that no one is held to render assistance to fact finding. Finally, it has been established that the question if a claim of confidentiality will be honoured requires a balancing of interests.

The legal framework for compulsory disclosure only gives limited consideration to such erosion of possibilities to claim confidentiality, and only fragmentarily. As a result, some grounds to claim confidentiality have been laid down in legis-lation and others have been left out without any logical explanation. Reference to a professional privilige that prohibits disclosure was laid down in legislation in 1953 en therefore only referring to documents that had been lost. It took fifty years before the same became applicable to Section 843a Dutch Code of Civil Procedure, and before the hardly defined concept of serious reasons ("gewichtige reden") was introduced. There have never been any regulations on how to deal with the privilige against self incrimination and family right of silence. A more extensive in-depth study of confidentiality is needed to identify when a claim of confidentiality can be successful, which is the focus of this chapter.

This more extensive study shows that the balancing of interests on whether or not documents must be submitted was sometimes made beforehand by the legislator or by the parties. This refers to professional privilige, the privilige against self incrimination and the right not tot testify in cases with respect to family members, to statutory confidentiality obligations and to contractual confidentiality clauses. In all cases, the social interest in establishing the facts is the starting point when it comes to fact finding. Therefore, the group of persons who qualify for a professional privilige is limited, and it makes sense, that this must also apply to compulsory disclosure and it makes sense that family right of silence will also prohibit disclosure. Therefore, a statutory confidentiality obligation will in any event release from compulsory disclosure a party who is subject to such obligation only if the legislator has deliberately and explicitly made an assessment demonstrating that a right of silence was actually the intention. For the same reason there can only be a contractually agreed confidentiality undertaking if it has been explicitly and deliberately agreed. If confidentiality has been accepted, these grounds for confidentiality can be infringed only under exceptional circumstances.

If the legislator or the litigants have made no assessment beforehand on whether or not confidentiality can be claimed, confidentiality may be appropriate on grounds of a serious reason. However, this applies only if the court takes the view, based on examination of the documents, that under the concrete circumstances the interests at stake for non-disclosure bear more weight than the compelling social interest of fact finding. Incidentally, the party who refuses to disclose the information will barely benefit from this assessment, also because there are usually sufficient possibilities to use the information in court while at the same time adequately protecting the confidentiality, for instance via a confidential disclosure or by leaving out confidential parts of information. Having said this, I feel that there must be room for confidentiality, for instance for documents exchanged by a party in order to define its own position in a possible dispute.

Regardless of the exact boundaries: there is only limited room for a claim of confidentiality ... Besides, the meaning of a claim of confidentiality is prone to further erosion because the court may rule in favour of the party requesting for the documents by making use of the rules governing the obligation to submit facts, the allocation of the burden of proof, and the assessment of the evidence.

The limited room for a claim of confidentiality and the potentially adverse effects of a claim of confidentiality make that, in practice, confidentiality can only restrain the right to obtain documents to a limited extent, if desired. This is why other methods are needed for such restraint. The next chapter deals with this issue.

The area of application of the disclosure obligation and the conditions for their application leave much room to sustain requests for disclosure. A claim of confi-dentiality is only possible to a limited extent. The resulting extensive application involves a risk that granting a request for disclosure may require so much effort that this e work is no longer in a fair proportion to the intended result.

Therefore, there is reason to search for starting points that can limit claims on compulsory disclosure. First of all, such starting points for a more balanced implementation of compulsory disclosure can be found in the possibility to rely on the principle of subsidiarity, which already exists under current legislation. It must be possible to rely on subsidiarity if it is better to obtain information from a litigant than from a third party, or if other means of evidence - in particular an expert opinion - seem more appropriate than production of documents.

Apart from the possibility to rely on subsidiarity there is a need to introduce the option to rely on proportionality. After all, the existing rules to restrict the permitted production of evidence - because admission would obstruct a proper course of proceedings, or because it would lead to abuse or is contrary to a serious reason - are too limited to curtail the right to obtain documents if necessary. In order to let compulsory disclosure blossom in a responsible way, more room must be created than usual for turning down requests to produce documents. In this chapter it is argued that evidence must not be produced if - in a nutshell - production of evidence would disproportionately affect the interests of the document holder, which is also the case if the dispute settlement ought to deal with other themes first, or if the expected advantage of production of evidence does not outweigh the required effort.

In the previous chapters it was specified which documents may qualify for dis-closure, what is required for a right to obtain documents and also what may prohibit a right to obtain documents. As the disclosure obligation gradually develops further it may become clearer where the boundaries lie - or instead it may become clear that abiding by these obligations proves too labour-intensive. In both cases an expansion of the disclosure obligation at one's own initiative may be worth con-sidering. It is therefore hardly surprising that an obligation to disclose documents 'spontaneously was introduced in the USA, and that pleas were held in favour of such a broad obligation to provide information, for instance by a group of scholars led by the Belgian professor Storme, as well as in the final report on the funda-mental review of Dutch procedural law.

A possible choice for a broader disclosure obligation at one's own initiative, however, does not alter the fact that the boundaries of compulsory disclosure need to be clearly defined, and that it must also be possible to refuse disclosure. Besides, the downside of the potential advantages of accelerated availability of information is that the parties will constantly be chased with obligations, even if there is no need for that.

The implementation of the disclosure obligation at one's own initiative prefer-ably requires that experience be gained with the elaboration of compulsory dis-closure, and also that an assessment can be made of the pros and cons. As far as I am concerned, it would make sense - unlike today - to make it mandatory to spontaneously disclose documents to the court that support the own case, and that otherwise it suffices that a litigant may claim additional documents upon request.

By doing so, the production of evidence will focus on what is manifestly needed, which will prevent unnecessary work.

Once it has been established which documents need to be produced, it is important how to guarantee that disclosure will indeed take place, for instance because a court order adequately specifies which documents need to be produced, but also because a selection is made by a designated third party or by the court. Preferably, dis-closure must be effected in the most appropriate manner for the petitioner, and the costs involved must also be paid to the producing party. This chapter has dealt with the different ways to guarantee this.

In case of failure to comply with the disclosure request, the court is entitled to impose sanctions, as it can at all times attach sanctions to the litigation attitude of the parties. An example would be to label the assertions as inadequately sub-stantiated or contested, to label assertions as proved for the time being, and possibly to reverse the burden of proof. Therefore, there is no need to express that the court is entitled to impose sanctions on refusal at its discretion.

As for deciding which sanction will apply, one must opt for the most appro-priate and therefore proportional sanction. As far as I am concerned, there will be no reason to impose a penalty payment ("dwangsom") in most cases, even though this possibility exists by all means. Coercive detention ("lijfsdwang") may also be an option, but only if other sanctions do not lead to the intended result.

Enforcement of a right to obtain documents requires an order. Such an order may be issued at the request of a litigant or by the court in its official capacity. As far as I am concerned, it stands to reason to leave the initiative for setting the factual framework first of all with the litigants, and it also makes sense to assess an order given by a litigant, upon request, against the same requirements as an ex officio court order. Case law has shown that compulsory disclosure at the request of a litigant can be enforced both in and out of court, and both by means of a writ of summons and by means of a petition.

A very important factor for the development of compulsory disclosure has been that a claim to produce documents can be submitted by way of an interim claim without requiring a response on the merits at the same time. The disclosure obliga-tion could be expanded further if production of documents can also be requested as a preliminary evidential measure, in the same manner as - for instance - a preliminary examination of witnesses. Today this is not possible as yet: an inde pendent disclosure request cannot be submitted, neither can the request be submitted as an additional request on top of other preliminary evidential measures. There is only one exception: the Partial Disputes Proceedings Act concerning personal injury and damage caused by death ("Wet Deelgeschillenregeling voor letsel- en overlijdensschade") provides the option to submit a claim to the court to enforce the production of documents. It is desirable to introduce the possibility to request documents for all disputes in proceedings separate from proceedings on the merits, obviously with restrictions that will prevent that too many documents can be requested too early.

Initially there were different thoughts on the question if a decision on an interim claim to enforce discovery of documents qualifies as a final judgment or as an interlocutory judgment. Meanwhile it has become clear that it is an interlocutory judgment, meaning that a debate about disclosure of documents will be handled in the same manner as a discussion on whether or not an examination of witnesses or an expert opinion is required.

The possibility to seize evidential documents may prove a welcome addition to the possibilities for collecting evidence. Since 1 May 2007 the law has explicitly provided this option for IPR cases. Whether or not there is an adequate statutory basis for attachment of evidence in non-IPR cases is still subject to discussions: the case law produces different views, the attachment syllabus initially took it for granted, and meanwhile fails to specify if this possibility indeed exists. In my opinion attachment of evidence is already possible today, even in non-IPR cases, pursuant to Section 843a paragraph 2 Dutch Code of Civil Procedure in conjunction with Section 730 Dutch Code of Civil Procedure.

Either way, when it comes to attachment of evidence, the attachment must be provided with adequate safeguards. This means in particular that when giving permission for discovery it must be verified if the attachment of evidence meets the requirements of subsidiarity and proportionality. Incidentally, it goes without saying that the attachment must be made with due observance of the rules set forth in this chapter, and that the seized documents cannot be examined until the court has confirmed that examination is permitted.

Once the requirements for attachment have been met, the question may rise if attachment meets the provisions in Section 8 ECHR. It is my opinion that attachment of evidence has been provided - and can be provided - with adequate safeguards. I think therefore that Section 8 ECHR will not prohibit the attachment of evidence.

Not only Dutch law provides the option to bring legal proceedings in order to enforce disclosure of documents. This option can also exist under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, as well as the European Evidence Regulation, but not under the Brussels I Regula-tion.

In spite of the cryptic wording of the legislation, the disclosure obligation has developed towards full bloom. Against this background there is no direct need to lay down this development in new legislation. However, the Minister has announced that legislation is underway, the Advisory Committee has made a first draft, and legislation is also necessary to regulate issues such as involvement of third parties in the lawsuit, discovery in proceedings separete from proceedings on the merits, or a more solid legal framework for the attachment of evidence. Therefore, I elaborate in the final chapter on what such legislation ought to look like, based on my opinions set forth in the preceding chapters.