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Discovery law in the USA and the Netherlands

Publication date: 31 December 2020
Russell Advocaten is the exclusive member in Amsterdam, the Netherlands of Primerus, a worldwide network of top-rated law firms. Our lawyers and the lawyers of fellow member Mateer Harbert in Orlando, FL, the United States have joined forces to write a series of comparative law articles. In this article Eileen Pluijm of Russell Advocaten and Kelsey Weiss of Mateer Harbert provide you with an overview of discovery in civil cases in the US and the Netherlands.

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The outcome of legal proceedings, both in the US and the EU, is often determined by the quality of evidence. Therefore, it is of utmost importance to collect as much evidence as possible before initiating legal proceedings. In doing so, you know – prior to the proceedings – which evidence is (at least) available. Moreover, it enables you to make a better assessment of your weak and strong points and the chances in court. However, collecting evidence is not always easy, especially if the evidence is in the hands of a third party that is unwilling to provide it to you. In this context discovery law can offer a solution.

Both the US and the Netherlands offer – to different extents – the possibility of (pre-trial) discovery of evidence in civil cases. Make smart use of these possibilities. After all, collecting enough evidence could mean the difference between winning and losing your court case!

The United States

In the United States, parties to litigation may obtain discovery before trial regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. This is true even if it is not admissible in evidence. American attorneys conduct pre-trial discovery in the form of pre-trial depositions, written interrogatories, requests for production of documents and items, and requests for admission of certain facts. Parties are given a limited amount of time to comply with such discovery requests and if they fail to do so within allotted time frame, the requesting party can file a motion seeking the court to compel compliance. While discovery can be expensive and burdensome, it is a powerful tool that allows litigants to obtain information to evaluate and attempt to resolve their dispute before trial.

Non-Americans can use American discovery tools to their advantage under a federal statute, 28 U.S.C. 1782. Section 1782 establishes a procedure whereby persons in the United States may be compelled to produce documents or testimony for use in foreign litigation. In order to grant discovery under Section 1782, the district court must find that three statutory requirements are met:

  1. The party from whom discovery is sought can be found in the district where the application is made,
  2. The discovery will be used in a foreign proceeding, and
  3. The party applying for discovery is an interested person in the foreign proceeding.

Even if these requirements are met and the court is authorized to grant discovery, the district court is not required to do so and may consider four additional factors:

  1. Whether the person from whom discovery is sought is a participant in the foreign proceeding,
  2. The receptivity of the foreign tribunal to United States court assistance,
  3. Whether the discovery application is an attempt to circumvent foreign proof-gathering restrictions, and
  4. Whether the documents and testimony sought are unduly intrusive or burdensome.

The Netherlands

Compared to the US’ extensive discovery of evidence, Dutch procedural law offers limited options for discovery in civil cases. Nevertheless, the instruments offered by Dutch law should not be overlooked.

Court order for inspection, copy or excerpt

Based on Article 843a of the Dutch Code of Civil Procedure (CCP), you can request a court order for the inspection, a copy or an excerpt of certain documents in the possession of someone else.

The court will not allow a fishing expedition. Therefore, this order to produce documentation, will only be given if:

  • Legitimate interest: The requesting party must have a legitimate interest. For instance, the documents are necessary as evidence during legal proceedings.
  • Specification documents: The documents have to be properly specified, so that it is clear to the other party which documents are requested.
  • Legal relationship: These documents have to relate to a legal relationship to which the requesting party is party.

Other options

Dutch law also offers the following options for (pre-trail) discovery and/or securing evidence:

  • Seizure of evidence
    If you fear that evidence will be destroyed or made untraceable, you could request the court to grant evidential seizure. The request will only be granted if the conditions as set out in Article 843a CCP have been met. Please note: If the court grants the request, you are not allowed to review these documents! You will need additional leave, namely the aforementioned court order for inspection, in this context.
  • Preliminary witness hearing
    Even before proceedings are pending, you could request the court to hear witnesses.
  • Preliminary expert report or expert hearing
    Furthermore, it is also possible before legal proceedings have been initiated to request to court to appoint an expert to initiate an investigation and provide an expert report or to order an expert hearing.

Conclusion

While the scope of discovery between the United States and the Netherlands may differ, the benefits are similar: discovery is a tool that allows litigants to obtain information and assess their case. It is important for litigants to understand how these tools can be applied and utilized across countries. If you would like to learn more information about discovery laws and procedures in the Netherlands, please contact Eileen Pluijm at eileen.pluijm@russell.nl. If you would like to learn more information about American discovery laws for use in non-American litigation, please contact Kelsey Weiss at kweiss@mateerharbert.com.

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