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.
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!
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:
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:
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.
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:
Dutch law also offers the following options for (pre-trail) discovery and/or securing evidence:
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 email@example.com. If you would like to learn more information about American discovery laws for use in non-American litigation, please contact Kelsey Weiss at firstname.lastname@example.org.
Read the other articles in this series:
Punitive damages in US lawsuits attract a lot of attention. But the Netherlands does not have punitive damages. What does this mean for Dutch companies operating in the United States? And for US companies claiming damages in the Netherlands? Priscilla de Leede of Russell Advocaten and Kathleen Hugo of the American law firm Mateer Harbert discuss these questions in their article for Stare Decisis, the magazine of the Young Lawyers Section of Primerus, the World’s Finest Law Firms.read on
In the last issue of Stare Decisis, Priscilla de Leede of Russell Advocaten, Mary Edenfield of Mateer Harbert and Ed Belam of Marriott Harrison discuss the most important topics to include in your employment contracts regarding the termination of the contract. There are some important differences to take into account!read on
Proceedings do not always have to be in court. There are other ways to resolve legal disputes. An important and often also appealing alternative is arbitration. In particular if you are doing business internationally. What are the advantages of arbitration?read on
Russell Advocaten has for the 17th consecutive year in a row been included in The Legal 500. We are pleased with the recognition for the quality of our legal services by experts and clients. Please read what they say about us:read on
Even if the Restitutions Committee recommends to return looted art, it is not certain that the work of art will actually return to its rightful claimants. It could be that the work of art is irreplaceable and indispensable to Dutch cultural heritage and may not leave the Netherlands.read on
Quality, promptness and personal attention is of paramount importance to us. Read in this newsletter the experiences of five clients. Why do they engage our law firm? What do they think is the strength of Russell Advocaten and, above all, what do they get in return?read on