1 Introduction
and Overview
- This chapter deals with the limits of evidence gathering. It
consists of three elements: interests and principles as to why a disclosure or discovery should be
prohibited (Section 2); limits as to the stage of the proceedings up to which new evidence can be
presented (Section 3); the extent to which an appellate court can review orders to produce evidence
(Section 4).
- The first part overlaps with Part VII Chapter 5
on the admissibility of evidence insofar as there is no clear distinction between evidence that is
limited and evidence that is inadmissible.[2] Consequently, this chapter concerns privileges,
privacy reasons, and proportionality as means to limit access to evidence. In contrast, Chapter 5 deals
with relevance[3],
illegally obtained evidence[4], hearsay[5] , and undue prejudice[6] as reasons for not admitting evidence.
- The second part, which focuses on the limits up to which stage of
proceedings evidence can be presented, also overlaps with the question of admissibility, namely
regarding time: Whereas Chapter 5 concerns time limits and preclusion of specific pieces of
evidence[7], this
chapter focuses more on the last point in time at which new evidence can be presented, including new
evidence at the appeal stage.
- In general, a distinction can be made between systems with broad
discovery or disclosure (US, Israel, England) and those systems with evidence gathering only pertaining
to specific pieces of evidence.[8] However, this does not lead to a different approach concerning the limits of taking of
evidence. Rather, all systems essentially have similar reasons for limiting disclosure. Naturally, the
details differ, and all systems entail their peculiarities. If one had to say which systems are the
closest, it would be Israel and the US on the one hand, and Germany, Argentina, and Japan on the other.
One systematic difference seems to be the distinction between absolute and qualified privilege that
exists in the US and Israel. If a privilege is only qualified, this means that the court must conduct a
balance of interests in order to ascertain whether to allow the evidence. Other states, however,
recognize the concept of balancing interests when it comes to the admissibility of evidence.[9]
- The interests and principles of why a disclosure or discovery should
be prohibited are similar in most systems. All systems recognize what the US system calls an
attorney-client privilege. The privilege can be waived by the party, not by the lawyer. Failure to waive
it can, under German law, have the adverse effect that the fact purported by the opponent is deemed
true.[10] All
systems recognize protection against self-incrimination. In Germany and Japan, it includes relatives,
and in England and the US only spouses. In the US, documents are not included. That spouses do not have
to testify against their partner is, however, a privilege distinct from privileged communications
between the spouses.[11]
- Further, all systems recognize – to varying degrees –
the protection of public interests, press and media, and trade secrets. Many systems recognize a
doctor-patient and priest-penitent privilege.
- Proportionality is a principle that is mentioned in England, the US,
Israel, Argentina and Germany. In Argentina, one can further discern it when it comes to the maximum
number of witnesses.[12] In Japan, it is neither mentioned nor relevant. Whereas it is always considered in
Israel, it remains unclear what the practical effects are in the US. In England, the two overriding
objectives of the Civil Procedure Rules (ECPR) are to deal with a case justly and – of importance
here – at proportionate cost.[13]
- All systems allow new evidence up until the last oral hearing. In
most systems (Argentina, Germany, England, and Japan), the courts oversee evidence gathering.
- Only Japan and England allow a separate challenge of an order to
produce evidence. Otherwise, the entire judgment of the first instance must be challenged. To admit new
evidence in appeal is possible, but limited.
2 Interests and
Principles That Limit Evidence-Gathering
2.1 Overview of
the Legal Foundations and Concepts
- At the outset, one needs to bear in mind the
general distinction between systems where there is broad discovery or disclosure (US, Israel, UK) and
those where individual documents need to be identified to be disclosed (Germany, Japan,
Argentina).[14] The consequence of this appears to be a different significance of documentary as
opposed to testimonial evidence.[15] Where rights to obtain documentary evidence
gathering are broader, a witness (cross-)examination in trial may consist of reading a document to the
witness and asking whether the witness had written it. This approach, where the (cross-)examination in
trial may even seem superfluous to extract new information from a witness, is seldom possible in systems
in which a party can only request disclosure of specific documents. There, the witness’s
obligation to tell the truth may reveal yet unknown facts when judges ask a witness to describe the
course of events. However, one should bear in mind that, during discovery, documents are extensively
used to extract additional information from witnesses through depositions.
- The core of the analysis builds the law of document production.
Here, all systems set limits regarding attorney-client privilege, self-incrimination, and public
interest defences. It should be noted, however, that not all systems give document production a
prominent role. This is evident, for example, in the systematic position of privileges in the German
Code of Civil Procedure (GCCP) in the context of the examination of witnesses;[16] these privileges are extended to
documents simply by reference.[17]
- In the US, the main protection against the breadth of US discovery
are so-called privileges[18]. These include protected communications such as the attorney-client privilege, the
doctor-patient privilege as well as protection against self-incrimination, and in the public
interest.[19] However, a general protection of privacy from a US perspective against the production
of documents does not exist.[20]
- In English law, where disclosure is also broader, its limits have
evolved historically in the common law and in equity. Notably, the English Civil Procedure Rules, as the
pivotal legal instrument in civil procedure, do not contain a list of pertinent privileges and
immunities. There are scattered provisions in statutory laws. Privileges exist regarding correspondence
with lawyers, the public interest, self-incrimination, trade secrets, and correspondence in settlement
negotiations.[21] In general, disclosed documents may only be used for the proceedings in which they were
disclosed unless publicly read or referred to by the court.[22]
- Israeli law on the limits of evidence gathering is similar to that
of the United States and England. The primary protections are privileges, which are categorized as
either absolute or qualified. Absolute privileges include the attorney–client privilege and the
clergy–penitent privilege. In principle, even documents covered by absolute privilege must be
listed in the disclosure affidavit. In practice, however, such documents are described only in vague
terms that do not reveal their contents, and they are not subject to inspection.
- In Israel, where privileges are qualified, the
pertinent documents must be mentioned in the affidavit, even if they are not admissible in court on
grounds of privilege. This is the case in particular when the privilege has been stipulated in order to
encourage persons to cooperate in an investigation, as is the case with information received by the
State Comptroller (an Israeli government audit entity), or reports prepared by State investigative
committees or by the State Comptroller. However, the court may inspect the document and decide, after
balancing the protected interests against the need to establish the facts of the case whether the
privileged document should be disclosed wholly or partially.[23]
- In Germany, as regards a party’s
obligation to disclose, only specific documents can be demanded under Sec 142 and 144 GCCP.
Equally, no party can be obliged to be examined.[24] However, if a party refuses to do so, the court
may, at its discretion, take into account the conduct of the party as a whole and decide whether the
alleged fact is proven.[25] The underlying principle is nemo tenetur edere contra
se. No one is held to produce evidence against themselves. The reasons for this
are the protection of privacy and trade secrets.[26] However, this principle has been contested in
German literature[27] and is eroding in Union law obligations to produce documents.[28]
- Further, third parties may refuse to testify
based on personal grounds or for factual reasons. Personal grounds include the personal relationship
between witness and party, like marriage, and professional obligations to secrecy, such as those of an
attorney.[29] Factual reasons concern the avoidance of damages, self-incrimination, and trade
secrets.[30] The same reasons apply to document production[31] or the allowance of visual or expert
evidence.[32]
- In Japan, the system for ordering production of documents and other
evidence is equally narrow: A party has the right to apply to the court to issue a document production
order against the other party or a third party.[33] The production order is issued in favour of the
court, not the party.[34] There are two types of document production obligations – those with grounds for
refusal (so-called unconditional and conditional obligations) and those without.
- An unconditional production obligation applies to documents whose
existence or content the other party cites to support its allegations and who are in possession of that
party;[35] and
where the requesting party has a right under substantive law to require the holder of the document to
deliver or inspect it.[36]
- A conditional production obligation is in place regarding all other
documents in possession of a party or a third party.[37] Grounds for refusal include self-incrimination,
public interest, and professional secrets.[38]
- Another production obligation concerns documents created to prove
the rights or status of the requesting party or documents created to prove the legal relationship
between this party and the holder of the document.[39] Whereas the wording of item (iii) implies
that these documents are to be produced unconditionally, the case law of the Supreme Court allows for
the refusal of production on grounds similar to those of item (iv).
- In Argentina, the parties to a dispute and third
parties must produce documents in their possession essential to resolve the dispute.[40] A third party may
refuse production only if the document is its sole property and the production may harm the
party.[41] There are no strict rules on when evidence cannot be taken. However, privacy serves as
a constitutional right that may hinder the taking of evidence, subject to a proportionality test
balancing the degree of interference with the rights at stake (compare a civil traffic damages suit with
an action to prevent child abuse).[42]
2.2 Privileges
and Comparable Reasons to Refuse to Give Evidence
- The analysis in this subsection starts with the
peculiarity of its denotation. The common law term privilege refers to a category of immunity that limits the scope of evidence gathering. Other
systems simply refer to the right to refuse to give evidence. Neither term is completely accurate. In essence, all jurisdictions refer to (i) the right
and (ii) the obligation to refuse to give evidence, (iii) which can be waived by the protected party.
The term privilege fails to capture the
possibility of waiver, while right understates
the potential obligation to refuse to give evidence. This chapter generally employs the common law term
privilege. It identifies the most prominent privileges in the systems analysed.
- In the US, evidentiary privileges are mainly the products of state
law, not federal law.[43] For claims or defences not governed by state law, the US Federal Rules of Evidence
(USFRE) provide that privileges should be determined by the courts according to the common
law.[44] On
occasion, the Supreme Court has refused to recognize privileges.[45] This variety of possible sources of privilege
law means that sometimes there is a debate about which jurisdiction’s privilege law should
apply.
- In Israel, according to case law, the party that alleges that a
document is privileged has to plead it in its affidavit.[46] If it fails to do so, it will be allowed to
rely upon the privilege only if the court is convinced that this omission was due to an error.
- The inadvertent disclosure of documents constitutes a significant
risk. As a US judge put it in 1991: ‘The inadvertent production of a privileged document is a
specter that haunts every document intensive case’.[47] This risk has since increased significantly due
to the proliferation of electronic communications and the huge growth of discoverable information. To
solve this, England and the US have adopted a similar approach:
- In England, if a party has inadvertently allowed a privileged
document to be inspected, its later use requires the permission of the court.[48] The US has reached a similar
result over time.
- In the US, the production of a privileged
document could be viewed as a waiver of that respective privilege. This has led to several rule changes
to address these challenges in avoiding waiver during discovery. First, in 1993, the rules were amended
to require that parties withholding information from the production of documents on grounds of privilege
provide details of what was being withheld.[49] In 2006 – as part of the
‘E-Discovery amendments’ to the Federal Rules – another provision was added to permit
a party that had mistakenly produced privileged material to seek its return and prevent its use in the
litigation.[50] However, due to concerns about the limits of the rulemaking power,[51] the provision did not
purport to alter the scope of waiver, but only provide a method of bringing that question to the
court’s attention. In 2008, Congress enacted Federal Rule of Evidence 502, which adopts provisions
that effectively change the waiver doctrine. Most significantly, it provides that the former
‘subject matter’ scope of waiver would ordinarily not apply.[52] It also directs that
‘inadvertent disclosure’ would not result in a waiver if the privilege holder took
‘reasonable steps to prevent disclosure’.[53] Beyond that, it has empowered the court to
order greater protections against waiver.[54]
2.2.1 Attorney-Client Privilege
- The attorney-client privilege is an important
privilege in all systems up to the point where the client abuses the privilege to advance a
crime. [55]
- From a US perspective, the lawyer-client
privilege may be the oldest common law privilege. As explained by J Wigmore in the classic
definition, it has several requirements, and is only available:
(1) Where legal advice of any kind is sought (2) from a professional legal advisor
in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the
client, (6) are at his instance permanently protected (7) from disclosure by himself or by his legal
advisor, (8) except the protection be waived.[56]
- We will deal with a few aspects of the privilege
in turn. First, the privilege protects only communications that are made in confidence, so the presence
of third parties may destroy it. This consequence does not follow if the additional person is necessary
to the professional relationship – such as a paralegal or secretary of the lawyer.[57] When parties with
similar interests in litigation – such as co-defendants – confer in the presence of their
lawyers, they may be protected by the ‘common interest’ doctrine. However, courts have
upheld the disclosure of communications by unauthorized third parties who overheard conversations
between a lawyer and a client.[58]
- The purpose of the communication must be legal advice. Involvement
in the general business activities of a client does not suffice.[59]
- In other countries, such as Germany or Japan,
attorneys are simply bound to maintain confidentiality concerning everything that becomes known to them
in the exercise of their profession.[60] This leads to a corresponding
privilege.[61] In Germany, the court may evaluate a party’s refusal to release the lawyer from
an obligation of confidentiality. There, the principles of frustration of evidence apply: Generally, the
court may deduce that the witness statement would have revealed facts unfavourable to the party refusing
to release from the obligation, unless the party can invoke an interest in secrecy beyond the
proceedings.[62]
- In the US, the privilege is limited to communication with the
client. This raises the question of who the client is for the purpose of privilege protection.
Particularly in the case of corporations or other business entities, this question can be difficult to
answer. Is it the entity or the human being making the communication?
- Two questions emerge: (i) Is communication between employees and
lawyers protected? (ii) Who has the right to waive the privilege when the employee has provided
confidential information?
- The first question is answered in the German and Japanese systems by
the broader scope of the privilege: It is protected. As to the second question, German case law holds
that personal confidentiality interests, even of former board members, do not defeat a
corporation’s claim against its attorney to release files.[63]
- In the US, the discussion focused on the first question, with the
second question treated as a man in the middle problem: For many US courts, the dividing line for corporate parties was the
control group – the individuals who had the
authority to make controlling corporate decisions. They did not insist that the company had no
privilege, but (particularly with large organizations) resisted the idea that the privilege could apply
to communications between the company lawyer and every employee of the company.
- This limitation on the application of the privilege in the corporate
setting could solve a conundrum – if the corporation is the client, could the employee who made
disclosures to the company’s lawyer claim that they were protected by the employee’s
attorney-client privilege? If not, a company could unilaterally decide to have its lawyer reveal the
‘confidential’ communications to others, even the prosecuting authorities.[64]
- In 1981, the US Supreme Court rejected the ‘control
group’ test for the attorney-client privilege recognized by the federal courts.[65] The Court’s
decision emphasized the ‘Hobson’s choice’ (of take it or leave it) faced by the
corporation’s lawyer when the members of the ‘control group’ cannot supply the needed
information, but the cloak of the privilege does not extend to communications with the corporate
employees who can supply that information. However, some state courts have disagreed with this
interpretation.[66] And some lawyers said that despite the ‘Hobson’s choice’, identified
by the Supreme Court, they had no choice but to ask the corporate employees with the information to
disclose it: Even lawyers in jurisdictions which followed the severely limited ‘control
group’ test essentially had to ignore it because otherwise they could not serve their clients. It
has never made any sense to remain deliberately ignorant of the facts out of fear of adverse
discovery.[67]
- Naturally, the privilege can be waived. Then lawyers cannot refuse
to give evidence.[68] In the US, one form of waiver is intentional relinquishment. Whether this can be
reversed where the actual content of privileged communications has not been revealed is sometimes
uncertain. Certainly, selective disclosure of
some privileged communications — an issue that arises only in systems with broad
evidence-gathering powers — is incompatible with maintaining privilege protection for other
communications on the same general subject matter, as the disclosed material may place advice from one
lawyer in the context of advice from others.
- In Israel, the lawyer-client privilege is considered to be designed
to ensure that the client is able to present his attorney with all pertinent information, without fear
that the information will fall into the hands of others. Therefore, it is the client’s right to
refuse disclosure that is protected. Israeli statute law has evaded the problems of US doctrine. Sec 48
Evidence Ordinance [New Version], 5731-1971 reads:
- An advocate is not bound to submit as evidence any matters or
documents which have passed between him and his client or a person acting on behalf of his client and
which are substantively connected with the professional service rendered by him to his client, unless
the client has waived the privilege. The same applies to an advocate’s employee whom any matters
or documents communicated to the advocate reached during his work in the service of the advocate.
- The provisions of subsection (a) shall apply also after the witness
has ceased to be an advocate or the employee of an advocate.
- Further, Sec 90 Chamber of Advocates Law, 5721-1961 provides:
An advocate shall not disclose in any legal proceedings or in any enquiry or search
any communications or document passed between him and a client and substantively connected with the
professional service rendered by him to the client, unless the client has waived the secrecy thereof.
- In Israel, the privilege also covers documents the disclosure of
which is requested by a third party who has come into possession of the documents.[69] It covers documents
held in the hands of the lawyer, the client, or a third party. Also, materials prepared in anticipation
of the submission of a claim are privileged.[70]
- The privilege only protects communications that are made in
confidence. If the client divulges the information, the privilege is deemed to have been
waived.[71]
- In English common law, the legal professional
privilege has been accepted as an absolute privilege, as evidenced by a criminal case before the House
of Lords. Here, the applicant’s solicitor was summoned to produce the communication with him in a
murder trial where the applicant was a witness after having been acquitted. The House of Lords allowed
the appeal against the production order. The crux of the case was that the applicant had lost a
‘recognisable interest’ in confidentiality once acquitted. Yet the privilege held:
The client must be sure that what he tells his lawyer in confidence will never be
revealed without his consent. Legal profession privilege is thus much more than an ordinary rule of
evidence, limited in its application to the facts of a particular case. It is a fundamental condition on
which the administration of justice as a whole rests.[72]
- The privilege is divided into the sub-categories of legal advice
privilege and litigation privilege. Only the client can waive the privilege, not the lawyer.
2.2.2 Privileges for Doctors,
Psychotherapists, Priests, and Other Professions
- Most systems have similar privileges for professionals where it is
important that clients can be completely open and who are therefore bound by confidentiality. Naturally,
details differ. It seems difficult to recognize reasons for the differences – they may stem from
the varying social status of the respective professions or simply from historical contingencies.
- In the US, the common law did not recognize a
doctor-patient privilege, but state legislatures have often done so by statute. However, the scope of
these state laws varies widely.[73] Where applicable, this privilege is frequently
lost when the patient puts their physical or mental condition at issue in a lawsuit, such as in a
personal injury claim.
- However, there are stronger policy justifications for protecting
communications between a psychotherapist and a patient. In 1996, the US Supreme Court recognized a
privilege for such communications.[74] Even this privilege may be restricted if the
therapist concludes that the patient was a ‘dangerous patient’.[75]
- In Israel, the doctor-patient and psychotherapist-patient privileges
are qualified privileges, in the sense that after disclosure, the court may decide, after reviewing the
privileged materials and considering the circumstances of the case, whether the other party may inspect
these documents. The qualified nature of these privileges is expressed in the Evidence Ordinance.
Accordingly, Sec 49 Evidence Ordinance [New Version], 5731-1971 reads:
(a) A physician is not bound to give evidence on any matter relating to a person who
has availed himself of his services if such matter reached him in the course of his work as a physician and
it is one of the matters which, by reasons of their nature, are generally communicated to a physician in
reliance on his keeping them secret, unless that person has waived the privilege or the court has found that the necessity to disclose the evidence for the purpose of doing
justice outweighs the interest in its non-disclosure. The same applies to a person
whom any matter communicated to a physician or a medial institution or as a member of a professional team
working with the physician in attending patients [emphasis added].
(b) The provisions of subsection (a) shall apply also after the witness has ceased
to be a physician or to work as specified in the latter part of that subsection.
(c) Where privilege is claimed under this section, the claim shall be dealt with
in camera. If the court decides to hear the testimony, it
may hear it in camera.
- A similar rule is provided in Sec 50 Evidence Ordinance [New
Version], 5731-1971, with respect to expert psychologists, ie, psychologists defined as experts for the
purpose of this section, according to an order issued by the Minister of Health, with the consent of the
Minister of Justice.
- In English law, there is no privilege for either doctors or
clergy.[76]
- In the US, communications between parishioners and clergy are widely
regarded as privileged – for example, confessions under the doctrines of the Roman Catholic
Church. A proposal to add such a privilege to the Federal Rules of Evidence (Rule 506) was rejected,
though.
- In Israel, the religious clergyman privilege, like the
attorney-client privilege, is absolute, as provided in Sec 51 Evidence Ordinance [New Version],
5731-1971:
A minister of religion is not bound to give evidence on any matter told him in
confession and the disclosure of which is forbidden him by the laws of his religion.
- In Japan and Germany, the list of professional privileges is
extensive. The Japanese wording of the law on document production refers to ‘secrets learned in
the course of one’s duties by professionals such as a doctor, lawyer, or religious
person’.[77] The law on refusal to testify is even broader:
(ii) a person who is or was a doctor, dentist, pharmacist, pharmaceuticals
distributor, birthing assistant, attorney at law (this includes registered foreign lawyers), patent
attorney, defense counsel, notary, or person engaged in a religious occupation is examined with regard to
any fact learned in the course of duty that shall remain confidential;
(iii) the witness is examined with regard to a matter that involves a …
professional secret.[78]
- In Germany, a privilege exists for clergy[79] and persons to whom facts are
entrusted, by virtue of their office, profession, or status,[80] for example, members of parliament, lay judges,
arbitrators, mediators, legal representatives and employees of financial institutions, medical doctors,
psychotherapists, attorneys, notaries, tax accountants.[81] These persons may not refuse their testimony if
they have been released from their confidentiality obligations.[82] If not released, the same principles for
frustration of evidence apply as for attorneys.[83]
2.2.3 Privileges for Family Members
- Regarding privileges for family members other than
(self-)incrimination, no trend exists between the systems evaluated. Only the US, Germany and Argentina
have family privileges.
- US law recognizes two sorts of privileges
regarding married couples.[84] Such privileges are recognized by the federal courts and by state statutes and case
law.[85] The
adverse spousal testimony privilege permits a spouse to refuse to testify against a spouse. The general
justification is that a spouse’s testimony would threaten marital harmony.
- There are different views on whether the spouse who is a party to
the lawsuit can invoke this privilege even though the other spouse is willing to testify. The US Supreme
Court has held that only the witness spouse has this privilege; if they are willing to testify the other
spouse cannot prevent them from doing so.[86] This privilege ends when the marriage ends. It
also does not apply if the spouses are on opposite sides of the lawsuit, such as in a divorce action, or
if one is suing the other for a tort, such as battery.
- Despite a few exceptions, there are no similar privileges for other
family relationships. A few US states recognize a privilege for confidential communications between a
parent and child, but there are no such protections for communications among siblings or with other
relatives.
- In Germany, privileges for family relationships
reach further (Sec 383(1) GCCP), namely fiancés (No 1), spouses (No 2, 2a), and
close family of a party (No 3), that is parents(-in-law), (great-)grandparents, brothers and
sisters(-in-law), aunts, uncles, nieces, nephews, not however cousins. The rationale is to protect a
close relative from a conflict of conscience, as witnesses in civil proceedings are obliged to tell the
truth under threat of criminal punishment. Consequently, the law allows witnesses to ‘stay
out’.[87] The court must not evaluate such refusal to the detriment of either party.[88]
- Because German family privileges are so broad,
there are some exemptions where close family members must give evidence (Sec 385 GCCP): the witness
was involved as a witness for a legal transaction (No 1); the witness is to testify about the
births, marriages, or deaths of family members (No 2), or facts concerning property matters
governed by the family relationship (No 3); the witness is to testify actions that the witness
allegedly took with a view to the legal relationship at issue as the predecessor in title of a party or
as its representative (No 4).
- US law makes a further distinction with a
different emphasis than German law, where the right to waive the privilege always lies with the witness:
the protection of confidential communications between spouses during the marriage continues after the
marriage ends in the case of so-called marital confidences.[89] The presence of a third person – even a
close relative like a child – destroys the confidentiality required for the privilege to apply.
This privilege belongs to the spouse who made the disclosure, and the other spouse may not testify to
that communication even if willing to do so.
- The closest parallel in German law can be found in the criminal law
concept of offence-free space. Relevant cases relate
to mail of prisoners who make derogatory remarks about prison personnel in letters to family members or
other persons of trust (the cases come before the courts because prison mail is controlled). The German
Federal Constitutional Court held that privacy protects such messages where a person writes in a
‘shielded area’.[90] Consequently, German law solves the problem of protecting the confidential word
substantively, while US law opts for a procedural solution.
- Israel has a family-related special rule: the record of statements
made in the family court by minor children is privileged.[91] The child is heard by the court without any of
his parents, or their lawyers, being present. The court will not provide in its decision details from
the statements made by the child, unless the child agrees that the court will disclose his statements,
wholly or partially, and the court considers that such disclosure is in the best interests of the
child.
- In Argentina, the family privilege takes place early in the
proceedings: direct relatives or spouses, even if legally separated, cannot be called as witnesses,
except for signature recognition.[92]
2.2.4 Self-Incrimination
- Protection against self-incrimination during civil proceedings is
known to all analysed systems. This is not surprising as also the European Court of Human Rights (ECtHR)
recognized the privilege as an international standard.[93] Differences arise as to its substantive and
personal scope.
- In effect, all jurisdictions extend the privilege to spouses.
Admittedly, doctrinally in the US, this is not framed as an extension of the protection against
self-incrimination, but rather as one of two marital privileges aimed at protecting the
marriage.[94] The reason to speak of an extension of protection from self-incrimination is that in
some systems like Germany, Austria and Japan the protection against self-incrimination is mentioned in
the civil procedure code all in one breath with the
incrimination of family members.[95]
- The US Constitution protects against compelled
self-incrimination in criminal cases.[96] This privilege belongs to the individual, and
the witness cannot claim it to protect any other person. But it only applies if there is a realistic
prospect that answering the questions would subject the witness to a risk of criminal
prosecution.[97] A witness can invoke the privilege in any proceedings, but must take the witness stand
and invoke it, and in civil cases, the other side can ask the jury to draw an adverse inference from the
invocation of the privilege. However, because the privilege can be waived by testimony, subjecting the
witness to cross-examination on all matters covered in direct testimony or during deposition, it must be
asserted broadly. Thus, witnesses who assert this privilege may refuse to answer any questions for fear of being deemed to have waived the
privilege. When there are parallel civil and criminal proceedings, parties may seek to defer depositions
in the civil proceedings until the criminal proceedings are concluded.[98]
- The German system draws the line differently so that waiver does not
become an issue. We have seen that if the witness is a relative of the party, the witness can broadly
refuse to give evidence, regardless of whether incrimination is imminent.[99] Otherwise, a witness may refuse
to answer specific questions, which may expose them or a relative to the risk of prosecution for a
criminal or administrative offence.[100] But the privilege goes further: A witness may
even refuse to testify if the answer may cause a proprietary loss to the witness or a
relative.[101] This is the case if the statement would reveal a claim or facilitate its
assertion.[102] Yet, mere indirect damage would not suffice, eg, if the witness is the director or
shareholder of a limited company with a separate legal personality.[103] Finally, a witness may refuse
to testify if the answer would dishonour the witness or a relative.
- The provisions on testimony also apply to document
production.[104] Once again, the scope is narrower in the US. The US Supreme Court has held that this
privilege does not apply to documents in a person’s possession, even if they may incriminate the
person.[105] Given the pervasive reliance on digital communications in twenty-first century society,
there are abundant opportunities to capture incriminating documentary evidence.
- In Japan, refusal of document production and
testimony to avoid self-incrimination are somewhat similar to the general family privilege under German
law[106]: A person
may refuse to produce documents or testify concerning matters that may result in criminal prosecution or
conviction of the holder or her (past) relatives. Relatives include spouse; current or past relatives
within the fourth degree or relatives by marriage within the third degree; wards or
guardians.[107] Furthermore, like in Germany, the protection extends to cases where the reputation of
such person would be harmed.[108]
- In Israel, a person does not have to give evidence which may lead to
charges against them. If the court rejects such request, this evidence must not be used against
them.[109] While the Evidence Ordinance further prescribes privileges concerning the testimony of
spouses, parents and children in criminal proceedings, no similar rules are to be found for civil
proceedings.
- In England, the privilege against
self-incrimination is a long-established common law privilege.[110] The rule is that no one is bound to answer
any question if the answer could, in the opinion of the judge, expose the deponent to any criminal
charge, penalty, or forfeiture, which the judge regards as reasonably likely to be preferred or sued
for. The rule applies to oral evidence, interrogatories, and the discovery of documents. It comprises
the privilege of incrimination of spouses or civil partners. For civil proceedings, the rule is laid
down in Sec 14(1) Civil Evidence Act 1968:
(1) The right of a person in any legal proceedings other than criminal proceedings
to refuse to answer any question or produce any document or thing if to do so would tend to expose that
person to proceedings for an offence or for the recovery of a penalty—
(a) shall apply only as regards criminal offences under the law of any part of the
United Kingdom and penalties provided for by such law; and
(b) shall include a like right to refuse to answer any question or produce any
document or thing if to do so would tend to expose the spouse or civil partner of that person to proceedings
for any such criminal offence or for the recovery of any such penalty.
2.2.5 Public
Interest
- In all analysed systems, public interest forms another reason not to
give evidence. Differences arise as to whether this interest is subject to review by courts, supervisory
authorities, or not at all.
- The US recognizes a privilege for military or
state secrets when disclosure might harm the national defence or US international relations.[111] This privilege is
absolute. It is assessed by the court hearing the matter. There is also ‘executive
privilege’ for certain confidential presidential communications.[112]
- In Israel, national interests and public interests are covered in
Sec 44–46 Evidence Ordinance. If the security of the state or foreign relations are
concerned, no evidence shall be given unless a Supreme Court judge finds that, in a balance of
interests, disclosure is more important.[113] If only a public interest is concerned, the
court dealing with the matter is to balance the interests.[114] Such petitions shall be heard in camera.[115] In one such case, the Israeli Supreme Court
accepted the condition made by the State, for inspection of certain documents, which contained sensitive
security information, that the plaintiffs and their representatives would obtain the appropriate
security clearance that would allow them to view these classified materials.[116]J
- In England, public-interest immunity is a
principle of common law under which documents may be withheld from disclosure and inspection where
disclosure would be damaging to the public interest. In the leading case of Duncan v Cammell Laird and Co Ltd concerning damage claims
for a sunk submarine, the House of Lords held that the executive could impede the production of
documents – here the plans of the submarine – if contrary to the public interest, without
review by the court.[117] In Air Canada v Secretary of State for Trade, the House of Lords ruled that a judicial review of the governmental invocation of public
interest against discovery should only take place if the documents seem likely to support the case of
the party that seeks discovery.[118] Under Rule 31.19 ECPR, a person can apply to
the court to withhold inspection or disclosure of a document on the ground that disclosure would damage
the public interest.
- In Japan, a person can refuse to produce
documents containing matters that may harm the public interest or substantially hinder the performance
of public affairs.[119] The same applies to the witness examination of a public officer as regards confidential
information, unless the supervisory government agency approves.[120]
- German and Japanese law are closely aligned in this regard. Public
officers can only act as witnesses if supervisory authorities give their consent under special
provisions.[121] Regarding document production, no special provisions exist in the civil procedural
code; accordingly, the general rules apply.[122]
2.2.6 Trade,
Technical, Professional, and Similar Secrets
- Trade and similar secrets are protected by all analysed systems;
scopes differ.
- The German system provides for quite broad reasons to refuse to give
evidence, namely when facts are entrusted to persons by virtue of their office, profession, or
status.[123] Further, a witness can refuse to answer questions if to do so would require the witness
to disclose a technical or trade secret.[124] The secret may belong to the witness or a
third party whose secret the witness is obligated to keep.[125] This needs to be distinguished, though, from
judicial safeguards to protect trade secrets in proceedings by limiting a party’s access to secret
documents, excluding the public from the hearing or redacting parts of the judgment to be
published.[126]
- Finally, a witness may refuse to testify if the answer can cause a
proprietary loss to the witness or if the party is a relative.[127] This is the case if the statement would
reveal a claim or facilitate its assertion[128]. Yet, mere indirect damage would not suffice, eg,
if the witness is the director or shareholder of a limited company with separate legal
personality.[129] Nor is it sufficient if the witness has signed a non-disclosure agreement including a
penalty clause because the witness is not at fault and must, therefore, not pay the penalty if legally
obliged to testify.[130]
- In the US, trade secrets are protected by state
laws. For example, under the Texas Rules of Evidence, a person can refuse to disclose a trade secret
owned by them, unless the court finds that non-disclosure will tend to conceal fraud or otherwise work
injustice.[131]
- In England, the protection of trade secrets is part of the law of
equity; at the same time, it is influenced by the Trade Secrets Regulations 2018[132] which is still in
force after Brexit even though it is based on the EU Trade Secrets Directive 2016/943.
- In Israel, the rule regarding non-disclosure of commercial secrets
reflects the adoption of the proportionality test as the yardstick for deciding arrangements under which
documents containing trade secrets are disclosed. The test is if ‘the interest in non-disclosure
of the evidence is greater than the need to disclose it for the purposes of the doing of
justice’.[133] The court must also take account of the position presented by third parties to whom the
trade secrets arguably belong.[134]
- Japan foresees a privilege not only for trade
and professional secrets,[135] but also for documents prepared exclusively for the use of the person (legal entity or
natural person) who possesses them.[136] This latter privilege originates from
pressure exercised by the business community, centred on large companies that were often sued by
consumers. In such cases, it was not uncommon for the consumer to request disclosure of the
company’s internal documents. In many cases, disclosure was not refused on the basis of trade
secrets or business secrets. Therefore, the business communities and several other groups strongly
insisted on introducing a provision which would allow the refusal of a document production order on the
grounds that it was a document prepared for the internal use of the organisation only. However, this
reason for refusal has been criticized since its enactment, and calls for its abolition have been made
in the academic literature.[137]
2.2.7 Work
Product
- Not far removed from this Japanese internal use privilege is the
privilege of work product known in the US and Israel.
- This protection guards against required disclosure of work done by
an attorney or prepared at an attorney’s direction in anticipation of litigation. It does not,
therefore, protect work done by lawyers for other reasons, such as providing business advice to their
clients about the client’s general business. Even where information is gathered in anticipation of
litigation, the protection does not cover factual information garnered by a party in anticipation of
litigation, even if obtained by counsel. Thus, an interrogatory asking for the identity of all witnesses
to the accident at issue in a case must be answered, including witnesses identified by the lawyer in
preparation for litigation.
- In the US, this protection is not ‘absolute’, but can
cover many activities of lawyers and others working to prepare for pending or prospective litigation.
First recognized by the US Supreme Court in 1947[138], it is now embedded in a Federal Rule.[139]
- Because this protection is not absolute in the US, the other side
can obtain work product materials if it can show that it has a ‘substantial need’ for them
and that it ‘cannot, without undue hardship, obtain their substantial equivalent by other
means’.[140] Given the breadth of US American discovery, and the variety of means for pursuing it,
such showings are not often made. However, even if such a showing is made, an attorney’s
‘opinion work product’ is almost sacrosanct.[141]
- In Israel, this privilege applies only to documents prepared for the
litigation and does not cover documents that would have been prepared in any case, regardless of the
expectation that proceedings will take place.[142]
2.2.8 Settlement Negotiations
- Important in this context are further privileges for information
exchanged in the course of settlement negotiations. Common law jurisdictions recognize privileges in
this regard.
- In Israel, documents and materials exchanged between parties in the
course of settlement negotiations are not admissible in court, provided that these documents or
statements are the product of bona fide exchange between the parties.[143] The privilege also extends to documents
prepared for the purpose of Alternative Dispute Resolution (ADR) proceedings. The conditions for such a
privilege have been stipulated in a Supreme Court decision[144]: (1) The privilege applies not only to the
materials prepared when the ADR proceedings were pending, but also when such proceedings were
anticipated. Proof that there was a real dispute between the parties at that time, and the degree of
sincerity and seriousness of the contacts between the parties, as well as the expectation that ADR
proceedings will take place, serve as a yardstick for the existence of such proceedings. (2) The
materials were prepared predominantly in order to serve a party during the ADR proceedings, regardless
of whether they were prepared while the proceedings were taking place or in anticipation that they will
take place. (3) There may be exceptional cases in which a weighty public interest may overcome the
value of maintaining the privilege and justify the disclosure of the privileged materials. It is only
both parties who can waive the privilege, not the mediator.[145]
- In English law, this is called without prejudice
privilege: documentation, particularly correspondence, which arises in the course of settlement
negotiations, may give rise to a without prejudice privilege. Such documents cannot be used as evidence
in court by either side. However, the parties may waive this privilege.
- In the US, the substantially equivalent privilege is referred to as
settlement privilege, under which a claim cannot be (dis-)proven by conduct or a statement made during
negotiations about the claim.[146]
- Other systems, like Germany, do not have such strict rules. Rather,
the parties’ submissions or offers will usually not be regarded as binding, but the documents
submitted may be used. In case of mediation, only the mediator and those involved in the administration
of the mediation process shall not be compelled to give evidence in subsequent proceedings;[147] other submissions
are not protected either.[148]
2.2.9 Journalists’ Sources
- This is a privilege that many systems have to a varying degree. Its
extent appears to be relevant to the World Press Freedom Index ranking.[149]
- In Israel, the Supreme Court held that, even though such a privilege
is not mentioned in the Evidence Ordinance, reporters cannot be compelled to disclose their information
sources.[150] Such a privilege is necessary to preserve and promote the freedom of the media, which
is a necessary aspect of freedom of expression in a liberal, democratic society. The Supreme Court held
further that, since this privilege is given in the public interest, it has to be balanced against other
public interests, and is therefore qualified. Its limits are to be determined in each case at the
discretion of the court.
- In the US, the Supreme Court held that a journalist could not invoke
the First Amendment (freedom of speech) to withhold confidential information from a grand
jury.[151] In
the aftermath, many US states enacted rules to shield journalists from having to disclose their
sources.[152]
- In England, in media and communications claims, Rule 53.6 ECPR
protects the sources of information: Unless the court orders otherwise, a party will not be required to
provide further information about the identity of the defendant’s sources of information.
- In Germany, a privilege extends to press and broadcasting staff
concerning the author or contributor of articles or broadcasts and documents, or the source
thereof.[153]
- In Japan, no explicit provision exists. However,
the Japanese Supreme Court held that the privilege for professional secrets[154] extended to a reporter,
requiring a balance of interests between media and judiciary.[155]
2.2.10 Other
Reasons
- In Japan, there is a privilege for documents related to criminal
proceedings.[156] However, limited disclosure may be requested under the procedures of the Japanese Code
of Criminal Procedure and the procedures approved by case law of the Supreme Court. The origin of this
privilege was the executive’s fear that the rules in the system of disclosure of evidentiary
documents and case records in criminal proceedings would be circumvented by the system of disclosure in
civil proceedings. The idea is that if a document is needed as evidence in civil proceedings, it shall
be obtained according to the disclosure system in criminal proceedings. However, police officers, public
prosecutors’ offices, and criminal courts that store documents related to criminal proceedings
cannot properly determine the necessity and relevance of specific evidence in civil proceedings.
Consequently, proposals to abolish the privilege have been made. In addition, several recent Supreme
Court decisions allow the obtaining of documents related to criminal proceedings by the document
production order within civil proceedings, under strict requirements considering the disclosure system
of the Code of Criminal Procedure.
- In England, a special provision pertains to requests for evidence in
foreign courts, eg, under the Hague Evidence Convention. The provision allows for the evidence to be
taken but not released to the foreign court until it has been determined whether a foreign privilege
applies.[157]
2.3 Privacy as
a Limit to Evidence Gathering
- Privacy as such does not play a major role as a limit to evidence
gathering for three reasons: First, systems have opted for broader or narrower approaches to access to
information, regardless of privacy. While broad approaches – such as US discovery – leave
little room for privacy concerns, narrow approaches are not primarily aimed at protecting privacy
either; rather, they are based on the principle of not arming the opposing party with the tools to win
the case.[158] Consequently, privacy is concerned, but only as an ancillary effect. Second, what could
be conceptualized as privacy privileges, already covered by other, more concrete notions, such as
privileges for family members, trade secrets, or protection of journalists’ sources. Third,
privacy is often not at issue when it comes to the limits to evidence gathering, but rather when it
comes to the admissibility of evidence gathered in violation of privacy, eg, testimony about a private
conversation that was overheard by a third party. As a result, this subsection appears to be a collage
of what each of the systems analysed emphasizes as being related to privacy:[159]
- In the US, although the Supreme Court has
recognized that privacy is constitutionally protected in certain circumstances, and privileges like the
marital privileges may provide significant protections for privacy interests, there is no general
privilege for privacy. As a prominent former federal judge noted in 1976: ‘A foreigner watching
the discovery proceedings in a civil suit would never suspect that this country has a highly-prized
tradition of privacy enshrined in the Fourth Amendment’.[160] On the contrary, the American attitude is
that ‘the law has a right to every person’s evidence’. In 1985, a federal judge, when
asked to compel the Coca-Cola Company to
disclose the formula for Coca-Cola through discovery, remarked: ‘Except for a few privileged
matters, nothing is sacred in civil litigation’.[161]
- Given the broad scope of American discovery,
there is a risk that it could undermine privacy interests. An important safeguard of these interests is
the power of a federal court to issue a protective order to protect the subject of discovery from
‘annoyance, embarrassment, oppression, or undue burden or expense’.[162] Such orders may require that
confidential information turned over through discovery be used only for the litigation of the pending
case. In some patent disputes, they may even require that the information be disclosed only to outside
counsel, and not even to the client (particularly important with regard to intellectual property). This
is also the case for the European Patent Court.[163]
- However, this does not amount to anything approaching a privilege.
An example is provided by financial information about a party. In US litigation, there are often claims
for punitive damages, and a conventional reference point for determining an appropriate amount of such
damages is the defendant’s wealth. As a consequence, there may often be an effort to obtain such
financial details through discovery. However, some states afford initial protection against such
discovery.[164]
- Other confidential materials are similarly subject to discovery.
Naturally, social media postings, even behind ‘privacy walls’, are often subject to
discovery. For example, plaintiffs in workplace harassment or sexual harassment cases have been required
to turn over personal diaries.[165]
- There is a source of partial protection for social media materials
and similar digital information. The US Stored Communications Act[166] forbids disclosure of such
communications by internet service providers. Literature on the Act emphasizes that it is out of date
(it was adopted in 1986) and also that it is extremely difficult to interpret and apply.[167] Perhaps the most
important point about this protection is that it only protects against disclosures by internet service
providers, and has no effect on discovery demands directed to the user, as with plaintiffs asked to hand
over their social media postings.
- In the member states of the European Union, the General Data
Protection Regulation (GDPR)[168] plays the central role regarding protection
of privacy. Yet, the impact on access to evidence does not appear to be significant. This is evident by
a 2023 decision of the Court of Justice of the EU (CJEU).[169] The court had to decide to what extent the
GDPR barred the production of a documentation. The case concerned a Swedish construction contract, in
which the defendant claimed to have been overcharged by the plaintiff and applied for production of tax
records showing that the number of hours invoiced did not correspond the number of workers employed. The
CJEU held that the GDPR was applicable to the question and that it was for the national court to balance
the interests concerned under the principle of proportionality, thereby elaborating on the concept of
data minimization.[170]
- The US Advisory Committee on Civil Rules addressed this issue in its
report on the April 2024 meeting, with a view to whether protective orders under Rule 26(c) USFRCP could
ameliorate the privacy concerns raised by the GDPR.[171] This question is to be addressed by a
subcommittee.
- The German system distinguishes between
prohibitions on the taking and on the use of evidence. Privacy concerns may constitute a reason to
prohibit the use of evidence and, therefore, render it inadmissible[172] if a constitutionally
protected fundamental right, particularly the general right of privacy under Articles 2(1), 1(1) of the
German Constitution, is violated. A violation only follows from a balancing of interests – the
right to privacy, on the one hand, and the interest in the use of the evidence, on the other.[173] For example, the
courts have held that it is inadmissible to use telephone conversations that have been recorded or
listened to[174],
clandestine video recordings[175], or the readings from diaries[176]. However, secret
recordings are permissible evidence if they are justified for the defence against criminal
acts.[177],
[178]
- Argentina is somewhat similar to Germany. Its
procedural laws do not contain strong limitations on access to evidence based on the protection of
privacy or intimacy. However, privacy has a constitutional status. Thus, it can prevent the taking of
evidence in ways that violate privacy (for example, appointing experts to apply scientific techniques to
sources of evidence that require invading the privacy of a party, or questions to a witness that may
unduly affect someone’s privacy). It can also prevent the introduction of evidence obtained in
violation of the right to privacy (for example, confidential documentation or audio and video records
illicitly obtained). Finally, evidence that has been introduced in the proceedings might have not to be
assessed if it was obtained in violation of the right to privacy. In all cases, the judicial decision on
admissibility or validity of evidence depends on a flexible jurisprudential proportionality test with no
statutory rigid provision that requires courts to balance the level of invasion of privacy against the
rights at stake.
- In Israel, privacy does not enjoy absolute protection. If it has
been violated, evidence can be used when the injured party agrees, the court allows for it, or the
wrongdoer is exempted.[179] The court may allow for the disclosure of evidence that if it is relevant, necessary
and proportionate.[180]
- Further, the protection of a bank’s customers against
disclosure of information regarding their bank accounts, savings, etc, reflects the client’s right
to privacy, the principle of good faith, expressly or implicitly, underlying the bank-client
relationship, as well as the banking customs, their role as agents and their fiduciary duty towards
their clients.
- The scope of the duty of secrecy, provided in Sec 15A Israeli
Banking Ordinance, 1941, and the obligation not to divulge any information delivered and not to present
any document submitted under the Banking Ordinance or under the Banking (Licensing) Law, were determined
after a principled, concrete balancing of the interests involved.[181]
- The Israeli Supreme Court held that even though the banks’
secrecy obligations were not mentioned in the Evidence Ordinance, the privileges mentioned in the
Ordinance are not a closed list.[182] In a case brought against the bank to
disclose the bank records of a deceased customer, the Supreme Court held that the privilege, arising
from the bank’s secrecy obligation, is a qualified one. The customer’s privacy rights must
be balanced against the right of another person to gain access to the information for one reason or
another. In striking that balance, the court has to take into account the following
considerations:[183]
- The necessity and importance of the information contained in the
bank records to decide the dispute among the parties;
- The existence of a prima
facie evidential basis that justifies the disclosure of the bank accounts.
Mere allegations do not suffice;
- The absence of alternative evidence that does not infringe on the
other party’s privacy;
- The scope of disclosure may not exceed that which is required to do
justice in those proceedings.
- In England, it was held that there was no
principle of law by which documents were protected from disclosure by reason of confidentiality
alone.[184] Further, Rule 31.22 ECPR sets limits on the subsequent use of disclosed documents and
completed electronic document questionnaires. A party may only use the documents for the purposes of the
proceedings, unless the owner of the document has consented, the document has been referred to in a
public hearing or the court has given permission. Conversely, the court can also disallow the reuse in
case of referral upon a party’s application.
2.4 The Role of
Proportionality
- We have seen in several instances above that proportionality plays a
role in the form of balancing interests in order to assess whether a limit to evidence gathering
applies. This subsection focuses on proportionality as another reason for limiting evidence gathering,
especially because it is too costly or too burdensome. In all the systems analysed – except for
Japan – proportionality plays a role, with cost being the most prominent factor in the balancing
process.
- As should be evident, US American discovery can be costly and
burdensome for the party providing the evidence. Since 1983, the Federal Rules have directed courts to
consider ‘proportionality’ when making decisions regarding discovery.[185] In 2015, that
consideration was re-emphasized. Regarding the 2015 rule amendment, Chief Justice Roberts observed in
his 2015 year-end report that the change was a ‘big deal’.[186] The new rule reads:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.
- There is uncertainty about the actual impact of this proportionality
effort.[187] In part, this is because the weight to be given to the interests involved is difficult
to assign. On the one hand, the party resisting discovery should ordinarily make a fairly definite
showing of the costs and burdens that compliance might entail. On the other hand, one is confronted with
the old credo ‘Thou shalt not ration justice’.
- Mere money hardly suffices to measure the importance of some
litigation. When proportionality was re-emphasized in the 2015 amendments, the Committee Note
accompanying the rule change stated that
monetary stakes are only one factor, to be balanced against other factors. The 1983
Committee Note [regarding the original adoption of proportionality in the rules] recognized ‘the
significance of the substantive issues, as measured in philosophic, social, or institutional terms’.
Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free
speech, and other matters, may have importance far beyond the monetary amount involved.[188]
- Shortly after the Chief Justice’s 2015 year-end report, a
district judge invoked the Chief Justice’s statements and forecast that ‘[t]he
proportionality standard is the instrument by which judges and practitioners are to bring about a change
in the culture of discovery’.[189] Views of judges and lawyers on whether such a
culture change has occurred vary widely.
- In Israeli law, cost-related considerations have always been taken
into account by the courts when ordering disclosure.[190]
- In Germany, proportionality is no overarching principle in
procedural law like in England.[191] Yet, proportionality can be identified as a
limit to the taking of evidence in certain cases. For example, there are several cases in which evidence
may not be taken if it cannot reasonably be expected to be taken. These include document production of a
third party[192],
the tolerance of visual or expert evidence[193], the personal appearance to a hearing[194], and acceptability of
examination[195].
As a general rule, the taking of evidence cannot reasonably be expected if the gravity of the intrusion
outweighs the significance of the matter in dispute.[196] While this is a matter of balance, it is not
limited to the privileges above, but goes further: For instance, a German court has refused to admit as
evidence a surgical procedure that would risk harming or even killing the opposing party.[197] Also, a third party
may refuse document production if the third party cannot spare the documents, not even for a short
period of time.[198] However, it should be noted that proportionality is a standard only very rarely applied
outside of privacy concerns.[199]
- Furthermore, expert witnesses must give notice if the costs of the
expert opinion are clearly disproportionate to the value of the subject matter in dispute.[200] This is the case if
the costs amount to about 50 % of the value in dispute.[201]
- In England, the concept of proportionality
dominates the Civil Procedure Rules, starting with the ‘overriding objective of enabling the court
to deal with cases justly and at proportionate cost’.[202] Proportionality relates to the amount of
money involved, the importance of the case, the complexity of the issue, and the financial position of
each party.[203] It applies when the court exercises any power conferred on it by the ECPR, including
disclosure orders.[204] The effect of this is illustrated by what was decided in a case following the Lord
Woolf’s reforms:
[T]he Parties no longer have any absolute right to insist on the calling of any
evidence they choose provided only that it is admissible and arguably relevant. The court may exclude
admissible and relevant evidence or cross-examination which is disproportionately expensive or
time-consuming, provided that to do so accords with the overriding objective.[205]
- For example, expert evidence is limited to a single joint
expert.[206] Accordingly, Lord Woolf stated
The starting point is: unless there is no reason for not having a single expert,
there should be only a single expert.[207]
- It is to be noted, however, that a single and court-appointed expert
is the rule in other systems like Germany[208], Japan[209], and Argentina[210].
- In Argentina, proportionality is an issue raised
when evidence collection is challenged from a constitutional perspective, for example, when privacy is
at stake or when a forced body search to obtain an expert opinion is at issue. Further, the system
imposes a peculiar proportionality limit on evidence gathering: the number of proposed witnesses is
restricted to eight. If strictly necessary, the judge can order to hear more.[211] By comparison, in England it
is the expression of proportionality that the court can order a single witness to be heard to prove a
fact even though the party bearing the burden of proof has named several.[212]
- In Japan, there are no provisions in the Code of Civil Procedure, as
in other states, and also in practice proportionality does not play a role in the course of disclosure
of evidence. However, as the example of a court-appointed expert shows, what in some systems is an
expression of proportionality is self-evident in other systems. Hence, from a comparative perspective,
it seems that proportionality is already exercised in many Japanese rules.
3 Limits as to
Until Which Stage of the Proceedings New Evidence Can Be Presented
- While evidence can generally be submitted until the end of the last
oral hearing, there is a tendency in the analysed systems to encourage parties submit evidence as early
as possible. Accordingly, courts retain the power to disallow late evidence to ensure efficient dispute
resolution.
3.1 General;
Limits to New Evidence in the First Instance
- In the US, disclosure must take place early in the proceedings
– the USFRCP speak of initial and pretrial disclosure.[213] Supplements or corrections are to be made in
a timely manner.[214] If a party fails to disclose or to supplement, the court may order that it is not
allowed to use this information; yet, other sanctions, in addition or instead, like the payment of
expenses caused by the failure, remain possible.[215]
- In Israel, the general rule is that the parties must present all
evidence in one step. In particular, no further evidence may be submitted after both parties have been
heard by the court of first instance. After this point in the proceedings, rebuttal evidence may be
presented only with the permission of the court. Such permission may be requested after the defence has
finished presenting its evidence. Permission will be granted only in exceptional cases where the
claimant has been taken by surprise by the arguments or evidence presented by the other party.
Permission may also be granted if the presentation of such evidence is necessary to undermine the
credibility of a defence witness. In any case, it is within the discretion of the court of first
instance to decide this matter and an appellate court will intervene only for serious reasons taking
into account the nature of the additional evidence, the stage of the proceedings, the question of
whether the requesting party was, or should have been, aware of the other party’s evidence and the
like. However, it is recognized that there are cases in which the need to uncover the truth outweighs
the interest in the finality of the judicial proceedings.[216]
- The English system starts with the general rule that a case is to be
dealt with expeditiously and fairly.[217] Particularly, the parties are under a duty to
disclose all relevant evidence before trial. This duty applies during the proceedings. New evidence may
ordinarily be introduced at any stage of the proceedings.[218] However, the court may use its power to
control evidence to exclude evidence that would otherwise be admissible.[219]
- For example, the High Court admitted two additional witness
statements on the day of the trial.[220] Both additional witness statements provided
explanatory evidence for documents that had been disclosed as part of continuing disclosure. Where
information becomes available after directions for filing and serving have been issued, it is not
‘late’, and it is not a defence to sanction (the sanction being inadmissibility of the
evidence).
- Before the Woolf Reforms, the process of discovery was in the hands
of the parties.[221] The post-Woolf approach is to limit disclosure to the minimum necessary. The ultimate
responsibility has now shifted to the judges as active case managers.[222] The court issues the order
for standard disclosure[223] and orders for specific disclosures[224].
- So-called pre-action protocols applicable in some types of
cases[225] are meant to further reduce the need for (even standard) disclosure. Their objective is
to encourage early exchange of information, enable parties to avoid litigation, and support the
efficient management of proceedings where litigation cannot be avoided.[226]
- In Germany, there are no rules specifically for the presentation of
new evidence; the general rules apply here: Evidence submitted after the oral hearing is
inadmissible.[227] Further, the court is in charge of the time limits; the presiding judge sets these
limits and closes the oral hearing[228]. If the court sets a deadline for the submission
of evidence, with which a party does not comply, the evidence is inadmissible, unless the admission of
the evidence into the proceedings would not delay the process of dealing with and terminating the legal
dispute, or the party provides a sufficient excuse for such delay.[229] If a party breaches its duty
to expedite the proceedings by failing to request the taking of evidence in a manner consistent with
diligent conduct of the proceedings,[230] or by failing to request the taking of
evidence where the opponent may respond until the oral hearing[231], the court may refuse the request if, in its
discretion, the settlement of the dispute would be delayed and the party’s delay is due to gross
negligence.[232]
- New evidence means any evidence that could have possibly been
introduced by the end of the last oral hearing. This is clear from a provision on subsequent
proceedings[233]:
new objections can only be introduced in a new set of proceedings if their objective grounds did not
exist before the end of the last oral hearing in the prior proceedings. The purpose of this provision is
to safeguard res judicata and, therefore, legal
certainty.
- Civil proceedings in Japan are divided into two main stages. The
first stage is for marshalling of issues and evidence,[234] while the evidence is examined at the second
stage, which is similar to the trial stage in the US.[235] The marshalling stage is designed to identify
the case’s major issues and important pieces of evidence early in the proceedings to resolve the
dispute promptly and efficiently. Once a common understanding of the issues and evidence has been
reached, the examination focuses on those points. Thus, once the marshalling stage has been completed,
the parties will generally only be able to present evidence at the subsequent trial stage, which is
important for finding the truth of the case. However, there is no direct sanction for disregarding the
result of this stage. Consequently, as in Germany, the last opportunity to present new evidence is the
last oral hearing.
- Also as in Germany, it is the court that has the power to determine
that new evidence can no longer be presented. If the presentation of evidence is delayed, either
intentionally or by gross negligence, and were to delay the procedure, the court may refuse to admit the
presentation of the evidence.[236]
- The civil procedure codes of the Argentinian states are generally
strict as to when evidence must be submitted. The rule is that parties must present evidence in their possession (particularly
documents) and offer all other evidence
(identify it) in their first pleadings. Otherwise, it is inadmissible. New facts or new evidence are
exempted. Here, different time limits with rigid rules of preclusion apply.
3.2 Limits to
New Evidence in Appellate Proceedings;
Reopening of Proceedings due to New Evidence
- In all the systems analysed, there is at least a tendency to
disallow new evidence in appeal. Everywhere, the appellate courts retain discretion.
- In the US, whereas the parties have broad access to information in
the first instance, the appellate court will only consider the record of the lower court. If a party
moves to reopen the proceedings, it must show that newly discovered evidence existed at the time of the
trial, but that it was excusably ignorant of the facts despite of its due diligence. Further, the newly
discovered evidence must be admissible and capable to probably change the outcome of the first
trial.[237] Interestingly, on their face the provisions are similar to the ones in Austria, where
proceedings can be reopened in cases of nova reperta (newly appeared).[238] In practice, however, applications differ:
whereas in the US, such motions are only very rarely granted, Austrian courts are much more
lenient.
- In Israel, in general a party must not submit new evidence in
appeal. Exceptions are made when the appellate court holds that that the new evidence may affect the
result of the appeal and that, either the evidence could not have been known to the party acting in due
diligence and could therefore not have been presented in time to the court of first instance or the
presentation of the new evidence is necessary to prevent the miscarriage of justice.[239]
- In Germany, the consideration of new facts on appeal has been
limited since 2002. Facts, and therefore evidence, which could not be presented at first instance
because they only came to light after the last oral hearing[240], or because the appellate court (or of the
doctrinally so-called second instance[241]) views the case differently[242], or because facts were
not presented because of a procedural error by the court of first instance[243], are admissible. In the third
instance, new facts cannot be introduced and the Federal Court of Justice reviews judgments only on
points of law.[244]
- As to the possibility of using new evidence in subsequent
proceedings, German law provides that, generally, new proceedings can only be initiated based on facts
arising from events, new proceedings can generally only be initiated based on facts arising from events
that occurred after the last oral hearing.[245] In addition, the case may be reopened if a
party finds or is able to use a document that would have led to a more favourable decision.[246] it is also possible
to reopen the case if a criminal offence has led to the judgment (wrongful oath[247]; forged document[248]; knowingly false
testimony or expert opinion[249]; criminal offence in the development of the
judgment by a party representative or judge[250]).
- Eventually, the hearing can be resumed after the last oral hearing
and before the judgment of first instance is rendered if facts are presented that would constitute a
reason to reopen the proceedings also after pronouncement of the judgment.[251]
- In Japan, parties are allowed to present new evidence in the second
instance.[252] However, since the second instance court may also rely on the result of the examination
of evidence at first instance,[253] the motion to admit the documents, goods,
witnesses as evidence may be denied at the discretion of the court if the court considers that the
evidence examined in the first instance is sufficient and the new evidence is unnecessary.
- However, the third instance court only has the power to hear points
of law and not of facts,[254] so it is not possible to present new evidence at the third instance.
- In England, although the appellate court has all the powers of the
lower court and may accept new evidence,[255] it will rarely do so as this would run
counter to the ‘cards on the table approach’ of disclosure. Consequently, the rule is that
the appellate court will not hear oral evidence or accept evidence that had not been before the lower
court.[256]
- Ordinarily, the appellate courts will only permit new evidence if it
could not have been obtained with reasonable diligence for use at trial. However, where it is alleged
that a judgment was obtained by fraud, such restrictions will not normally apply.[257]
- In England, a case can be reopened after appeal under three
conditions: to avoid real injustice, if the circumstances are exceptional and make it appropriate to
reopen the appeal and if there is no alternative effective remedy.[258] Purpose of this strict
standard is to safeguard the finality of the judgment. However, the court can reopen proceedings at its
discretion if orders and judgments made but not yet sealed.[259] This discretion is to be exercised in light
of the ‘overriding objective of enabling the court to deal with cases justly’.[260]
- In Argentina, if the first instance court has denied the production
of evidence and, consequently, a party has lost, this party may ask the appellate court to produce the
evidence as part of the appellate review (so-called replanteo de
prueba).
4 Review of
Orders to Produce Evidence
- Regarding the appellate review of orders to produce evidence, there
is no consensus among the systems analysed. In the US and Israel, review is limited to after the final
judgment has been rendered; Germany and Argentina exceptionally provide for isolated review of orders;
however, in Japan and England, generally every order can be appealed. Yet, except for Japan, all of them
tend to be reluctant to review orders solely for the production of evidence. In this context, it should
be noted that while this section focuses on the appellate review of orders to produce evidence, such
orders are neither subject to any particular standard or means of review.
- In the US, most trial court judges come to the bench with decades of
hands-on experience as trial attorneys in the court over which they ultimately preside. Appellate judges
do not necessarily come from the trial court bench and may not have similar experience with the kinds of
decisions that trial courts must make about permitting or denying discovery.
- As a consequence, the limits of evidence gathering are ordinarily
administered by trial courts. Under the ‘final judgment rule’ prevailing in the US, recourse
to the appellate courts is ordinarily not permitted until the entire case is over in the trial
court.[261] By that time, discovery disputes may seem an unimportant bygone. Often, the party
unhappy with a discovery ruling has ultimately won the case. The ordinary standard of review is
abuse of discretion – unless the trial court
openly flaunted the applicable legal standard, the appellate court will not disturb the decision unless
it is far beyond the pale. And given the multitude of factors that influence such decisions in
individual cases, this will rarely be the case.
- Israeli law is close to that of the US. As part of the reform of the
ICPR, which came into effect on 1 January 2021, Israel adopted the final judgment rule. Consequently, recourse to the appellate
courts is ordinarily not permitted until the entire case has been heard in the trial court. By then,
discovery disputes will have become moot like in the US. To be sure, even before that, the appellate
court’s review was strictly limited, and intervention could be expected only if the trial court
had erred substantially in its application of the law.
- In Germany, generally, orders concerning the production of evidence
can only be challenged together with the final judgment.[262] Exceptions, where orders can be challenged
separately, are the lawfulness of the refusal to testify[263] and the order not to refuse an
expert.[264] The order instructing one or the other manner of taking evidence cannot be
appealed.[265] There is no specific standard for review of orders concerning evidence
production.
- In Argentina, rulings on admission or refusal of evidence offered by
the parties to be produced during the trial are generally not subject to immediate appellate
review.[266] However, case law provides for exceptional cases of immediate appellate review where
the damage caused by a court order relating to evidence must be remedied without delay, eg, when serious
constitutional rights or guarantees would be infringed if the evidence were produced.
- In England, any decision of a court may be appealed.[267] However, there will
generally be a review, not a rehearing.[268]
- In Japan, the court order to produce evidence can be challenged
separately. The appellate court may freely decide anew. This power of the appellate court has nothing to
do with the organization of the courts.
Abbreviations and
Acronyms
ACCP
|
Code of Civil Procedure (Argentina)
|
ADR
|
Alternative Dispute Resolution
|
Art
|
Article/Articles
|
ATCCP
|
Code of Civil Procedure (Austria)
|
BGH
|
Bundesgerichtshof (Federal Court of
Justice) [Germany]
|
BVerfG
|
Bundesverfassungsgericht (Federal
Constitutional Court) (Germany)
|
cf
|
confer (compare)
|
ch
|
chapter
|
CJEU
|
Court of Justice of the European Union
|
ECLI
|
European Case Law Identifier
|
ECPR
|
Civil Procedure Rules (England & Wales)
|
ECtHR
|
European Court of Human Rights
|
ed
|
editor/editors
|
edn
|
edition/editions
|
eg
|
exempli gratia (for example)
|
ELI
|
European Law Institute
|
etc
|
et cetera
|
EU
|
European Union
|
EUR
|
Euro
|
ff
|
following
|
fn
|
footnote (external, ie, in other chapters or in citations)
|
GCCP
|
Code of Civil Procedure (Germany)
|
GDPR
|
General Data Protection Regulation (EU)
|
ibid
|
ibidem (in the same place)
|
ICPR
|
Civil Procedure Regulations (Israel)
|
ie
|
id est (that is)
|
JCCP
|
Code of Civil Procedure (Japan)
|
juris-para
|
paragraph(s) on database juris.de
|
n
|
footnote (internal, ie, within the same chapter)
|
no
|
number/numbers
|
para
|
paragraph/paragraphs
|
PD
|
Practice Direction
|
PDPACP
|
Pre-Action Conduct and Protocols
|
pt
|
part
|
RSC Order
|
Rules of the Supreme Court (UK)
|
Sec
|
Section/Sections
|
supp
|
supplement/supplements
|
trans/tr
|
translated, translation/translator
|
UK
|
United Kingdom
|
UP
|
University Press
|
US / USA
|
United States of America
|
USC
|
United States Code
|
USD
|
United States Dollar
|
USFRCP
|
Federal Rules of Civil Procedure (US)
|
USFRE
|
Federal Rules of Evidence (US)
|
v
|
versus
|
vol
|
volume/volumes
|
Legislation
International/Supranational
Directive of the European Parliament and of the Council on the protection of
undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and
disclosure, 2016/943 of 8 June 2016 (EU).
Directive of the European Parliament and of the Council on certain aspects of
mediation in civil and commercial matters, 2008/52/EC of 21 May 2008 (EU).
58 Agreement on a Unified Patent Court (EU).
Rules of Procedure of the Unified Patent Court (EU).
Regulation on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data, 2016/679 of 27 April 2016 (EU).
National
Bundesrechtsanwaltsordnung (Federal Code for Lawyers)
(Germany).
California Code of Civil Procedure (US).
Civil Code of California (US).
Civil Procedure Regulations 2021 (Israel).
Civil Procedure Rules 1998 (UK).
Civil Procedure Rules in the Court for Family Affairs, 5781-2020 (Israel).
Code of Civil Procedure 1996 (Japan).
Commercial Torts Law, 5759-1999 (Israel).
Constitution of the United States (US).
Evidence Ordinance [New Version], 5731-197 (Israel).
Federal Rules of Civil Procedure (US).
Federal Rules of Evidence (US).
Gesetz zum Schutz von Geschäftsgeheimnissen (Act
on the Protection of Trade Secrets) (Germany).
Grundgesetz (Basic Law for the Federal Republic of
Germany) (Germany).
Mediationsgesetz (Mediation Act) (Germany).
Practice Direction Pre-Action Conduct and Protocols (UK).
Protection of Privacy Law, 5741-1981 (Israel).
Rules of the Supreme Court Order 24 (UK) (out of force).
Texas Rules of Evidence (US).
Trade Secrets (Enforcement, etc) Regulations 2018, SI 2018/597 (UK).
United States Code (US).
Zivilprozessordnung (Code of Civil Procedure)
(Germany).
Cases
International/Supranational
O‘Halloran and Francis v United Kingdom, Case 15809/02
and 2564/02 (ECtHR) Judgment 29 June 2007 [ECLI:CE:ECHR:2007:0629JUD001580902].
Norra Stockholm Bygg AB v Entral AB, Case C-268/21 (CJEU),
Judgment 2 March 2023 [ECLI:EU:C:2023:145].
National
Germany
Case 1 BvR 1611/96, 1 BvR 805/98 (BVerfG, Germany), Order 9 October 2002 [BVerfGE
106 28].
Case 1 BvR 285/06 (BVerfG, Germany), Chamber Order 23 November 2006 [NJW 2007
1194].
Case 12 U 180/01 (OLG Karlsruhe, Germany), Judgment 8 November 2001 [NJW 2002
2799].
Case 29 W 1352/97 (OLG München, Germany), Order 18 June 1997 [NJW-RR 1998
1495].
Case 4 StR 519/63 (BGH, Germany), Judgment 21 February 1964 [BGHSt 19 325].
Case 8 U 166/83 (OLG Düsseldorf, Germany), Judgment 14 June 1984 [VersR 1985
457].
Case I ZR 68/16 (BGH, Germany), Judgment 27 July 2017 [NJW 2018 68].
Case IX ZR 243/17 (BGH, Germany), Judgment 17 May 2018 [NJW 2018 2319] para
17.
Case VI ZR 104/57 (BGH), Judgment 20 May 1958 [BGHZ 27 284].
Case VIII ZR 70/07 (BGH, Germany), Judgment 17 February 2010 [NJW-RR 2010
1289].
Israel
Bank Discount Ltd v Shiri, Application for Permission to
Appeal 2235/04 (Israel), Nevo e-database (27 June 2006).
Ben Zion Zitrin v The Disciplinary Tribunal of the Bar Association, Civil Applications 298/86 (Israel), Nevo e-database (7 April 1987).
Ellern Bank Ltd v Simcha Bunim Singer, CA 327/68 (Israel),
Nevo e-database (11 October 1968).
Hadassah Medical Organization (CC) v Gilad, Application for
Permission to Appeal 1412/94 (Israel), Nevo e-database (8 November 1995).
HaMagen Insurance Co Ltd v Clalit Health Services, CA
8221/05 (Israel), Nevo e-database (15 November 2005).
Ken Navon Ltd v Itzhaki Ozel Ltd, Application for Permission
to Appeal 4876/16 (Israel), Nevo e-database (19 September 2016).
Levi v Drori, Application for Permission to Appeal 1496/15
(Israel), Nevo e-database (21 May 2015).
Ploni v Kupat Holim Meuhedet, Application for Permission to
Appeal 6171/17 (Israel), Nevo e-database (4 September 2017).
Ploni v Plonit, Application for Family Appeal 3542/04
(Israel), Nevo e-database (20 June 2005).
Rami Levi Hashikma Marketing Ltd v Dahan, Application for
Permission to Appeal 2376/13 (Israel), Nevo e-database (8 July 2013).
Skoler v Djerbi, Application for Permission to Appeal
1917/92 (Israel), Nevo e-database (23 November 1993).
State of Israel v Hizi, Application for Permission to Appeal
7114/05 (Israel), Nevo e-database (11 December 2007).
State of Israel v Hizi, Application for Permission to Appeal
7114/05 (Israel), Nevo e-database (11 December 2007).
The Council of Higher Education v Haaretz Daily Newspaper Ltd, Appeal Administrative Petition 9135/03 (Israel), Nevo e-database (19 January 2006).
Union Bank of Israel v Azoulay, Application for Permission
to Appeal 6546/94 (Israel), Nevo e-database (6 July 1995).
Union Bank of Israel v Azoulay, Application for Permission
to Appeal 6546/94 (Israel), Nevo e-database (6 July 1995).
Sales v Sales, Application in Family Appeal 3542/04
(Israel), Nevo e-database (20 June 2005).
UK
AIC Ltd v Federal Airports Authority of Nigeria (Supreme Court, UK) [2022] UKSC 16.
Air Canada v Secretary of State for Trade (House of
Lords, UK) [1983] 2 AC 384 (HL).
Blunt v Park Lane Hotel Ltd (Court of Appeal, England
and Wales, UK) [1942] 2 KB 253 (CA).
Duncan v Cammell Laird and Co Ltd (House of Lords, UK) [1942] AC 624 (HL).
GKR Karate (UK) Ltd v Yorkshire Post Ltd (Court of
Appeal, UK) [2000] 1 WLR 2571, 2577 (CA).
Peet v Mid-Kent Healthcare Trust (Court of Appeal, UK)
[2002] 1 WLR 210, 215 f (CA).
Ras Al Khaimah Investment Authority v Azima (Court of
Appeal, UK) [2021] EWCA Civ 349.
Regina v Derby Magistrates’ Court (House of
Lords, UK), ex parte B [1996] AC 487 (HL).
Science Research Council v Nasse (House of Lords, UK) [1980]
AC 1028.
Wheeler v Le Marchant (Court of Appeal, England and
Wales, UK) [1881] 17 Ch.D 681 (CA).
US
Branzburg v Hayes (Supreme Court, US) [408 U.S. 665
(1972)].
Branzburg v Hayes (Supreme Court, US) [408 U.S. 665
(1972)].
Coca-Cola Bottling Co v Coca-Cola Co (District Court,
Delaware, US) [107 F.R.D. 288, 290] (District of Delaware 1985).
Consolidation Coal Co v Bucyrus-Erie
Co (Supreme Court of Illinois, US) [432 N.E.2d 250 (Ill. 1982)].
F.D.I.C. v Marine Midland Realty Credit Corp (District
Court, US) [138 F.R.D. 479, 479–80 (E.D. Va. 1991)].
Fisher v United States (Supreme Court, US) [425 U.S.
391 (1976)].
Hickman v Taylor (Supreme Court, US) [329 U.S. 495
(1947)].
Jaffee v Redmond (Supreme Court, US) [518 U.S. 1
(1996)].
Malloy v Hogan (Supreme Court, US) [378 U.S. 1
(1964)].
Simpson v University of Colorado (District Court,
Colorado, US) [220 F.R.D. 354] (District of Colorado 2004).
Trammel v United States (Supreme Court, US) [445 U.S.
40 (1980)].
United States v Arthur Young & Co (Supreme Court,
US) [465 U.S. 805 (1984)].
United States v Nixon (Supreme Court, US) [418 U.S. 683
(1974)].
United States v Reynolds (Supreme Court, US) [345 U.S.
1 (1953)].
United States v Zolin (Supreme Court, US) [491 U.S. 554
(1989)].
Upjohn Co v United States (Supreme Court, US) [449 U.S.
383 (1981)].
Waters v Drake (District Court, South District of Ohio,
US) [222 F.Supp.3d 582, 605] (S.D. Ohio 2016).
Wolfle v United States (Supreme Court, US) [291 U.S. 7
(1934)].
Zises v Department of Social Services (District Court, New
York, US) [112 F.R.D. 223] (E.D.N.Y. 1986).
Japan
X v Y, 1421 Saibansho Jihô 13 (Supreme Court, Japan),
Judgment 03 October 2006.
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[1] Postdoc at the University of Vienna,
Institute for Procedural Law.
I am grateful to my team members Richard Marcus, Talia Einhorn, Leandro Giannini,
Koichi Miki, and Michael Stürner for their national reports, on which this chapter is based;
further to the Part VII team, Burkhard Hess, and Enrique Vallines García for their comments on
the draft; finally, to Jelena Gvozden for their careful adaption of my contribution to the style
guide.
[11] As to the latter privilege, see
below para 63.
[13] Rule 1.1(1) ECPR, further see
below para 129.
[15] It should be noted that in some
systems the parties are seen as witnesses, while in others they are distinct. Where there is a
distinction, the (informal) examination of the parties, as in Germany, may still play an important role
in the court’s determination of the facts.
[16] See Sec 383–390
GCCP.
[17] Sec 142(2) GCCP. Further,
see below para 17. The situation is different, however, in Austria, where two distinct, yet similar,
provisions are set forth for document production, Sec 305 Austrian Code of Civil Procedure (ATCCP),
and witness examination, Sec 321–326 ATCCP.
[18] As to the term, see below para
23.
[19] For details see below para 30,
48, 69, 76.
[20] For details see below para 107
ff.
[21] For details see below para 45,
74, 78, 84, 95.
[22] Rule 31.22 ECPR. For details
see below para 120.
[23] Cf U Goren, Issues in Civil Procedure (in Hebrew, 13th edn, Nevo 2020) 383, with further references.
[25] Sec 446, 453(2), 454(1)
GCCP.
[26] L Rosenberg and P Gottwald,
Zivilprozessrecht (18th edn, C.H. Beck 2019) §
110, para 9.
[28] See B Hess,
‘Europäisches Zivilprozessrecht’ (2nd edn, De Gruyter 2021) para 11.35, 11.40–42;
L M Kahl, ‘Evidence before German Courts’ (26 March 2025) 11–13, available at
SSRN: https://ssrn.com/abstract=5210728 accessed 29 April 2025.
[32] Sec 144(2) GCCP referring to
sec 383 to 390 GCCP.
[33] Art 219 Japanese Code of
Civil Procedure (JCCP). Available in English online at https://www.japaneselawtranslation.go.jp/en/laws/view/2834/en accessed 25 July 2024.
[38] For details see below para 72,
79, 87.
[40] Art 387–388 Argentinian
Code of Civil Procedure (ACCP).
[41] Art 389 ACCP; R Berizonce
and E Oteiza, Civil Procedure in Argentina (Wolters Kluwer Law International 2021) para 375.
[42] In detail see below para
115.
[43] Rule 501 USFRE provides that
‘in a civil case, state law governs privilege regarding a claim or defence for which state law
supplies the rule of decision’.
[44] Rule 501 USFRE also provides:
‘The common law – as interpreted by United States courts in the light of reason and
experience – governs a claim privilege’.
[45] Prominent examples are
United States v Arthur Young & Co (Supreme
Court, US) [465 U.S. 805 (1984)] (refusing to recognize an ‘accountant’s privilege’)
and Branzburg v Hayes (Supreme Court, US) [408
U.S. 665 (1972)] (refusing to recognize a journalist’s privilege to refuse to disclose the
identity of a confidential informant).
[46] HaMagen Insurance Co Ltd v Clalit Health Services, CA 8221/05
(Israel), Nevo e-database (15 November 2005).
[47] F.D.I.C. v Marine Midland Realty Credit Corp (District Court,
US) [138 F.R.D. 479, 479–80 (E.D. Va. 1991)].
[49] Rule 26(b)(5)(A) US Federal Rules
of Civil Procedure (USFRCP). This rule requirement has led many courts to direct that the parties
provide a ‘privilege log’ listing each withheld item and the grounds for the claim of
privilege regarding that item. According to some, this requirement has generated stupendous costs but
little value, and there are proposals that the rules be changed to avoid waste in this regard.
[50] See Rule 26(b)(5)(B)
USFRCP.
[51] See Title 28 USC Sec 2074(b)
(forbidding rule changes that affect the scope of privileges).
[55] For the crime-fraud limitation in
the US, see United States v Zolin (Supreme
Court, US) [491 U.S. 554 (1989)] (lawyer-client communications of members of the Church of Scientology
could be subject to a subpoena by the US Internal Revenue Service on a showing that persuades a judge
– based on an in camera inspection of the
materials in issue – that there is a ‘factual basis adequate to support a good faith belief
by a reasonable person’ that the client’s objective in consulting the lawyer was to commit a
crime or fraud).
[56] J Wigmore, Evidence in trials and common law (McNaughton edn, 1961) para
2292.
[57] See R Park, D Leonard, A
Orenstein and S Goldberg, Evidence Law (3rd edn,
West 2011) para 12.04.
[59] See ibid para 12.06.
[61] Sec 383(1) No 6, 142(2)
GCCP; Art 220(iv)(c), 197(1)(ii) JCCP.
[62] M Huber and S Röß,
‘§ 383 ZPO’ in H-J Musielak and W Voit (ed), Zivilprozessordnung: Mit Gerichtsverfassungsgesetz: Kommentar (21st edn, Franz Vahlen 2024) para 10.
[63] Case IX ZR 243/17 (BGH, Germany),
Judgment 17 May 2018 [NJW 2018 2319] para 17.
[64] See, eg, H E O’Leary,
‘Criminal Antitrust and the Corporate Executive: The Man in the Middle’ (1977) 63(10)
American Bar Association Journal 1389 (describing the predicament of a middle-level executive told to
speak candidly to the company’s lawyer about corporate activities under investigation by the
authorities).
[65] Upjohn
Co v United States (Supreme Court, US) [449 U.S. 383 (1981)].
[66] See, eg, Consolidation Coal Co v
Bucyrus-Erie Co (Supreme Court of Illinois, US) [432 N.E.2d 250 (Ill.
1982)] (retaining ‘control group’ test for the corporate attorney-client privilege).
[67] Panel Discussion,
‘Antitrust Investigations after Upjohn’
(1982) 51 Antitrust Law Journal 127, 133.
[68] For Germany, see Sec 385(2)
GCCP; for Japan Sec 197(2) JCCP.
[69] Ploni
v Kupat Holim Meuhedet, Application for Permission to Appeal 6171/17 (Israel),
Nevo e-database (4 September 2017). In that case, the pertinent documents came into the hands of a
journalist.
[70] Ellern Bank Ltd v Simcha Bunim Singer, CA 327/68 (Israel), Nevo
e-database (11 October 1968). This case concerned a claim based upon an insurance policy covering
diamonds. The pertinent documents included investigation reports, documents and letters prepared by
assessors and experts on behalf of the insurance agents and at their request, in order to investigate
the merits of the claim before the proceedings had been initiated. The Supreme Court held that the
documents were privileged. Further see below Sec 2.2.7.
[71] Ken
Navon Ltd v Itzhaki Ozel Ltd, Application for Permission to Appeal 4876/16
(Israel), Nevo e-database (19 September 2016).
[72] Regina
v Derby Magistrates’ Court (House of Lords, UK), ex parte B [1996] AC
487 (HL).
[73] See Park et al (n 56) para
12.13.
[74] Jaffee
v Redmond (Supreme Court, US) [518 U.S. 1 (1996)].
[75] Park et al (n 56) para
12.15.
[76] A privilege for clergy was
rejected already in the nineteenth century, Wheeler v Le Marchant (Court of Appeal, England and Wales, UK) [1881] 17 Ch.D 681 (CA).
[77] Art 220(iv)(c) JCCP.
[78] Art 197(1)(ii) and (iii)
JCCP.
[79] Sec 383(1) No 4
GCCP.
[80] Sec 383(1) No 6
GCCP.
[81] Rosenberg and Gottwald
(n 25) para 22.
[84] The question of same-sex marriage
and other non-traditional arrangements, in regard to such privileges, may be evolving. But it is likely
that considerable formality would be necessary to claim coverage, particularly as to the privilege
against adverse spousal testimony. It might be too easy for someone to claim such a relationship to
prevent adverse testimony by an alleged romantic partner.
[85] See Park et al (n 56) para
12.15-12.17.
[86] Trammel v United States (Supreme Court, US) [445 U.S. 40
(1980)]. The idea was that if the witness spouse is willing to testify, there seems little marital
harmony to preserve.
[87] Huber and Röß
(n 61) para 1.
[88] Case I ZR 68/16 (BGH, Germany),
Judgment 27 July 2017 [NJW 2018 68] para 28; Huber and Röß (n 61)
para 10.
[89] Wolfle
v United States (Supreme Court, US) [291 U.S. 7 (1934)] 14.
[90] Case 1 BvR 285/06 (BVerfG,
Germany), Chamber Order 23 November 2006 [NJW 2007 1194].
[91] Rules 51–55 Civil Procedure
Rules in the Court for Family Affairs, 5781-2020 (Israel).
[93] O‘Halloran and Francis v United Kingdom, Case 15809/02 and
2564/02 (ECtHR) Judgment 29 June 2007 [ECLI:CE:ECHR:2007:0629JUD001580902], para 46.
[95] For example, Sec 384 No 2
GCCP reads: ‘Witnesses may refuse to testify: […] On questions, the answer to which would
result in the witness, or [a family member], being dishonoured, or if this would entail the risk of
their being prosecuted for a criminal offence or an administrative offence’. Sec 321(1) No 1
ATCCP and Art 196, 220(iv)(a) JCCP are similar.
[96] US Constitution, Amendment V:
‘No person shall be […] compelled in any criminal case to be a witness against
himself’.
[97] See, eg, Malloy v Hogan (Supreme Court, US) [378 U.S. 1
(1964)].
[98] See generally Park et al (n 56)
para 12.18.
[101] Sec 384 No 1 GCCP.
However, the exception under Sec 385 applies, see above para 62.
[102] Huber and Röß
(n 61) para 3.
[105] Fisher v United States (Supreme Court, US) [425 U.S. 391
(1976)].
[107] Art 196, 220(iv)(a)
JCCP.
[109] Sec 47 Evidence Ordinance [New
Version], 5731-197 (Israel), ‘Incriminating evidence’.
[110] Summarized in Blunt v Park Lane Hotel Ltd (Court of Appeal, England and
Wales, UK) [1942] 2 KB 253 (CA).
[111] See United States v Reynolds (Supreme Court, US) [345 U.S. 1
(1953)]; see generally Park et al (n 56) para 12.19.
[112] United States v Nixon (Supreme Court, US) [418 U.S. 683
(1974)].
[113] Sec 44 Evidence
Ordinance.
[114] Sec 45 Evidence
Ordinance.
[115] Sec 46 Evidence
Ordinance.
[116] State of Israel v Hizi, Application for Permission to Appeal
7114/05 (Israel), Nevo e-database (11 December 2007). See further G Raguan, ‘The State Secrets
Privilege: From Evidentiary Privilege to Executive Immunity in the United States’ in P Sharvit
Baruch and A Kurz (ed), Law and National Security: Selected
Issues (Institute for National Security Studies 2014) 127–129,
available at https://www.jstor.org/stable/resrep08957.11?seq=1 accessed 29 April 2025.
[117] Duncan v Cammell Laird and Co Ltd (House of Lords,
UK) [1942] AC 624 (HL).
[118] Air
Canada v Secretary of State for Trade (House of Lords, UK) [1983] 2 AC 384
(HL).
[119] Art 220(iv)(b) JCCP.
[121] Sec 376, 383 No 6 GCCP; Art 47
German Constitution.
[122] Sec 142(2), 383 No 6
GCCP; Art 47 German Constitution.
[123] Sec 383(1) No 6 GCCP.
[124] Section 384 No 3
GCCP.
[125] M Huber and S Röß,
‘§ 384 ZPO’ in H-J Musielak and W Voit (ed), Zivilprozessordnung: Mit Gerichtsverfassungsgesetz: Kommentar (21st edn, Franz Vahlen 2024) para 5.
[128] Huber and Röß
(n 61) para 3.
[130] Case 29 W 1352/97 (OLG
München, Germany), Order 18 June 1997 [NJW-RR 1998 1495].
[131] Rule 507(a) Texas Rules of
Evidence (US). Cf in this context also the ‘counsel’s eyes only’ protective court
orders, see below para 108.
[132] Trade Secrets (Enforcement,
etc) Regulations 2018, SI 2018/597 (UK), available at https://www.legislation.gov.uk/uksi/2018/597/contents/made accessed 29 April 2025.
[133] Sec 23 Commercial Torts Law,
5759-1999 (Israel).
[134] Rami Levi Hashikma Marketing Ltd v Dahan, Application for
Permission to Appeal 2376/13 (Israel), Nevo e-database (8 July 2013).
[135] Art 197(1)(ii), (iii),
220(iv)(c) JCCP.
[136] Art 220(iv)(d) JCCP.
[137] The contents of the amendment
proposal of the group represented by K Miki are included in K Miki and K Yamamoto (ed),
Civil Litigation Law Amendment Issues (2012,
Yuhikaku Publishing).
[138] Hickman v Taylor (Supreme Court, US) [329 U.S. 495
(1947)].
[139] Rule 26(b)(3) USFRCP.
[140] Rule 26(b)(3)(A)(ii)
USFRCP.
[141] See Rule 26(b)(3)(B) USFRCP
(directing that if the court orders disclosure of work product based on a showing of need, it
‘must protect against disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney o other representative concerning the litigation’). In the
same vein, consider Section 2018.030(a) California Code of Civil Procedure (US): ‘A writing that
reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not
discoverable under any circumstances’.
[142] Bank Discount Ltd v Shiri, Application for Permission to Appeal
2235/04 (Israel), Nevo e-database (27 June 2006); Hadassah Medical
Organization (CC) v Gilad, Application for Permission to Appeal 1412/94
(Israel), Nevo e-database (8 November 1995). In this case, the Supreme Court held that the report
prepared by a commission of inquiry, appointed by the Hadassah hospital to investigate a case of possible medical negligence, was not privileged. The
establishment of such committees of inquiry was part of a procedure carried out regularly by hospitals
to rectify mistakes and improve medical services, not necessarily in anticipation of litigation; cf
Goren (n 22) 383 f.
[144] Bank Discount Ltd v Shiri, Application for Permission to Appeal
2235/04 (Israel), Nevo e-database (27 June 2006).
[145] Levi v Drori, Application for Permission to Appeal 1496/15
(Israel), Nevo e-database (21 May 2015).
[146] Rule 408(a)(2) USFRE.
[148] For criticism see Hess
(n 27) para 12.12 with further references.
[150] Ben Zion Zitrin v The Disciplinary Tribunal of the Bar Association, Civil Applications 298/86 (Israel), Nevo e-database (7 April 1987).
[151] Branzburg v Hayes (Supreme Court, US) [408 U.S. 665 (1972)]
(refusing to recognize a journalist’s privilege to refuse to disclose the identity of a
confidential informant).
[152] Branzburg v Hayes (Supreme Court, US) [408 U.S. 665 (1972)]
Annotation, available at https://supreme.justia.com/cases/federal/us/408/665/ accessed 07 August 2024.
[153] Sec 383(1) No 5
GCCP.
[154] Art 197(1)(iii) JCCP.
[155] X v
Y, 1421 Saibansho Jihô 13 (Supreme Court, Japan), Judgment 03 October
2006. See also Y Taniguchi and others, Civil procedure in Japan (3rd edn, Juris 2018) 444, note 531.
[156] Art 220(iv)(e) JCCP.
[159] For this subsection, also see
the analysis in Marcus (n 13) para 101-113.
[160] S Rifkind, ‘Are We
Asking Too Much of Our Courts?’ (1976) 15(2-3) Judges‘ Journal 43.
[161] Coca-Cola Bottling Co v Coca-Cola Co (District Court, Delaware,
US) [107 F.R.D. 288, 290] (District of Delaware 1985).
[162] Rule 26(c)(1) USFRCP.
[163] Art 58 Agreement on a Unified
Patent Court (EU), Rule 262A Rules of Procedure of the Unified Patent Court (EU).
[164] See, eg, Sec 3295(c)
California Civil Code (US) (precluding discovery be a plaintiff regarding defendant’s financial
condition until plaintiff establishes a ‘substantial probability’ of prevailing on its claim
for punitive damages).
[165] See, eg, Zises v Department of Social Services (District Court, New York,
US) [112 F.R.D. 223] (E.D.N.Y. 1986); Simpson v University of
Colorado (District Court, Colorado, US) [220 F.R.D. 354] (District of
Colorado 2004).
[166] Title 18 USC Sections
2701-12.
[167] For discussion, see T
Ackerman, ‘Consent and Discovery Under the Stored Communications Act’ (2009) The Federal
Lawyer 42, 42; O Kerr, ‘A User’s Guide to the Stored Communications Act, and a
Legislator’s Guide to Amending It’ (2004) 72 George Washington Law Review 1208.
[168] Regulation on the protection
of natural persons with regard to the processing of personal data and on the free movement of such data,
2016/679 of 27 April 2016 (EU).
[169] Norra Stockholm Bygg AB v Entral AB, Case C-268/21 (CJEU),
Judgment 2 March 2023 [ECLI:EU:C:2023:145].
[170] See Art 5(1) lit c
GDPR.
[172] On admissibility of illegally
obtained evidence, see Giannini (n 1) para 38–51.
[173] Case 1 BvR 1611/96, 1 BvR
805/98 (BVerfG, Germany), Order 9 October 2002 [BVerfGE 106 28] para 59.
[174] Case VIII ZR 70/07 (BGH,
Germany), Judgment 17 February 2010 [NJW-RR 2010 1289] juris-para 28.
[175] Case 12 U 180/01 (OLG
Karlsruhe, Germany), Judgment 8 November 2001 [NJW 2002 2799] juris-para 9.
[176] Case 4 StR 519/63 (BGH,
Germany), Judgment 21 February 1964 [BGHSt 19 325] juris-para 19.
[177] Case VI ZR 104/57 (BGH),
Judgment 20 May 1958 [BGHZ 27 284] juris-para 11.
[178] For more examples see
Rosenberg and Gottwald (n 25) § 111, para 24.
[179] Sec 32 Protection of Privacy
Law, 5741-1981 (Israel).
[180] Sales v Sales, Application in Family Appeal 3542/04 (Israel), Nevo
e-database (20 June 2005). Information regarding a person’s income and his economic situation is
private and protected as such. Using a spouse’s information without that spouse’s permission
is an infringement of privacy. However, in a case litigated between the spouses, the court may order its
disclosure and inspection by the other spouse, if its disclosure is relevant, necessary and
proportionate. The Court noted that, since the family court proceedings are conducted in camera, the infringement of privacy is limited, and the
materials are not exposed to the public at large.
[181] Union Bank of Israel v Azoulay, Application for Permission to
Appeal 6546/94 (Israel), Nevo e-database (6 July 1995).
[182] Skoler v Djerbi, Application for Permission to Appeal 1917/92
(Israel), Nevo e-database (23 November 1993).
[183] Union Bank of Israel v Azoulay, Application for Permission to
Appeal 6546/94 (Israel), Nevo e-database (6 July 1995).
[184] Science Research Council v Nasse (House of Lords, UK) [1980] AC
1028.
[185] See Rule 26(b)(1)
USFRCP.
[187] Compare K R Berman,
‘Reinventing Discovery Under the New Federal Rules’ (2016) 42(3) Litigation 22
(‘It's a whole new ball game’) with L F Pulgram, ‘The Discovery Rules Have
Changed: But Will We?’ (2016) 42(3) Litigation 18 (questioning whether American lawyers will
actually change their habits).
[188] Committee Note to 2015
amendment to Rule 26(b)(1) USFRCP.
[189] Waters v Drake (District Court, South District of Ohio, US)
[222 F.Supp.3d 582, 605] (S.D. Ohio 2016).
[190] Cf eg, Ploni v Plonit, Application for Family Appeal 3542/04 (Israel),
Nevo e-database (20 June 2005); The Council of Higher Education v Haaretz
Daily Newspaper Ltd, Appeal Administrative Petition 9135/03 (Israel), Nevo
e-database (19 January 2006); State of Israel v Hizi,
Application for Permission to Appeal 7114/05 (Israel), Nevo e-database (11 December 2007).
[191] See below para 129.
[192] Sec 142(2)
sentence 1 GCCP.
[193] Sec 144(2)
sentence 1, 371(3) GCCP.
[194] Sec 141(1)
sentence 2 GCCP.
[196] W Zimmermann, ‘§
371 ZPO’ in W Krüger (ed), Münchener Kommentar zur
Zivilprozessordnung (6th edn, C.H. Beck 2020) para 28.
[197] Case 8 U 166/83 (OLG
Düsseldorf, Germany), Judgment 14 June 1984 [VersR 1985 457].
[198] A Stadler, ‘§ 142
ZPO’ in H-J Musielak and W Voit (ed), Zivilprozessordnung: Mit
Gerichtsverfassungsgesetz: Kommentar (21st edn, Franz Vahlen 2024)
para 8.
[199] See above para 114.
[200] Sec 407a(4)
sentence 2 GCCP.
[201] M Huber, ‘§ 407a
ZPO’ in H-J Musielak and W Voit (ed), Zivilprozessordnung: Mit
Gerichtsverfassungsgesetz: Kommentar (21st edn, Franz Vahlen 2024)
para 9.
[203] Rule 1.1(2)(c) ECPR.
[205] GKR
Karate (UK) Ltd v Yorkshire Post Ltd (Court of Appeal, UK) [2000] 1 WLR
2571, 2577 (CA).
[207] Peet v Mid-Kent Healthcare Trust (Court of Appeal, UK) [2002]
1 WLR 210, 215 f (CA).
[209] Taniguchi and others
(n 155), 435.
[210] Art 460–462 ACCP;
Berizonce and Oteiza (n 40) para 400.
[212] Rule 32.1(2) ECPR. The example
follows from M Stürner, ‘The Search for Principles: Paradigmenwechsel im englischen
Zivilprozessrecht?: Zugleich eine Besprechung von Neil Andrews, English Civil Procedure, 2003’
(2004) 103 Zeitschrift für Vergleichende Rechtswissenschaft 349.
[213] Rule 26(a)(1) and (3)
USFRCP.
[215] Rule 37(1) USFRCP. See further
R Marcus, ‘§ 2289.1 Automatic Exclusion of Undisclosed Information’ in C Wright and A
Miller (ed), 8B Federal Practice and Procedure (3rd edn, Thomson West).
[216] See Rule 66 Israeli Civil
Procedure Regulations, 5779-2018 (ICPR).
[217] Rule 1.1(2)(d) ECPR.
[220] Jones v Oven (High Court, UK) [2017] EWHC 1647 (Ch).
[221] See Rules of the Supreme Court
Order 24 (UK) (out of force).
[226] Cf Para 1.4 Practice Direction
– Pre-Action Conduct and Protocols (UK). They apply eg, on package travel claims.
[237] Rules 59 and 60(b)(2) USFRCP,
see also M K Kane, ‘§ 2808 Grounds for New Trial—Newly Discovered Evidence’ in C
Wright and A Miller (ed), 8B Federal Practice and Procedure (3rd edn, Thomson West).
[238] Section 530(1) No 7
ATCCP.
[240] Sec 529(1) No 2, 531(2)
sentence 1 No 3 GCCP.
[241] There is a terminological
divergence between legal systems. Some refer
to first, second, and third instances (eg, Germany), while others speak of a trial court, court of
appeal, and supreme court (eg, England). One
might object to the use of the term instance, as it
can imply the possibility of a (nearly) full review of the case, whereas appeals in cassation or
revision are typically limited to points of law and do not permit a reassessment of factual findings.
However, the terminology itself does not necessarily indicate the ambit of review. Accordingly, the following paragraphs adopt the
terminology used in each respective jurisdiction. For a general assessment of appeal see C Giabardo,
‘Availability of a First Appeal’ in B Hess, M Woo, L Cadiet, S Menétrey, and E
Vallines García (eds), Comparative Procedural Law and
Justice (2024) Part VIII Chapter 1 https://www.cplj.org/publications/8-1-availability-of-a-first-appeal accessed 29 April 2025.
[242] Sec 531(2)
sentence 1 No 1 GCCP.
[243] Sec 531(2)
sentence 1 No 2 GCCP.
[244] This results from a comparison
of Sec 513(1) GCCP and Sec 545(1) GCCP.
[246] Sec 580 No 7b
GCCP.
[250] Sec 580 No 4, 5
GCCP.
[251] Sec 156(2) No 3
GCCP.
[255] Rule 52.20(1)(c) ECPR.
[256] Rule 52.21(2)(a), (b)
ECPR.
[257] Ras
Al Khaimah Investment Authority v Azima (Court of Appeal, UK) [2021] EWCA
Civ 349.
[258] Rule 52.30(1) ECPR.
[260] Rule 1.1 ECPR, also see above
para 129.
[261] See C Wright, A Miller and R
Marcus, Federal Practice & Procedure (3rd edn,
Thomson West 2010) § 2006 (reviewing the limited opportunities for immediate appellate review of
discovery rulings).
[267] Usually subject to permission
to appeal, see Rule 52.6 ECPR.
[268] Rule 52.21 (1) ECPR.