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Nicolo Trocker, From ALI-UNIDROIT Principles to Common
European Rules on Access to Information and Evidence: A
Preliminary Outlook and Some Suggestions, 19 Unif. L.
Rev. 239 (2014)
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From ALI-UNIDROIT Principles to
common European rules on
access to information and
evidence? A preliminary outlook
and some suggestions
NicoI6 Trocker*
I. Introduction
When the American Law Institute (ALI) and the International Institute for the
Unification of Private Law (UNIDROIT) decided to undertake the exiting venture of
developing internationally acceptable principles and rules for the adjudication of
transnational civil disputes, among the major challenges the working group had
to face was admittedly the one presented by the profound differences between the
various legal systems in their approach to the issues of access to information and
evidence-differences that are most significant and troubling between the USA
and the rest of the world. The experts were well aware that:
no aspect of the extension of the American legal system beyond the territorial frontier
of the United States [had] given rise to so much friction as the application of U.S.
discovery rules to the taking of evidentiary material located in foreign countries for
investigation and litigation in the United States.'
Thus, one of the most difficult problems besetting the Principles and Rules of
Transnational Civil Procedure became:
how to strike a reasonable compromise between the broad American discovery with its
rigid and direct compulsory sanction and the more limited taking of evidence of
Continental procedure which prefers indirect means of compulsion in the form of
procedural disadvantages if a party refuses to cooperate. 2
Throughout the various phases that led to the final version of the Principles of
Transnational Civil Procedure (and Rules), the problems of obtaining evidence
Nicol6 Trocker, Fall Professor of Civil Procedure, University of Florence, School of Law, Via delle
Pandette 35, pal. D4 50127, Florence, Italy. Tel: +390552759251; Email: ntrocker@libero.it.
See Restatement (Third) of the Foreign Relations Law of the United States (1987) § 442, reporters
note 1.
2 R Stiirner, 'Transnational Civil Procedure: Discovery and Sanctions against Non-Compliance'
(2001) 4 Uniform Law Review 871.
@ The Author (2014). Published by Oxford University Press on behalf of UNIDROIT. All rights reserved.
For Permissions, please email journals.permissions@oup.com
Unif. L Rev., Vol. 19, 2014, 239-291
doi:10.1093/ulr/unuol6
Advance Access publication: 21 May 2014
240 Nicol6 Trocker
and, in particular, the questions concerning the scope of evidentiary obligations

were the object of lively discussions and thorough analysis.3 Technical changes
and linguistic adjustments accompanied a complex process of refinements and
revisions of proposed standards and measures. A continuing dialogue between
legal scholars and lawyers, together with the valuable comments from advisors
and consultants, were intended to make the final 'product' an acceptable frame-
work from both common law and civil law perspectives.4
Today we are invited to discuss a new stimulating initiative: the decision of the
European Law Institute (ELI) and UNIDROIT 'to cooperate in order to adapt the
2004 jointly adopted and published ALI/UNIDROIT Principles from a European
perspective and develop European Rules of Civil Procedure'. The proponents'
idea 'to take the 2004 Principles as a starting point' for the new endeavour raises a
basic preliminary question: have the efforts of the drafters of the PTCP 'to com-
bine the most attractive attributes of the various legal systems' and the related
objective 'to bridge the differences in civil litigation which are a frequent source of
conflict' provided us with a final scheme that is suitable to be used as a basis for
the elaboration of European rules of civil procedure? 6 Or have the concessions
that have had to be made in order to reach multilaterally acceptable standards
produced a framework that reflects an imbalanced approach in addressing the
different concerns and perspectives of the various legal systems-an instrument
that unilaterally favours a particular legal tradition or a specific system's practice?
In other words, as Jose Angelo Estrella Faria, the secretary-general of UNIDROIT,
reminded us this morning, the fundamental preliminary question concerns the
adaptability of the ALI-UNIDROIT PTCP to the (present) European environment.
The first part of this article reflects on this question, which needs to be carefully
considered with respect to the issues of access to information and evidence in the
context of civil litigation as it involves the structural aspect that is largely respon-
sible for the main differences between the legal systems. To this end, the article
will first address the provisions governing pleading requirements and the formu-
lation of claims. The basic options in this field-fact pleading versus notice
pleading-have an enormous impact on the potential scope of evidentiary obli-
gations. It will then proceed to a more detailed analysis of the main provisions in
the PTCP that deal with our specific topic. The objective is to investigate, on the
one hand, how their content as well as their language reflect or combine common
law and civil law traditions and, on the other hand, how their reference to the law
3 ALI-UNIDROIT, Principles of Transnational Civil Procedure (Cambridge University Press 2006)
[PTCP]. American Law Institute (ALI) and International Institute for the Unification of Private
Law (UNIDROIT), Principles and Rules of Transnational Civil Procedure (American Law Institute
2004), Proposed final draft, Introduction, paras. IX and X.
4 On the genesis and the elaboration of the PTCP (and Rules), see R Stirner, 'The Principles of
Transnational Civil Procedure: An Introduction to Their Basic Conceptions' (2005) 69 Rabels
Zeitschrift 202.
See the presentations by Diana Wallis (President of the European Law Institute) and Jos6 Angelo
Estrella-Faria (Secretary-General of UNIDROIT) at the 1st Exploratory Workshop, Vienna, 18-19
October 2013.
6 Proposed Final Draft PTCP (n 3) 15-16.
Unif. L. Rev., Vol. 19, 2014, 239-291

A preliminary outlook and some suggestions 241
of the forum witnesses the difficulties to translate national differences intimately

linked to a specific cultural context or established court practices into harmoniz-
ing propositions or a unified framework.
The proponents of the envisioned project quite rightly emphasize that in order
to adapt the PTCP from a European perspective, it is necessary to broaden the
view and consider, in addition to the input that comes from the Principles, other
important sources-in particular, the Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights or
ECHR) and the acquis of binding European Union law.
In fact, while differences, often substantial, continue to exist between domestic
systems of civil litigation in Europe, the law of civil procedure in general and the law
of evidence as one of its eminent fields, in some significant parts, have left their
national confines because Member States enjoy no absolute procedural autonomy.
As a foreign observer has rightly pointed out 'by having Article 6 of the European
Convention and by handling it as it does, Europe has effectively acquired the due
process clause of the Fifth and Fourteenth amendments to the Constitution of the
United States, both in scope and in severity of implementation'. 9 Article 6 of the
ECHR and its judicial elaboration by the judges of the European Court of Human
Rights (ECtHR) provide an important part of the general principles of European
procedure in matters of access to, and production of, evidence.
On its part, the European Court of Justice (ECJ), within the remarkable frame-
work of its creative jurisprudence concerning the right to an effective remedy'o-
today enshrined in Article 47 of the Charter of Fundamental Rights of the
European Union-has laid down basic conditions and requirements that have
to be met by national legislators in relation to the admissibility of certain forms of
evidence." So the Court has admonished the Member States that 'any require-
ment of proof which has the effect of making it virtually impossible or excessively
difficult to secure the protection of rights conferred on individuals is incompat-
ible with Community law'.12
In addition, there are the contributions of European Community (EC) legisla-
tion.13 From the loose bond of Article 220 of the Treaty Establishing the European
7 Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221
[ECHR].
See the contributions in D O'Keefe and A Bavasso (eds), JudicialReview in European Union Law
Liber Amicorum in Honour of Lord Slynn of Hadley (Kluwer 2000).
F Juenger, as cited in K D Kerameus, 'Political Integration and Procedural Convergence in the
European Union' (1997) 45 American Journal of ComparativeLaw 921. See also, F Juenger, 'Some
Comments on European Procedural Harmonization' (1997) 45 American Journal of Comparative
Law 932.
10 See N Trocker, 'Of Rights and Remedies: Lessons from the Case Law of the European
Court of
Justice and the European Court of Human Rights', in P Pogonowskiego and others (eds),
Wspdiczesne Przemiany PostrpowaniaCywilnego (Kluwer 2010) 215-37.
Charter of Fundamental Rights of the European Union [20101 OJ C83/389.
12 Case 199/87 Amministrazione dellefinanze dello Stato v San Giorgio [ 1983] ECR 3595, 3637, para 21
followed by a long line of cases.
13 On the European civil procedure, see the thoughtful overall picture by G Wagner, 'Harmonization
of Civil Procedure: Policy Perspectives' <http://ssrn.com/abstract=1777233> available 15 March
Rev. dr. unif., Vol. 19, 2014, 239-291

242 NicoI6 Trocker
Economic Community to the declared aim in Articles 61 and 65 of the

Amsterdam Treaty to establish and implement a European judicial area, civil
procedure has increasingly become part of the European integration efforts and
so has the law of evidence. 14 Just as it was thought necessary to ensure the free
movement of judgments to facilitate integration in Europe, so access to evidence
to promote the fair resolution of claims became a desirable objective. European
directives in subject matter areas such as consumer protection and the enforce-
ment of intellectual property rights have set out specific obligations on Member
States with regard to the gathering of information and evidence, determining
standards that go beyond traditional policies and provisions of domestic proced-
ural systems.
New forms of judicial cooperation between courts of the EU Member States by
means of direct communications (and under the abolition of the public policy
reservation) as provided in Council Regulation (EC) 1206/2001 on cooperation
between the courts of the Member States in the taking of evidence in civil or
commercial matters have introduced welcomed improvements for litigants
(Evidence Regulation).15 Judicial assistance by means of direct communications
has also received praise because of its potential effect 'apris une pe'riode d'adap-
tation [de produire] une harmonisation en donceur des pratiques judicaires en
matidre de mesures d'instructionpar imprignationmutuelle'. 6 Today, Article 81
of the Treaty on the Functioning of the European Union, as adopted by the Lisbon
Treaty (TFEU), indicates access to justice as a fundamental objective that (al-
though primarily in the cross-border context) points to the need for eliminating
obstacles to the good functioning of civil procedure and implies the creation of an
effective procedural law capable of covering more than just cross-border civil
litigation in all of its aspects.17
The second part of this contribution will rapidly sketch some of the
themes emerging from the European sources with a special eye on the lessons
offered by the Strasbourg case law, but it will also point to some missed object-
ives and unresolved issues in particular with regard to the Evidence Regulation.
An endeavour that aims to elaborate evidence rules for the new millennium
should also look beyond the mentioned themes and sources. The final part of
2014 also in X E Kramer and C H van Rhee (eds), Civil Litigation in a GlobalizingWorld (Springer
2012), 39-60.
14 B Hess, 'The Integrating Effect of European Civil Procedure Law' (2002) 4(1) European Journal of
Law Reform 3. Treaty Establishing the European Economic Community <http://europa.eu/leg
islationsummaries/institutionalaffairs/treaties/treaties eec en.htm> accessed 10 December
2012; Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing
the European Communities and Related Acts [1997] OJ C340.
15 Council Regulation (EC) 1206/2001 on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters [2001] OJ L174 [Evidence Regulation].
16 D Lebeau and ML Niboyet, 'Regards crois6s du processualiste et de l'internationaliste
sur le
rkglement CE du 28 mai 2001 relatif a l'obtention des preuves civiles Al'6tranger' [2003]
Gazette du Palais 221, at 222.
17 Treaty on the Functioning of the European Union, as adopted by the Treaty of Lisbon [2010] OJ
C83/49.
Unif. L. Rev., Vol. 19, 2014, 239-291

this article will briefly illustrate three recent developments that prospective
rule makers in charge of drafting European rules of civil procedure should care-
fully consider and evaluate.
The first and most visible is the evolution-one might even speak of 'revolu-
tion'-of modern computer technology and its impact on access to and produc-
tion of evidence.
When Marcel Storme's pioneering report on the Approximation of Judiciary
Law in the European Union was presented at the beginning of the 1990s, emphasis
was placed on the perspective of introducing'systimes d'enregistrementintigralet
direct de la preuve', via tape recorders and similar devices, because of their 'grand
supiriorit, as compared to the 'systimes traditionnelde rdception en course de
l'audience des e'iments verbaux dictis' and because of their beneficial support in
the proof-taking process 'comme auxiliairede la mimoire du juge; 'comme infor-
mation pour le tribunal de rang supirieur';'comme eliment de fidelitr des declara-
tions des timoins'; 'et comme e'iments accelerateur ientuel'.18 Today, it is the
complex issues concerning the use of electronically stored information for evi-
dentiary purposes that needs to be addressed and carefully regulated.
A second phenomenon that calls for attention is access to information and
evidence in the pre-litigationstage. The Principles consider the problem in the
context of litigation. Their focus is on evidence not on information. In many
cases, however, parties seeking to enforce their rights need to have access to
information prior to the commencement of proceedings in order to make a
well-informed decision as to whether, and eventually against whom, to bring a
suit or whether, and within which limits, to opt for settlement without litigation.
Trends in domestic legislation and specific European measures such as Council
Directive (EC) 2004/48 on the enforcement of intellectual property rights
(Enforcement Directive) offer stimulating material for thought in this field.1 9
Finally, prospective rule makers may find it appropriate to ask a general ques-
tion: should we compete with foreign models or learn from them? A recent phe-
nomenon stimulates this question. Europeans involved in actual or prospective
disputes at home are seeking assistance with increasing frequency of American
discovery in order to bypass restrictive disclosure policies and provisions of their
domestic procedural systems. It is a new form of 'information and evidence
shopping' made possible by the generous use of section 1782 of Title 28 of the
US Code. Are Europeans discovering American discovery?
18 M Storme (ed), Approximation of Judiciary Law in the European Union (Kluwer and Martinus
Nijhoff 1994) at section 6 (La technologie et la preuve-Technology and proof) of the Explanatory
Memorandum.
19 Council Directive (EC) 2004/48 on the enforcement of intellectual property rights [2004] OJ L157
[Enforcement Directive].
Rev. dr. unif., Vol. 19, 2014, 239-291

244 Nicol6 Trocker
II. The 'adaptability' issue and the 'un-American'

choices of the Principles
Focusing now on the question of the 'adaptability' of the Principles, it is worth
mentioning that one of the recurrent criticism of the initial drafts of the Principles
and Rules of Transnational Civil Procedure, developed by the pioneering effort of
Geoffrey Hazard and Michele Taruffo, came from the objection of their departure
from the civil law tradition, especially with regard to the suggested solutions for
the gathering of information and evidence. Some continental commentators
simply rejected the project as 'too Americanized'; others formulated more
nuanced reservations on specific parts of the proposed scheme, but one of the
aspects that most observers had in mind when expressing their doubts regarding
the feasibility of the stated goals was the expanded evidentiary obligations of
parties and non-parties in the context of civil litigation. In addition, in their
language and the use of a number of legal terms, the draft Principles looked
noticeably American. 20
At a meeting of French proceduralists at the turn of the new millenium, Loic
Cadiet in his overall picture of the draft Rules specific aspects in matters of party
disclosure in limine litis and discovery noted: '[I] est assez aise' de relever, dans les
dispositions du projet, nombre de propositions de nature d susciter, chez les juriste
frangais, une riserve amusde dans le meilleur des cas, une indignationhorrifidedans
le pire des cas'.21 Are there similar aspects in the Principles developed after
UNIDROIT joined the ALI in the project? Are there provisions on the topic of
'access to information and evidence' that provoke reactions of 'rdserves amusdes',
if not of 'indignation horrifide'?
The ALI-UNIDROIT Principles are generally presented as a regulatory scheme
that 'combines elements and features of the Anglo-American and the continental
procedural cultures'.2 2 The presentation does not say very much in terms of what
elements of the different cultures have found their way, and to what extent, into
the Principles' final scheme and what has been abandoned because it appeared to
be too American or too closely linked to continental European traditions to reach
a worldwide acceptable result. It is a closer look to the Principles' provisions
dealing with pleading requirements and standards for access to information
20 G Walter and S Baumgartner, 'Utility and Feasibility of Transnational Rules of Civil Procedure:
Some German and Swiss Reactions to the Hazard-Taruffo Project' (1998) 33 Texas International
Law Journal 463.
21 L Cadiet, 'Quelles preuves? Discovery, t~moins, experts, rhle respectif des parties et du juge' in
P Fouchard (ed), Vers un procs universel? Les rigles transnationales de procedure civile de
l'American Law Institute (Panth6on-Assas 2001) 116.
22 Draft PTCP (n 3) 14. Stitrner (n 4) 215-16. F Ferrand, a member of the ALI- UNIDROIT working
group and the author of the French version of the PTCP, with specific reference to our topic,
speaks of the PTCP's attempt to 'finalise a compromise between the American discovery and the
continental approach to disclosure'. F Ferrand, 'The Respective Role of the Judge and the Parties in
the Preparation of the Case in France' in N Trocker and V Varano (eds), The Reforms of Civil
Procedure in Comparative Perspective (Giappichelli 2005) 29. In similar terms C H van Rhee,
'Harmonisation of Civil Procedure: An Historical and Comparative Perspective', in Kramer
and van Rhee (n 13) 39.
Unif. L. Rev., Vol. 19, 2014, 239-291

and evidence that allows us to resolve without major doubts the 'adaptability'
issue. As a matter of fact, the solutions adopted by the drafters in these areas
contain very little, if anything, of the Anglo-American litigation culture-prob-
ably, one should say, of the American litigation culture-with its characteristic
features of notice pleading and the wide discovery procedures under the Federal
Rules of Civil Procedure. In their basic choices, the Principles reflect European
litigation cultures and legal traditions. Therefore, they are perfectly suitable of
being used-as the proponents of the ELI-UNIDROIT project suggest-as 'a start-
ing point' for the elaboration of European rules. This, obviously, does not mean,
as will be explained in some detail later on in this article, that developing common
'European' rules on access to information and evidence would be an easy task.
The law of evidence in Europe is still to a large extent intimately linked with a
given legal system and a specific cultural context: 'la discontinuiti des systimes
nationaux subsiste'.2 3 However, first some explanation has to be provided with
regard to the asserted 'European' nature of the Principles' approach to the issues
of access to, and collection of, evidence.
The key provision supporting our point is to be found in Principle 11.3, which
states that 'in the pleading phase, the parties must present in reasonable detail the
relevant facts, their contentions of law, and the relief requested, and describe with
sufficient specification the available evidence to be offered in support of their
allegations'.
In requiring the assertion of detailed facts and the presentation of individua-
lized items of evidence during the pleading phase, the Principles express a clear
preference for the practice of 'fact pleading' common to all civil procedure codes
of continental tradition as well as to modern English law. To mention just a few
examples, under German pleading rules (sections 130 and 253 of the German
Code of Civil Procedure), parties have to furnish the detailed factual basis of the
legal contentions that justify their claims or affirmative defences. In addition,
parties must identify specific means of evidence supporting their specific factual
allegations to the extent not admitted by the other party.2 4 Article 163 of the
Italian Code of Civil Procedure requires that the first pleading (citazione), in order
to be validly introduced, contain the definition of the subject matter of the claim,
the statement of facts and law sustaining the case, together with the relief sought,
the identification of evidence, and the produced documents.25 Similar rules apply
in England, where a party traditionally is expected not to embark on litigation
unless he or she has already a clear concept of his or her cause of action. Under the
new Civil Procedural Rules, a party has to assert sufficiently detailed facts in the
statement of the case capable of disclosing reasonable grounds for bringing a case.
Civil Procedure Rule 16.4 and Practice Direction 16, section 3-9, require that the
23 ML Niboyet, La globalisationdu procis civil internationaldans l'espacejudiciaire europden et mon-
dial (Clunet 2006) 943.
24 PL Murray and R StUrner, German Civil Justice (Carolina Academic Press 2004) 194.
25 D Dalfino, 'Ordinary Proceedings of First Instance' in M de Cristofaro and N Trocker (eds),
Civil
Justice in Italy (Jigakusha 2010) 72-3.
Rev. dr. unif., Vol. 19, 2014, 239-291

246 Nicol6 Trocker
particulars of the claim set out the ground of the claim-that is, the facts that
entitle the claimant to the remedy that he seeks from the defendant in a compre-
hensive way and with sufficient detail.2 6
By way of contrast, American civil procedure at the federal level does not
require the assertion of detailed facts and the presentation of individualized
means of evidence during the pleading phase. According to Federal Rule 8, the
action may be drawn up in very general terms. Notice pleading, which is common
practice in the USA, means that 'a plaintiff need only make a short plain statement
of claim rather than the statement of facts setting forth a cause of action'. The
basic difference in approach of the two styles of pleading rules is between a
statement of 'the facts' on which the claim is based and a short and plain state-
ment of the claim.2 7
In a famous House of Lords decision-BritishAirways Board v Laker Airways
Ltd ao (1984)-Lord Diplock pointed to this prominent feature of American
procedure not without critical tones:
[O]ne of the characteristics of the rules of civil procedure in the federal courts of the
United States (as well as in most state courts), which seems to any English lawyer
strange and, indeed, oppressive on defendants, is that a 'complaint', the document by
which an action is begun, while it alleges that the complainant has a cause of action
against the defendant or defendants, does not disclose, or discloses only in a most
exiguous form, the facts which the plaintiff will eventually rely on at the trial as giving
rise to that cause of action. Instead, the complaint is accompanied, or immediately
followed, by a request to the defendants for pre-trial discovery which bears little
28
resemblance to the kind of discovery that is available in English civil actions.
Recent US Supreme Court decisions on pleading suggest that in certain types of
cases the federal courts should engage in more vigorous scrutiny of complaints
before allowing the plaintiff to proceed to discovery. Bell Atlantic Corp v Twombly
(2007)29 and Ashcroft v Iqbal (2009)30 directed the courts to determine whether
the factual allegations of a complaint make the claim 'plausible'. However, apart
from the uncertainties that surround the 'plausibility' requirement, it is unlikely
that the new level of detail required in pleading will significantly alter the trad-
itional extensive discovery practice. 3 1 Liberal discovery remains a way of life of
26 A Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (Sweet and Maxwell 2006)
142, 238.
27 Rule 8 bypasses the difficulties experienced in the code-pleading rule. Rule 9(b) prescribes an
exception with regards to allegations of fraud or mistake; and stricter pleading requirements have
been imposed in some types of cases, notably by the Private Securities Litigation Reform Act. See
RL Marcus, 'Modes of Procedural Reform' (2008) 31 HastingsInternationaland Comparative Law
Review 157, 177.
28 British Airways Board v Laker Airways Ltd ao [ 1984] 3 WLR 413, 419.
29 Bell Atlantic Corp v Twombly 550 US 544 (2007). Twombly was an anti-trust case against four big
national telephone companies. The underlying substantive law issue was whether 'conscious par-
allelism' is a violation of the Sherman Act.
3o Ashcroft v Iqbal 129 SCt 1937 (2009). In Iqbal, the Court characterized Twombly as saying that a
claim is insufficient if it alleges a situation 'more likely explained' by the lawful conduct.
31 As it has been critically noted, the requirement allegations to be 'plausible' leaves much unclear.
What details will be held sufficiently 'plausible' to support a general conclusion? Plausibility means
Unif. L. Rev., Vol. 19, 2014, 239-291

American litigation culture bound up with the distinctive private enforcement

feature of certain civil disputes before US courts.32
Ill. The Principles' standards for access to information

and evidence
The kind of pleading rules a system adopts not only determines the kind of cases
the system wants courts to hear.33 Pleading rules also significantly influence the
process of gathering information and evidence.
If the requirements as to the content of complaints are considerably rigorous, as
is the case with the provisions of Principle 11.3 (and it is the court that plays a
significant role in the actual shaping of the case from the very inception of the
procedure), the process of evidence taking can be focused on the specific issues
that have been identified as potentially dispositive: 'The court and each party-
Principle 16 declares in its opening sentence-should have access to relevant
evidence'. And 'relevant' evidence is probative material that supports, contradicts,
or weakens a contention of fact at issue in the proceeding. 34
Under a fact-pleading system, mere speculation of a party that a witness or
documents may say something relevant to the litigation process is not enough to
trigger the use of state power. A court will not admit evidence merely because it
might lead to, or in the direction of, relevant information as it is in the United
States. Evidence will only be admitted if it affects the determination as to whether
an asserted fact is true or not. The requirement of substantiation-that is, the
requirement that the relief sought and the subject matter of the suit are specifically
spelled out-is designed to assure that evidence is actually taken only where the
party nominating the evidence can show that it is likely to yield information
useful to the court. And the court will order testimony or the production of
documents only where a party can describe the facts that the evidence is intended
35
to prove.
factual or evidentiary credibility? See GC Hazard, Jr, J Leubsdorf and DL Bassett, Civil Procedure
(6 th edn, Foundation Press 2011) 172, 180-4.
32 S Subrin, 'Discovery in Global Perspective: Are We Nuts' (2002) 52 De PaulLaw Review 299; R Marcus,
'Putting American Procedural Exceptionalism into a Globalized Context' (2005) 53 AmericanJournalof
ComparativeLaw 739: 'American exceptionalism is likely to remain an obstacle to a ius commune for
procedure along the Unidroit/ALI lines'.
3 'The pleading rule requiring specific allegations of fact reduces the potential scope of discovery,
because it provides for tightly framed claims and defences from the very beginning of the pro-
ceeding. Moreover, that rule of pleading contemplates that a party having pleaded specific facts
will... be required to reveal specifically the proof on which it intends to rely concerning these
allegations, including documents and witnesses and expert witnesses. These requirements presup-
pose that a party properly may commence litigation only if the claimant has a provable case, and
not merely the hope or expectation of uncovering such a case through discovery from the opposing
party'. LJ Priestley, 'Transnational Civil Procedure: Fact Pleading v. Notice Pleading: Its
Significance in the Development of Evidence' (2001) 4 Uniform Law Review 841, 850.
34 See the comment to PTCP (n 3) principle 16, para 1.
3s DJ Gerber, 'Comparing Procedural Systems: Toward an Analytical Framework' in J Nafziger (ed),
Law and Justice in a Multistate World: Essays in Honor of Arthur T. von Mehren (Transnational
Rev. dr. unif., Vol. 19, 2014, 239-291

248 Nicol6 Trocker
When a notice-pleadingrule applies, as it is the case in the USA, much work has
to be done by the parties and their lawyers after the filing of the claim in order to
determine whether or not there are facts sufficient to support the claim. Since
American lawyers are not expected to have particularly comprehensive command
on the relevant facts at the time they file suit, the investigation and uncovering of
facts and information potentially relevant to the adjudication of the case takes
place between the completion of the pleadings-that is, the submission of com-
plaint and answer or counterclaim-and the beginning of trial. This is the period
of pre-trial discovery. During this stage, lawyers dispose of powerful tools of dis-
covery to require the opposing party and third parties to provide potentially
relevant information about the facts of the case in the form of documents and
things, interrogatory answers, and deposition testimony. 36 The standard of rele-
vance required under the Federal Rules provisions for discovery is much broader
and more flexible than the one that applies to evidence. Only if the material
sought bears no conceivable relationship to the subject matter of the litigation
does the concept of relevancy limit the scope of the discovery process.
IV. Automatic exchange of evidentiary material or

court orders? The Principles' 'continental' approach
While the pleading requirements in Principle 11.3 reflect a common 'European'
trend-and the same can be said with regard to the relevance standard of the
evidence to be admitted in court-significant differences begin to emerge when
we come to consider the procedure pursuant to which evidence may be gathered
for presentation at the proceeding. Different techniques are available in this area.
Some are carried out between the parties without an immediate court order; some
are enforced by court order in the event of a dispute between the parties; and some
are available only by court order.
At first sight, the statement in Principle 16, paragraph 1, that 'each party should
have access to relevant and non privileged evidence' could be read as the drafters'
intention to give way to a system where parties simply start requesting each other
to disclose all relevant evidence that is in their possession or control and where the
law requires the parties to comply with reasonable requests automatically or be
sanctioned later. In other words, it seems to be the drafters' intention to give way
Publishers 2002) 665; M Taruffo, 'Rethinking the Standard of Proof' (2003) 51 American Journalof
ComparativeLaw 675.
36 The paradigm provision is Rule 26(b)(1) of the Federal Rules of Civil Procedure which reads:
'Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's
claim or defence-including the existence, description, nature, custody, condition, and location of
any documents or other tangible things and the identity and location of persons who know of any
discoverable matter. For good cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence'.
Unif. L. Rev., Vol. 19, 2014, 239-291

to a mechanism of automatic disclosure, as practised under English law, where,

independently of any consideration with regard to the burden of proof, pursuant
to Civil Procedure Rule (CPR) 31.6 a party is required to disclose (i) the docu-
ments on which she relies; and (ii) the documents that (a) adversely affect her own
case; (b) adversely affect another party's case, or (c) support another party's case;
and to allow inspection of these documents by the other side (CPR 31.10).
Upon closer look, however, it becomes clear that the ALI/UNIDROIT Principles
do not propose a system that bypasses immediate court involvement. The pro-
vision in paragraph 2 of Principle 16 explicitly states that it is for the court 'upon
timely request of a party' to 'order disclosure of relevantand reasonablyidentified
evidence in the possession or control of another party or, if necessary and on just
terms, of a non party'. Parties are free to exchange documents voluntarily and the
same applies for the production by third parties. Litigants and third parties come
under a duty of disclosure only if, and to the extent that, the court in charge of the
management of the case has made an order directing disclosure. The assumption
of the proposed solution is that under a strict fact-pleading rule, such as the one
adopted by the Principles, it is for the court to efficiently determine whether or
not the factual and evidentiary relevancy of an item falls within the reasonable
limitations that are set by the scope of disclosure and evidence taking. 38
The relevance standard-as already mentioned-relates back to the pleading,
for it is there that the claims and defences are set forth and relevance is to be
determined by reference to the facts in issue that should have been specified in the
pleadings or during the preparatory stage of the proceedings. The 'reasonable
identification' requirement is aimed at preventing 'exploratory' moves in the
hope of finding something useful as the decisive 'smoking gun'. In short, the
Principles' basic policy reflects the attitude of the major continental European
procedural systems, where specification and individualization of facts and means
of evidence, combined with immediate court involvement, are pre-conditions for
commencing fact-finding procedures. 39 The Principles suggest some flexibility in
Principle 11.3, paragraph 2, where it is stated that, 'when a party shows good cause
for inability to provide reasonable details of relevant facts or sufficient specifica-
tion of evidence, the court should give due regard to the possibility that necessary
facts and evidence will develop later in the course of the proceeding' [emphasis
added].
Not really a sign of convergence with American discovery practice (and litiga-
tion culture) as it has been most prominently defined in the US Supreme Court's
37 N Andrews, The Modern Civil Process (Mohr 2008) 109. It might be worth noting that common
law tradition greatly influenced the draft rules on discovery of documents in the Storme project.
See the detailed provisions in Articles 4 and 5 and the illustrations in the explanatory memoran-
dum. Storme (n 18).
3 R StUrner, 'The ALI/Unidroit Principles of Transnational Civil Procedure and Their Influence on
Future Private Enforcement of European Competition Law' in J Walker and OG Chase (eds),
Common Law Civil Law and the Future of Categories(Lexis Nexis 2010) 431.
3 StUrner (n 4) 234. See, for example, section 138 of the French Code de proc6dure civile and
sections 142 and 421 of the German Zivilprozessordnung (ZPO).
Rev. dr. unif., Vol. 19, 2014, 239-291

250 Nicold Trocker
landmark decision in Hickman v Taylor (1947): 'Mutual knowledge of all relevant

facts gathered by both parties is essential to proper litigation. To that end, either
party may compel the other to disgorge whatever facts she has in her posses-
sion'. 40 One may add that the different attitude towards the exchange of infor-
mation and open access to evidence in connection with the resolution of civil
disputes is not so irrational when seen in the context of specific types of American
disputes and the role civil litigation plays in the governmental and societal struc-
ture of the USA. 41
V. The departure from the 'nemo tenetur' rule: an

emerging trend of European civil procedure
Principle 16, paragraph 2, in its final proposition specifies that 'it is not a basis of
objection to disclosure [in the form provided for in the Principles] that the evi-
dence may be adverse to the party or person making the disclosure'. This language
is clear: it is a statement that indicates departure from the traditional nemo tenetur
rule and reflects a modern-though still cautious-trend in (continental) civil
procedure.
The European codes of civil procedure of the nineteenth century strictly
adhered to the principle nemo tenetur edere contra se-that is, the principle that
no party has to help her opponent in his or her inquiry into the facts. The liti-
gation process maintained the primitive nature of a legalized fight where each
litigant strove to defeat his or her opponent, leaving no room for cooperation
between the parties. This concept had (and to a significant extent still has) a
strong impact on the parties' access to documentary evidence. Public policy rea-
sons, such as the interest of justice or disposing fairly of the process, could only be
applied, according to the traditional construction, to order the production of
documents in the possession of third parties on the same theoretical basis on
which a general duty of testimony was disposed. A procedural obligation of the
parties to the dispute to produce a document could exist as far as it was the
projection of substantive property rights of the opponent in the document or
the projection of some other substantive right to disclosure.
More recently, however, the idea has gained ground, gradually and not without
difficulty, that if the proceeding is to get as close as possible to the truth concern-
ing the litigated issues, it must rely on techniques through which each party can
have access to relevant items of evidence not in its possession. In France, Article 10
of the Code civil, as amended in 1972, introduces a general duty of procedural
discovery, by providing that 'each party must bring her contribution to the ad-
ministration of justice in view of the ascertainment of truth' and that the party
who breaches this duty once she has been formally requested to comply with it,
without any justification, can be subject to the imposition of an astreinte,without
40 Hickman v Taylor 329 US 495
(1947).
41 R Marcus, 'Exceptionalism and Convergence: Form versus Content and
Categorical Views of
Procedure' (2010) 49 Supreme Court Review 521.
Unif. L. Rev., Vol. 19, 2014, 239-291

prejudice of damages. Article 11 of the 'dispositions liminaires'of the new Code of

Civil Procedure reaffirms the obligation of the parties to contribute in the taking
of the evidence and specifies that, as far as the disclosure of documents is
concerned, this obligation is qualified by the power of the judge to impose the
payment of an astreinte.o
The French lead has been followed to some extent by the German
Zivilprozessnovelle of 2002, which provides for the power of the judge to order
parties or third parties to disclose documents in their possession on the simple
basis that they may be useful to the ascertainment of the facts of the case.
Commentators do not hesitate to define the new wording of sections 142 and
144 of the ZPO as a meaningful innovation of the recent reform. An important
step towards a procedural Aufldarungspflicht beyond and independently of obli-
gations to disclose rooted in the substantive law.43
Also, the Dutch Procedural Law Reform Act of 2002 has significantly revised the
Code's traditional approach to document disclosure long limited by the nemo
tenetur. The newly introduced Article 22, which is part of the Code's 'guiding
principles', specifies that 'the judge may, in all situations, during any stage of the
proceedings, order both or one of the parties to hand over specified and case-
related documents. If the refusal to comply with these orders is not justified, the
judge may draw the conclusion he deems fit'.4
The Spanish Ley de Enjuiciamiento Civil seems to have started a trend towards
automatic disclosure using language that implies that each party, without resort-
ing to the judge, can ask from the opponent, pending the case, the disclosure of
documents in her possession. The solution is interesting and somehow original,
though it may raise doubts about its effectiveness since the disclosure procedure
seems not to be supported by any adequate sanction for the case of non-
compliance.4 5
Courts on the Continent are anxious to stress that a request for the disclosure of
documents should sufficiently clarify what specific documents are to be disclosed
and that a party cannot request the judge to order the disclosure of a document if
42 Ferrand (n 22) 27; F Ferrand, 'Preuve, debats et principe de loyaute dans le procks civil franqais'
(2012) 17 Zeitschrift fuir Zivilprozeg International 13, 27.
43 For an insightful analysis, see G Wagner, Urkundeneditiondurch Prozessparteien-Auskunftspflicht
und Weigerungsrechte (Juristenzeitung 2007) 706ff; G Wagner, 'Urkundenedition durch Dritte.
Deutsches Recht und amerikanische Discovery' in R Stirner and others (eds), FestschriftfarDieter
Leipold (Mohr-Siebeck 2009) 801.
RR Verkerk, Fact-findingin Civil Litigation: A ComparativePerspective (Intersentia 2010) 203.
45 C Esplugues-Mota and S Barona-Vilar, Civil Justice in Spain (Jigakusha 2009) 150. The authors
explain that the requesting party has to provide accurate indications as to the nature and content
of the requested document (art 328, para 2); and that the court in case of non-disclosure may give
evidentiary value to 'the version of the contents of the document provided by the party requesting
it' (art 329). As to third party documents, the law is silent on the effects of non-compliance (art
330). For the authors, the court might be able to issue a search warrant to look for the documents
at third party's domicile. The new Swiss Code of Civil Procedure in art 160-headed
'Mitwirkungspflicht' (duty to cooperate in the taking of evidence)-provides that parties and
non-parties have an obligation to provide evidence in their control. Parties refusing to live up to
that obligation face adverse inferences on the merits (art 164). Non-parties who refuse to cooper-
ate risk a fine as well as being held liable for the extra costs arising from their behaviour (art 167).
Rev. dr. unif., Vol. 19, 2014, 239-291

252 Nicol6 Trocker
one merely suspects that a document could possibly exist. The requirement that
documents be 'sufficiently identified'-a requirement explicitly mentioned also
in the Principle 16.2-is aimed at preventing so-called 'fishing expeditions',
which are alien not only to civil lawyers but also to lawyers brought up in the
English legal system.46 In this respect, the modern English disclosure procedure
cannot be considered too far from the mentality of civil lawyers, given the similar
structure of pleadings as fact-pleadings, the scope of discovery, and the role of the
court, which has discretion in determining the range of disclosure and may limit it
to what it considers reasonable proportions (depending on factors such as the
number of documents involved, the nature of the proceedings, and the likelihood
of the documents to contribute to the determination of issues).
Differences remain with regard to the cultural environment. Many continental
countries still have difficulties in overcoming their nemo tenetur idiosyncrasies. 7
And important differences remain at the 'institutional' level. In England, as al-
ready mentioned, the main way of obtaining evidence is the duty of disclosure
imposed on the parties to an action. Access to documentary evidence held by the
other party is required in principle without any court order. In most civil law
jurisdictions, it is the court that decides what evidence is required from the
parties, and courts tend to use their power in a restrictive way, particularly
when it comes to the exhibition of documents. The only documents the parties
are obliged to exchange without a court order are those referred to in the briefs
(sections 130 and 131 of the ZPO and Article 132ff of the French Code de
proc6dure civile). Differences also exist with regard to sanctions, as civil law
jurisdictions, albeit with some exceptions (as is the case of France), are hesitant
to make disclosure orders effectively enforceable.4 8
In general terms, as has been pointed out quite correctly, English law provides
more comprehensive facilities of access to evidence than its continental counter-
parts. Unlike some of the continental systems that are prepared to allow for a
judicial finding to stand, notwithstanding that it is at variance with the real facts,
provided that it was reached by procedurally correct means, English law is reluc-
tant to accommodate judicial findings of fact that are known to be founded on
incomplete evidence.4 9 Should prospective rule makers suggest this pattern as the
preferable 'European' solution?
46 As a matter of principle, Zuckerman explains, English law has always set its face against so-called
'fishing expeditions'. However, he also recognizes that in certain situations allowing a person to
embark on what might otherwise be regarded as a fishing expedition is dictated by considerations
of justice. Zuckerman (n 26) 570.
4 Very telling in this respect is the way in which the courts in some European countries have shown
to understand and apply the obligations to produce evidence under the provision of Article 6(1) of
the Enforcement Directive (n 19). See the indications provided by the Commission report (n 151).
Another example is the attitude of Italy's courts, which often refuse to grant an order to produce
documents under art 210 of the Code of Civil Procedure, arguing that it has an exploratory
('fishing') nature. See, eg, Court of Cassation (8 September 2003) n 11372.
48 See the text of section X of this article and the accompanying notes.
49 Zuckerman (n 26) 127-8. In similar terms, see the thoughtful remarks by JA Jolowicz, 'Discovery
of Documents in the Common Law and the Forced Production of Documents in Civil Law
Systems', in Essays in Honour of Kostantinos D. Kerarneus (Bruylant 2009) 535, at 547-8.
Unif. L. Rev., Vol. 19, 2014, 239-291

VI. Identification of the items of proof: 'testimony of

parties' or 'declarations des parties'? Not only a
language problem
Each party should have access to relevant evidence-Principle 16, para 1,specifies-
including testimony of parties.
In defining the scope of its commitment for access to relevant evidence, the
mentioned Principle uses language that has been the source of misunderstandings
and criticism. Critical reactions came up when an earlier draft of the
Transnational Rules of Civil Procedure, using the same expression, was discussed
by French judges, lawyers, and scholars. Pointing to provisions in the draft, 'sus-
ceptibles de provoquer une rdaction ne'gative des juriste Franpais' Loic Cadiet men-
tioned, among others, the 'rigle de l'article 22 admettant que la partie peut etre
entendue comme te'moin dans sa propre cause'.so For Catherine Kessedjan, there
was almost reason to be 'choqud qu'une partiepuisse te'moigner pour elle-mime'.
'Notre systime proce'dural, she strongly emphasized, 'l'interdit soit parce que ce
mode de preuve est inutile'.
In fact, while throughout the common law world, the rule that parties are not
competent to testify as witnesses has been changed (by statutes) since the middle
of the nineteenth century, a number of civil law jurisdictions still hold to the idea
that a party cannot be a 'witness' (in its own case). Italy's Constitutional Court has
repeatedly stated that the two concepts 'party' and 'witness' are mutually exclu-
sive. 52 The functional view is that party testimony is notoriously self-serving and
therefore useless as a means of proof.53
Modern Codes of Civil Procedure do, however, provide for judicial examin-
ation of the parties so that they may clarify their contention of, and assist the court
in finding, the truth. In France, the comparutionpersonnelle-once designed to
obtain an admission or confession-serves the broad purpose of enlightening the
court about any aspect of the case, and in this function it has become also a means
of obtaining evidence.5 4 Article 198 of the Code of Civil Procedure provides that
the judge may draw any conclusions ('tirertoute consdquence de droit') from the
parties statements, from their non-appearance in court, or from their refusal to
answer the questions. And it should be noted that the court's record of the ab-
sence or refusal can stand as a 'commencement de preuve par e'crit' (beginning of
written proof). It is an effect of 'importance pratique conside'rable' as it can be
so Cadiet (n 21) 116.

s1 C Kessedjian, 'Quelques r6flexions en matibre de preuves' in Fouchard (n 21) 112.
52 Corte costituzionale (22 July 1974) n 248; Corte costituzionale (24 February 1995) n 62;
Corte
costituzionale (4 May 2009) n 143.
5 For a comparative and historical perspective, E-M Bajons, 'Rock- und ausblickende
Schlussbemerkung' in H Nagel and E-M Bajons (eds) Beweis - Preuve - Evidence: Grundzage
des zivilprozessualen Beweisrechts in Europa (Nomos 2003) 843-5.
54 L Cadiet and E Jeuland, Droitjudiciaireprivd ( 7 h edn, Lexis Nexis 2011) 451.
Rev. dr. unif., Vol. 19, 2014, 239-291

254 Nicol6 Trocker
supplemented by witnesses even in cases where, normally, evidence by witnesses

would not be admissible.
In Italy, at any time and instance of the proceedings, the judge may order the
parties' personal appearance before him to interrogate them on the facts of the
action, giving them the possibility to confront. Although the primary function of
the informal examination is to shed light on relevant aspects of the litigation
pursuant to Article 116, paragraph 2, of the Code of Civil Procedure, the judge
may infer circumstantial evidence (argomenti di prova) from answers given and
from the behaviour of the parties during the examination. Italian courts tend to
emphasize that answers given by the parties and their behaviour-may be con-
sidered only 'as subsidiary factor ... to corroborate evidence already acquired in
the proceeding'.5 6 The decisions indicate a distrust of the parties informal exam-
ination, which is further evidenced by its relatively infrequent use by the courts.
This seems not to be the case of similar institutions as the Parteivernehmungof
Austrian and German law, although the interest of the immediate parties to the
lawsuit disqualifies them from being called as ordinary witnesses (Zeugen) and
'party depositions made by parties continue to be only a subsidiary means of
evidence'. 57 Even in Dutch law (and practice)-where since 1988 a liberal atti-
tude has been adopted on these issues-views with considerable reservation the
grounding of the judicial fact determination on the content of a party's depos-
ition. It is still believed that it would go too far to accept disputed facts that are
proven solely on the basis of a party's witness statement. 8
The provision of the ALI/UNIDROIT's Principle 16.1 in its English version might
be considered as indicating a trend that deserves to be further encouraged: the
evolution of party examination into an instrument of obtaining party testimony
in the true sense of this term. Currently, the French version of Principle 16.2 with
its reference to 'declarations des parties' seems to be better suited to mirror the
present attitude of most continental jurisdictions in matters of 'party testimony'.
When through the process of translation texts in one language are transformed
into texts in another language, the result is not always a text with the same
meaning. Legal translation is bound to use concepts and terms-the formalized
instrument of communication-the systemic meanings of which derive from
changing cultural and social context. 59 Language is not neutral. It is the vehicle
of concepts inherent in a specific culture. This generates a certain degree of
5s Ibid 452.
56 C Besso, 'Taking of Evidence' in de Cristofaro and Trocker (n 25)
95, 112.
s7 Murray and Starner (n 24) 291.
58 R Verkerk, 'Party Interrogation as Evidence: The Netherlands'
in CH van Rhee (ed), European
Traditionsin Civil Procedure (Intersentia 2005) 247, 250-1. On the premise that there may be, and
often are, facts crucial to the determination of a lawsuit that lie only within the knowledge of one
or the other of the parties, case law of the European Court of Human Rights (ECtHR) made it
doubtful whether the restrictions on party testimony imposed by national legislators are compat-
ible with a fair procedure as required by art 6 of the ECHR. See the decision cited in (n 87) of this
article.
5 E Rotman, 'The Inherent Problems of Legal Translation: Theoretical Aspects' (1996) 6 Indiana
International and Comparative Law Review 187.
Unif. L. Rev., Vol. 19, 2014, 239-291

ambiguity when the legal cultures and systems are markedly different from each
other, and it creates obvious difficulties when attempting to formulate a uniform
body of rules with supranational application.
VII. Expert testimony or 'rapport des experts'? The

Principles' 'European' solution
Similar ambiguities might derive from language used in Principles 16.2 and 16.4
as the references to 'expert testimony' could be intended as a clue in favour of the
adoption of the traditional common law model, according to which experts are
considered a 'witness' and treated as such, while civil law lawyers might object to
such denomination because experts do not 'witness' any fact but, instead, assist
the court in understanding complex issues.6 o In civil law countries (which are
relatively uniform on this point), the expert has basically the status of an officer of
the court. The court decides whether it will seek an expert's advice, and then the
court, upon request of the parties or on its own motion, chooses and appoints the
expert and determines the factual (or legal) issues the expert needs to address.
Great emphasis is placed on the neutrality, impartiality, and objectivity of the
court-appointed expert as a prerequisite of achieving an impartial and truthful
reconstruction of the facts of the case. In most civil law countries, the expert,
instead of being examined orally, will be asked by the court to render a written
report. Civil lawyers, therefore, are certainly more confortable with the French
version of the Principles and their reference in Principle 16.2 and 16.4 to the
'rapport des experts'.
Apart from the expressions used in the English version of the mentioned pro-
visions, the Principles' institutional choice is in favour of the traditional civil law
model of expert evidence. Principal 22.4 states: 'The court may appoint an expert
to give evidence on any relevant issue for which expert evidence is appropriate'.
The only limit to the discretion of the court is that 'if the parties agree upon an
expert, the court ordinarily (i.e., not necessarily) should appoint that expert'.
60 As is well known, whenever the resolution of an issue arising in a lawsuit calls for expert know-
ledge-a recurrent phenomenon in modern day litigation-the legal systems of the common law
orbit traditionally tend to rely on expert witnesses that are chosen, paid, prepared, and examined
(and cross-examined) by the parties. Then the 'battle of partisan experts' is the most common
device to present expert evidence. The court may have the power to appoint expert witnesses 'of its
own selection' as is the case under Rule 706 of the US Federal Rules of Evidence. But even in
jurisdictions that have enacted rules or statutes similar to Federal Rule 706, the court's power to
appoint an expert witness is infrequently used, since in the tradition of an adversary procedure
(and of an adversary competition) it is up to the parties to provide the court with 'their own'
answers to the scientific or technical question that has to be decided. The basic assumption is that
from the clash of two or more partial experts, a reliable scientific advice about the facts should
emerge. M Taruffo, 'Admission and Presentation of Evidence' in M Andenas, N Andrews and R
Nazzini (eds), The Future of TransnationalCivil Litigation (British Institute of International and
Comparative Law 2004) 169.
Rev. dr. unif., Vol. 19, 2014, 239-291

256 Nicol6 Trocker
Whether appointed by the court or a party, Principle 22.4.3 adds, an expert owes a
duty to the court 'to present a full and objective assessment of the issue ad-
dressed'-a clear statement of the idea of a neutral expert who follows the stand-
ards of objectivity and is supposed to provide the court with a 'scientifically'
reliable answer to the question and issues that the court has to decide.
The idea of the expert as 'helper' or assistant of the court has recently gained
ground also in England where the new CPR 1998-in clear contrast to the US
provisions as well as to the older common law regime-adopted a system of a
'single joint expert', which is strikingly similar to the civil law tradition." Experts
in civil proceedings are no longer treated as partisan witnesses. They owe a duty to
the court 'to help the court on the matters within their expertise' (CPR 35.3 (1)).
This duty to 'help the court' overrides any obligation owed by the expert to the
'instructing parties' in the case of a 'single, joint expert' or any obligation owed by
the expert to the person by whom he is paid.62
VIII. The issue of witness examination: an area left to

domestic procedure.
Eliciting testimony of witnesses-Principle 16.4 says in its opening sentence-should
proceed as customary in the forum.
Prospective rule makers will have to deal with a highly complex and fragmented
scenario. Not only are the traditions of common law and civil law systems very
different in this area, but even civil law systems do not provide uniform methods
for the examination of witnesses, and, more importantly, the different methods
are tightly connected with the traditions and with the professional habits and
practices of the system with which they are accustomed.6 3 As to the first aspect, it
is well known that common law systems are based upon the method of cross-
examination-sometimes celebrated 'as the best legal engine ever invented for the
search of the truth' 64-made by the lawyers of the parties (with a limited role of
the court the function of which is just to ensure the fairness of the examination),
while civil law systems traditionally are based on the method of an examination
performed by the court, essentially on the basis of a set of statements of facts
previously drafted by the parties. 6 5 This method of examining witnesses has been
defended on the ground that impartial questioning by the judge will avoid
61 M Damaska, 'The Common Law/Civil Law Divide: Residual Truth of a Misleading Distinction' in
Walker and Chase (n 38) 12.
62 Andrews (n 37) 13. Lord Wolf lamented that 'experts sometimes take on the role of partisan
advocates instead of neutral fact finders or opinion givers'.
63 E Jeuland, 'Le changement de r6le des temoins et des conseils dans quelques pays de droit civil et,
en particulier, en France' in Walker and Chase (n 38) 193-204; Bajons (n 53) 841.
64 See, eg, the decision of the U.S. Supreme Court in United States v. Salerno, 505 U.S. 317 (1992),
referring to the well-known assertion of Wigmore.
6 In some countries, such as Italy, Spain, and France, cross-examination has been introduced in
criminal procedure. In civil cases, cross-examination may be 'provided' in response to a letter of
request in the context of international judicial assistance. See French Code of Civil Procedure
art 739.
Unif. L. Rev., Vol. 19, 2014, 239-291

questions that could confuse or torment witnesses. On the other hand, the parties
and their lawyers, having a better grasp of the facts than the judge and stimulated
by personal interest, are ordinarily better able to pose incisive questions and
obtain meaningful testimony.
As to the differences among civil law systems, some prefer oral depositions by
the person to be examined before the competent judge (to whom the case man-
agement is entrusted), as is the case of Germany due to its strong commitment to
the principle of orality.66 The new Spanish Ley de Enjuciamento Civil provides for
direct initial questioning by the parties and additional questioning by the court
(Articles 368, 370, and 372).67 In other civil law systems, written statements are
predominant. The French Code de proc6dure civile has formalized the use of
written sworn statements as proof of fact, called attestations (Article 200-3).
It considers such te'moignages e'crits' as the equivalent of oral testimony and
deems them admissible whenever oral testimony is admissible. If necessary (be-
cause of concerns of reliability), the judge may request that a person providing a
written statement appear in person and render the testimony orally in court.68 In
Italy, under the new Article 257bis of the Code of Civil Procedure, the court may
order that a witness makes her statements in writing, upon agreement by the
parties and considering the nature of the case and any other circumstance. 69 Even
in England, the characteristic use of live testimony can be dramatically reduced.
Much more easily than in the past, evidence can be presented in the court in the
form of documents that contain earlier statements of witnesses. 70
Whether the testimony of witnesses will be received orally or in writing, parties
should be afforded the opportunity to conduct supplemental questioning by
directly addressing witnesses. The importance of this procedural guarantee-a
natural element of Anglo-American cross-examination practice-is strongly
emphasized in the second part of Principle 16.4. Some legal systems are still
reluctant to fully recognize it. Italy's Article 253, for example, establishes that
parties are not allowed to ask questions to the witness directly. According to
France's Article 214, it is within the discretion of the judge to put additional
questions on the parties' motion after having finished its (initial) questioning
of the witness ('Le juge pose, s'il estime ndcessaire, les questions que les parties lui
soumettent apris l'interrogationdu temoin').
66 See, however, German ZPO s 377, para 3, as amended in 1990.

67 F Gascon Inchausti, 'Where Is the Dividing Line? The Case of Spanish Civil Procedure' as cited in
Walker and Chase (n 38).
68 Jeuland (n 63) 196.
69 The device presents strong similarities to the German schriftlicheBeantwortungto the Beweisfragen
under ZPO s 377, para 3. Besso (n 56) 111.
70 Damaska (n 61) 14; Andrews (n 37) 34.
71 Jeuland (n 63) 198.
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258 Nicol6 Trocker
IX. The principle of free evaluation of evidence:

differences and discrepancies among national
procedural systems
Principle 16.6 states that '[t]he court should make free evaluation of the evidence
and attach no unjustified significance to evidence according to its type or source'.
The convinced adoption of the principle of free evaluation of evidence reflects a
trend in modern procedural law, but in some legal systems there are still signifi-
cant limitations and exceptions. In Romano-canonical procedure, rules govern-
ing the admissibility of evidence were rigidly delineated, and the weight attributed
to items of proof was mechanically and inflexibly regulated. In common law
countries, jury systems led to the formulation of many exclusionary rules in
order to prevent jurors from considering relevant evidence that was deemed
unworthy of faith. Common law countries that have abandoned the jury trial
in civil cases have also abandoned exclusionary rules of evidence. England is a
perfect example. It abolished the hearsay rule in 1995 'because it was perceived to
be anachronistic'.
Civilians have been largely eliminating the old system of 'legal proof' and its
complex mechanical rules precisely determining the kind and quality of evidence
necessary to prove an event. Modern Codes of Civil Procedure are explicit on this
point. In performing its function of resolving factual issues, the court should not
be constrained by rules or rankings of proof but, rather, evaluate evidence ac-
cording to its sound judgment and common sense. Section 286 of the German
ZPO, for example, prescribes:
The court is to decide upon consideration of the entire content of the arguments and
the results of reception of evidence according to its free conviction whether a factual
assertion is to be regarded as true or untrue. The reasons which led to the court's
conviction are to be stated in the judgement.
Also, in Italy the general rule is that all evidence gathered in the proceeding can be
freely evaluated by the judge (Article 116, paragraph 1, of the Code of Civil
Procedure). However, while in other leading European countries, the exceptions
of the mentioned principle are rare and relatively unimportant, in Italy they are
still significant, particularly in the area of testimonial evidence where the country
has not completely abandoned the traditions of the 'testis inhabilis'. The most
important example is Article 246 of the Code of Civil Procedure, which provides
that third persons who have an interest in the subject matter of the action, which
would permit their participation as parties, are incompetent witnesses. 72 Italy,
like France, has also retrained the archaic device of the decisory oath, which has
been long abandoned by various European countries where it was substituted by a
modernized form of party examination. The characteristics of the device are well
defined in Article 1357, paragraph 1 of the French Code civil: 'Le serment
72 Challenges of non-conformity with the fundamental guarantee of the right of access to evidence
have been rejected by the Constitutional Court. See the judgments cited in note 52 of this article.
Unif. L. Rev., Vol. 19, 2014, 239-291

judiciaire... qu'une partie defere a l'autrepour en faire de'pendre le jugement de la

cause... est appele'dicisoire'. If the party duly takes the oath, it is treated as con-
clusive proof of the disputed fact. There is no issue of credibility for the court to
determine, and judgment will be entered accordingly. A decisory oath duly sworn
is conclusive evidence, incontrovertible by any means.7
The comment to ALI/UNIDROIT Principle 16.6 specifies that 'the Principle
does not interfere with national laws that require a specified formality in a trans-
action, such as written documentation of a contract involving real property'. The
drafters seem to refer to the practice of some countries to require public acts for
certain transactions and treat those acts as conclusive evidence. The scenario is
more complex and presents additional aspects. Marked differences in attitude
exist among the various European systems, and some countries, much more
extensively than others, provide that certain facts can only be proven in court
with a specific type of evidence, particularly only by written evidence. Well-
known examples are Italy's Article 2721-26 of the Civil Code and France's
Articles 1341-48 of the Code civil, which exclude reliance on testimonial evidence
to prove contracts involving matters above a certain amount or exclude the use of
testimony to prove agreements supplementing or contradicting the contents of a
document that was made prior to, or simultaneously with, the execution of the
document.
However, it should also be noted that the rigidity of the rules is considerably
attenuated by way of the discretionary power granted to the courts, as is the case
with Articles 2721 and 2723, paragraph 2, of the Italian Code of Civil Procedure,
whereby courts may admit testimony after considering the nature of the parties
and the contract and every other circumstance of the case. A similar result of
reducing the effects of the exclusionary rules is obtained through the liberal resort
to the device of 'commencement de preuve par ecrit' (Article 1347 of the Code
civil). The commencement of proof in writing is defined as 'any instrument in
writing which emanates from the person against whom a claim is brought or from
the person he represents and which makes probable the alleged fact'. Witnesses
may be used to supplement a beginning of written proof. However, the preference
for documentary, over testimonial, evidence remains an important feature of the
mentioned legal systems intimately linked to the cultural context.
X. Sanctions for non-compliance with evidentiary

orders: the Principles' agnostic position
In its introductory part, Principle 17 recalls that 'courts may impose sanctions on
parties, lawyers, and third parties for failure or refusal to comply with obligations
concerning the proceeding'. It then enumerates various sanctions that may be
appropriate against parties; sanctions that may be appropriate against parties and
73 M Cappelletti and JM Perillo, Civil Procedure in Italy (Nijhoff 1965) 204.

7 S Schmidt, Civil Justice in France (Jigakusha 2010) 138, 141.
Rev. dr. unif., Vol. 19, 2014, 239-291

260 Nicol6 Trocker
non-parties; and sanctions against lawyers, without making any choice in favour
of any specific mechanism of enforcement of court orders. A certain preference is
shown for the 'soft' option of drawing adverse inferences against a non-coopera-
tive party-preferred by a number of continental legal systems. In this sense,
Principle 21.3 provides that 'when it appears that a party has possession or control
of relevant evidence that it declines without justification to produce, the court
may draw adverse inferences with respect to the issue for which the evidence is
probative'. This, however, is hardly an adequate remedy to provide an effective
solution to an important practical problem, especially if the adverse inference
takes the form of circumstantial evidence. As is the case in Italy, the circumstantial
evidence the court may draw from a party's procedural disobedience to produce
(documentary) evidence may be considered only 'as subsidiary factor ... to cor-
roborate evidence already acquired in the proceeding'.7 5
Countries that are serious about effective access to information and evidence
must be willing to enforce the cooperation of parties by compulsory means.
In France, an astreinte may be imposed to encourage compliance with court
orders directing a party to produce 'un e'iment de preuve' in its possession or dir-
ecting a third party to produce documents in its control.76 The array of sanctions
available to an English judge is extensive and varied in the case of violation of the
duty to preserve or produce evidence. The most serious breaches-destruction or
falsification of evidence-may be sanctioned with a default judgment or a dis-
missal of the claim. A formidable tool for securing compliance with orders in
relation to procedural requirements such as search orders and orders of disclosure
directed to non-parties is to hold a person for contempt of court (by imposing a
fine). A court can also draw adverse inferences against a party who has failed to
comply with the disclosure rules in CPR 31. Failure to comply with a pre-action
protocol may be sanctioned with an adverse cost order, a potent threat when costs
of litigation are high.
There is no question that courts ought to be able to sanction parties who do not
cooperate with the judicial process or who do not comply with procedural orders.
When procedural disobedience consists of the non-production of evidence, a
court should have broad discretion to determine the appropriate sanctions
among an array of procedural and compulsory measures. At the same time, a
court should always impose the least harsh sanction that can provide an adequate
remedy, and courts have to be sensitive to the need for an order to be made against
a litigating party to be proportionate to the reason for its imposition. The need for
proportionality and reasonableness is accentuated also in Principle 17.2 of the
ALI/UNIDROIT framework, which provides that 'sanctions should be reasonable
and proportionate to the seriousness of the matter involved and the harm caused'.
7 Some scholars have suggested that in case of non-compliance the court should order the inspec-
tion of the requested documents issuing the necessary measures for the enforcement. Besso (n 56)
120-1.
76 Cadiet and Jeuland (n 54) 433-4.
n Zuckerman (n 26) 817; Andrews (n 37) 111.
Unif. L Rev., Vol. 19, 2014, 239-291

At this point, a delicate question arises. Is it for the national legal systems to
determine the mentioned requirements of proportionality and reasonableness, or
do we have to look to some other source? The question has recently caused lively
discussion and conflicting views among European scholars and courts in connec-
tion with the highly publicized case Gambazzi v DaimlerChryslerCanada,Inc. and
CIBC Mellon Trust Company. In Gambazzi, the central question was whether
debarment from defending, and, consequently, losing on the merits as provided
under English law, was a proportionate sanction for non-compliance with a pro-
cedural order-a worldwide Mareva injunction combined with a disclosure
order. Some national courts held that the sanction imposed by the English
judges was no ground for denying recognition to the judgment. Others found
that debarment from defending was disproportionate and contrary to public
policy.7 9 The ECJ in its decision referred to the principle of proportionality but
did not offer specific indications to the national courts as to how to apply it to the
particulars of the case. However, the Court provided an important hint in that it
indicated that the ECHR was a possible source for determining proportionality. 0
This notion brings our attention briefly to the ECHR and the indications that flow
from the ECtHR case law on access to, and production of, evidence. A similar
suggestion also comes from the proponents of the present ELI-UNIDROIT project.
XI. Access to, and production of, evidence under the

ECHR: lessons from the Strasbourg case law
In the 60 years since its adoption, the European Convention on Human Rights,
through the institutions charged with monitoring and enforcing compliance with
its basic catalogue of rights, has significantly influenced civil procedure in all
European countries. A sophisticated jurisprudence built primarily around
Article 6 and the fundamental guarantee of the right to a fair trial has set out
principles, requirements, and standards in the field of access to information and
evidence to which the legal systems of a community of 47 States, including all of
the EU Member States, must conform.8 1 National legislators and State authorities
78 C-394/07 Gambazzi v Daimler Chrysler Canada,Inc. and CIBC Mellon Trust Company [2009] ECR
1-2563.
7 For references and in depth analysis, G Cuniberti, 'Debarment from Defending, Default
Judgments and Public Policy' [2010] Praxis des Internationalen Privat- und Verfahrensrechts
148, 152.
80 The European Court of Justice (ECJ) emphasized that sanctions should not be 'disproportionate'
but left it to the national (Italian) court to apply the principle specifically to the particulars of the
case after a 'comprehensive assessment of the English proceedings'. The Court mentioned the
Constitution of the enforcing State and the ECHR as important sources to consider. The courts in
Italy have found no violation of public policy and recognized the English judgment. See Corte di
Appello di Milano, Gambazzi c. Daimler Chrysler Canada Inc., (14 December 2010) (Int'l Lis
2011) 126.
8' The Court has repeatedly relied also on ECHR (n 7) art 8 and the procedural requirements
inherent in this provision. Good examples are the cases Roche v United Kingdom 2006 42 EHRR
30 [Roche] and Mikulic v Croatia (2002) 16 EHRR 485 [Mikulic]. For larger discussion, see
R Moeller, Verfahrensdimensionen materiellerGarantien(Lang 2005) 39.
Rev. dr. unif., Vol. 19, 2014, 239-291

262 Nicol6 Trocker
are advised that the concept of 'trial' has to be given a substantive, rather than a
formal, meaning and that the determination of civil rights and obligations covers
all proceedings the outcome of which is decisive for such rights and obligations.
In the context of the present survey, three aspects of the dense and elaborate
Strasbourg case law deserve to be briefly illustrated.
The first concerns the integration, by way of judicial law-making, of the rights
expressly mentioned in Article 6 with a bundle of rights that have been held
implicit by the Court. Among the rights held to be implicit in the right of a fair
trial is the right of access to justice. The Court highlighted in Golder v United
Kingdom (1975):
It would be inconceivable that Art. 6,par. 1, should describe in detail the procedural
guarantees afforded to parties in a pending lawsuit and should not first protect that
which alone makes it in fact possible to benefit from such guarantees, that is, access to
a court. The right of access to the courts (le droitd'accds aux tribunaux)constitutes an
element which is inherent in the right stated by art. 6, par. 1 of the Convention. 82
In the Court's subsequent refinement of the right of access to the courts, a crucial
role was played by the principle of effectiveness. Rejecting the argument that no
interference with the guarantees set forth in Article 6 takes place in the absence of
positive obstacles emanating from the State or a deliberate attempt by the State to
impede access to the courts, the Strasbourg judges stated in Airey v Ireland (1979)
that 'the Convention is intended to guarantee not rights that are theoretical or
illusory but rights that are practical and effective. This is particularly so of the
right of access to the courts in view of the prominent place held in a democratic
society by the right to a fair trial'.8 3
To insure that access to justice is maintained as a practical right and not just as a
theoretical one, the Court has supplied it with a fundamental 'ingredient': the
right to have access to information and evidence. In Roche v United Kingdom
(2005), the Grand Chamber was unanimous in concluding that there had not
been 'an effective and accessible procedure enabling the applicant to have access
to all relevant and appropriate information that would allow him to assess any
risk to which he had been exposed' and, consequently, to assess the chances of
bringing a claim. 84 In Gaskin v United Kingdom (1989), which involved an action
against the local authority with respect to harm suffered as a result of inadequate
treatment, the domestic courts held that the local authority was entitled to im-
munity from disclosing the files dealing with the claimant's care history, thereby
denying the claimant the only means for making out his claim. Clearly, this
treatment was found to contravene the ECHR. The claimant was, in those cir-
82 Golder v the United Kingdom [ 1975] 1 EHRR 524, para 36.

83 Airey v Ireland 1979 2 EHRR 305 [Airey, para 24.
84 Roche (n 81). Violation of the ECHR (n 7) art 8.
Unif. L. Rev., Vol. 19, 2014, 239-291

cumstances, denied access to justice since he was barred from the only source of
evidence that could prove his case.ss In McGinley and Egan v United Kingdom
(1998), the Court formulated the following strong statement:
[I]f it were the case that the respondent State had, without good cause, prevented the
applicants from gaining access to, or falsely denied the existence of, documents in its
possession which would have assisted them in establishing their rights, this would have
been to deny them a fair hearing in violation of Art. 6, par. 1.86
In Dombo Beheer BVv Netherlands(1993), relying also on another basic feature of
Article 6, paragraph 1-the concept of equality of arms-the Court underlined
that access to evidence means also that each party must be offered a reasonable
opportunity to present his case, including his evidence (y compris ses preuves),
under conditions that do not take him at a substantial disadvantage vis-d-vis his
opponent.8 7 Even if the Court decides on a case-by-case basis, with the main
emphasis clearly being placed on an attempt to do justice in individual cases,
the Court's decisions identify and consolidate European standards of rights and
provide orientation for future cases and the systematic development of the law.
Of great interest is also a second aspect of the Strasbourg case law. To ensure
that the Convention rights are practical and effective, the Court has developed
both a sophisticated notion of State responsibility and the doctrine of positive
obligations. In an important passage in Airey, it explained that:
[I]n the first place, hindrance in fact can contravene the Convention just like legal
impediment. Furthermore, fulfilment of a duty under the Convention on occasion
necessitates some positive action on the part of the State; in such circumstances, the
State cannot simply remain passive and there is no room to distinguish between acts
and omissions. The obligation to secure an effective right of access to the courts falls
into this category of duty.88
Other positive obligations arise more discretely. Their foundation lies in the
recognition that positive obligations have to be imposed on States and State
authorities to take steps to protect individuals in the exercise of their rights
from actions or omissions of other individuals or private institutions.8 9 An
area where the doctrine of positive obligations has the potential of being supplied
with particularly fruitful consequences is that of enforcement of obligations to
85 Gaskin v United Kingdom (1989) 12 EHRR 36. The Court declared the result to be contrary to the
ECHR (n 7) art 8.
* McGinley and Egan v United Kingdom (1999) 27 EHRR 1. But at the same time the ECtHR judges,
on various occasions, have emphasized that appropriate safeguards must be provided to protect
data that are of fundamental importance to a person's enjoyment of private life as guaranteed in
ECHR (n 7) art 8. ZvFinland (1997) 25 EHRR 371; in LL vFrance[2006] ECHR 11-588, the use of a
disputed medical report in contested divorce proceedings was found not proportionate to the
legitimate aim of protecting the rights and freedoms of others.
87 Dombo Beheer BV v Netherlands (1994) 18 EHRR 213. Following
the Dombo decision, the Dutch
Civil Code was amended to allow parties to give evidence as witnesses in their own cases.
88 Airey (n 83) para 24.
8 An example of the translation of these principles into positive obligations in the filed of enforce-
ment of judicial orders is Pini and Others v Romania (2004) 40 EHRR 13 paras 172 and 183.
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264 Nicol6 Trocker
disclose evidence. In order to obtain adequate protection of their rights, citizens

need courts that assist them in securing evidence necessary to establish their
rights. The court's assistance to compel production of evidence relevant to the
issues in the case might be crucial to enable parties to obtain relevant evidence
from opponents and from non-parties. Accordingly, legal systems must-and
most do-provide some compulsory measure to help litigants to secure relevant
evidence. A system that leaves witnesses free to refuse to testify and allows litigants
to withhold relevant documents from their opponents would fail to provide
citizens with an effective and meaningful procedure for vindicating their rights. 90
In Mikulic v Croatia(2002), the Court first emphasized that 'persons have a vital
interest, protected by the Convention, in receiving the information [evidence]
necessary to uncover the truth of an important aspect of their personal identity'.
Then it added an important warning:
[I]f a legal system-like the one involved in the case at hand-lacks any coercive
measure to compel a party to comply with the court's evidence order, conformity
with the principle of proportionality is assured only if it provides alternative means
enabling an independent authority [a court] to determine the relevant facts'. The
inefficiency of the available means should not leave a party without significant pro-
tection of her rights.91
The third aspect that needs to be considered-although the Court's contributions
in this area are rather opaque-is that the object and the purpose of the
Convention as an instrument for the protection of human rights and fundamental
freedoms requires that in defining civil disputes, in certain situations, preference
has to be given to values different from the ascertainment of the truth. Evidence
obtained illegally-in particular, evidence obtained in violation of fundamental
rights-has to be excluded.
In the nineteenth century, in both civil law and common law nations, the major
development in the field of evidence was the elimination of binding rigid rules of
admission and the evaluation of evidence. The reforms abolished rules that were
intended to determine the manner or method of finding the truth in civil and
criminal litigation. This was a formalistic, a priori, methodology of ascertaining
facts. The modern approach is inductive and concrete and not based on rigid,
abstract assumptions in actual cases.
In the twentieth century, one of the more significant evidentiary developments
has been the awareness that evidence obtained through illegal means must be
excluded. Rules were introduced, mainly in Codes of Criminal Procedure, to
protect extrinsic values, especially fundamental constitutional values. Evidence
9o Zuckerman (n 26) 127.

9' Mikulic (n 81). The Court found that in the case at hand the means available under the applicable
national law-the possibility to reach conclusions taking into consideration the failure to comply
with the Court order (for a DNA test)-was not, in itself, a sufficient and adequate means.
The Court explained: 'The procedure available did not strike a fair balance between the right of
the applicant to have the uncertainty as to her personal identity eliminated and that of her
supposed father not to undergo DNA tests'.
Unif. L.Rev., Vol. 19, 2014, 239-291

is excluded not because it is unreliable but, rather, because it was obtained in

violation of constitutional rights and despite the fact that some of the evidence is
probative of facts critical to the litigation. 92
In Article 3, the European Convention has a provision that enshrines a funda-
mental value that requires strict observance in the gathering of evidence. And the
Strasbourg Court-although in a finding of an Article 6 violation that was filled
with difficulties and unresolved questions-has stressed that cases should be
decided without resort to evidence obtained through methods of coercion or
oppression. 9 3 One might add, in more general terms, that it is already the fairness
requirement of Article 6 that imposes on courts the responsibility of not deciding
cases on the basis of evidence obtained in violation of rights under the ECHR. 94
European Codes of Civil Procedure of the last generation are clearly following
this path. The new Swiss Federal Code of Civil Procedure of December 2008, in
one of its 'general provisions on evidence' (Article 152, paragraph 2) requires the
judge to disregard illegally obtained evidence unless he or she considers the inter-
est in finding the truth to prevail.9 5 Even more explicitly, Article 287 of the new
Spanish Ley de Enjuiciamiento Civil of 2000, entitled Illicitud de la prueba,con-
tains rules designed to exclude evidence obtained by violating fundamental
rights.96 These examples should be seriously considered by prospective
European rule makers.
92 See the chapter on 'Illegally obtained evidence' in M Cappelletti and W Cohen, Comparative
ConstitutionalLaw (Bobs-Merrill 1979) 493-561.
9 Jalloh v Germany (2006) 44 EHRR 123, para 99-100. On the Member States' margin of appreci-
ation and the role of the principle of proportionality, see references to the Court's case law in R
White and C Ovey, Jacobs, White and Ovey: The European Convention on Human Rights (5 " edn,
Oxford University Press 2010) 287, 374-7.
9 In an earlier decision, the ECtHR made the following disappointing statement. Art 6 guarantees
the right to a fair hearing but does not lay down any rules on the admissibility of evidence or the
way it should be assessed, which are primarily matters for regulation by national law and the
national courts. Schenk v Switzerland (1988) 13 EHRR 242, para 46. In Chalkley v United Kingdom
(2002) 37 EHRR 30, the Court summarized the position as being that 'the use at trial of material
obtained without a proper legal basis or through unlawful means will not generally offend the
standard of fairness imposed by Article 6, paral, where proper procedural safeguards are in place
and the nature and source of the material is not tainted, for example, by any oppression, coercion,
or entrapment which would render reliance on it unfair', at para 24. Instead, the lack of a legal basis
raises an issue generally to be addressed under Article 8 (the right to privacy). Article 6 comes into
play only if the use of evidence illegally obtained renders the trial unfair.
9 SP Baumgartner, 'Civil Procedure Reform in Switzerland and the Role of Legal Transplants' in
Walker and Chase (n 38) 81. Also of great interest isthe recent French case law on illegally obtained
evidence and the role of the 'principede loyaut dans l'administrationde la preuve'. Ferrand (n 42)
34.
96 Esplugues Mota and Barona Vilar (n 45) 143-4. See also Ley Orginica 6/1985 del Poder Judicial
(1985) art 11, para 1: 'No surtirdnefectos laspruebasobtenidas,directao indirectamente,violentando
los derechos o libertades fundamentales'. J Montero Aroca and others, Derecho JurisdiccionalII:
Proceso Civil (Tirant la Blanch 2011) 271.
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266 Nicol6 Trocker
XII. European law on civil procedure and access to

information and evidence: the case of the
Evidence Regulation
European legislation has become a factor of our daily life. The EU regulates a
variety of fields through various forms of legislative and quasi-legislative activ-
ities. Among the fields of law that have become a priority within the legislative
activity of the EU, civil procedure has recently emerged. There is now a rather
long list of directives and regulations-in part passed under the powers of what is
now Article 81 of the TFEU (and therefore limited to transborder cases) and in
part under the predecessors of Article 114 of the TFEU (and therefore applicable
to domestic and supranational cases alike), which are sometimes presented
under the heading of law enforcement and the protection of substantive
rights-covering a range of topics that lie close to the heart of any system of
civil procedure. 97 Among these topics, the taking and production of evidence has
also increasingly attracted particular attention.
Already, the first stronghold of European law in the area of civil procedure, the
Brussels Convention on Jurisdiction and Recognition of Foreign Judgments in
Civil and Commercial Matters (Brussels Convention) (dating back to 1968 and in
force since 1973)-contained certain provisions that could be relied on in the
context of obtaining evidence in relation to litigation in Europe.9 8 In particular,
Article 24 could be used-and has been used-to obtain evidence by means of
protective measures in the State where evidence is situated. More problematic was
the perspective of an order for production of evidence in the State of origin to be
enforced in the State in which the evidence is situated.99
The switch of civil procedure from the so-called third pillar of EU law to the first
pillar under Article 65 of the EC Treaty has provided a direct competence of the
EU to legislate in the field of 'judicial cooperation in civil matters' (with cross-
border implications).aoo A competence that the Commission has immediately
used to also regulate and legislate in the area of evidence gathering, enacting
the Evidence Regulation (in force since 1 January 2004).101 In the context of
the present outlook, it might be useful to mention some of the problematic as-
pects that have emerged from its application, in particular, its missed
9 For a detailed discussion and analysis, see B Hess, EuropdischesZivilprozessrecht (CF Milller 2010);
E Storskrubb, Civil Procedure and EU Law: A Policy Area Uncovered (Oxford University Press
2008).
98 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters [1972] OJ L299.
9 W Kennett, 'The Production of Evidence within the European Community' (1993) 56 Modern
Law Review 347.
1oo Treaty Establishing the European Community [2002] OJ C325/33.
101 On the range of matters covered by the acts adopted under the framework set out by the
Amsterdam Treaty, see K Lenaerts, 'The Contribution of the European Court of Justice to the
Area of Freedom, Security and Justice' (2010) 59 Internationaland Comparative Law Quarterly
258; Hess (n 97) 461.
Unif. L Rev., Vol. 19, 2014, 239-291

'Integrationsfunktion',102 and point to some unresolved issues, which are a con-

sequence of jurisprudence from the ECJ that lacks coherence and vision.
1.Judicial cooperation as a vehicle of harmonization: the

Evidence Regulation's missed objective
Drawn on the recognition that civil courts have to deal with an increasing number
of cases where it is often essential to take evidence in a Member State other than
the one in which the matter is pending, the Evidence Regulation's principal aim
was to improve judicial cooperation between the courts of Member States in the
European judicial area so as to guarantee parties involved in cross-border cases
effective access to evidence useful to pursue their rights. To this end, the
Regulation provides for two different forms of cooperation. The first is modelled
after the traditional letter of request procedure but without the involvement of
State central authorities by which a court in one Member State can seek the aid of
the corresponding court in another Member State to obtain evidence from per-
sons or things within its territorial jurisdiction for use in the requesting State
(Articles 4-16). The second allows a court to take evidence in another Member
State directly (Article 17) but only with the consent of that Member State. In
addition, the evidence must be available on a voluntary basis, without the need for
compulsion.103
Key words of the Regulation are simplification, modernization, and efficiency.
The use of standard forms, the presence of deadlines, and the resort to commu-
nication technology not only in the transmission of the requests, as well as the
determination of limited opportunities and grounds for rejection or appeal are
intended to serve the mentioned objectives.
The Regulation does not directly affect national procedural law. Requests for as-
sistance are executed in accordance with the lex fori. Some flexibility is provided
in that the requesting court may ask for the request to be executed with a special
procedure provided for by its law.' 0 4 However, at the same time, it seemed that by
introducing a system based on direct contacts and communication between
courts, a basis for mutual dialogue-even if limited to cross-border concerns-
could be created and that the mutual experience would have the effect of also
influencing domestic national considerations. The Evidence Regulation was
received with praise because 'la mise en ceuvre de cette riglementation produira
une harmonisationen douceur des pratiquesjudiciairesen matidre de mesures d'in-
struction, par imprignation mutuelle'.'05 In fact, if harmonization, or perhaps
102 B Hess, 'Die Integrationsfunktion des Europdischen Zivilverfahrensrechts' [2001] Praxis des
Internationalen Privat- und Verfahrensrechts 389.
103 A Nuyts, 'Le riglement communautaire sur l'obtention des preuves: un instrument exclusif?'
(2007) 153 Revue critique de droit international priv6 53, distinguishing four methods of taking
evidence within the European judicial area.
104 Some countries have introduced specific provisions to satisfy incoming requests for 'special
procedures' (eg, requests for cross-examination). French Code de proc6dure civile, art 740.
105 Lebeau and Niboyet (n 16) 221; see also P Biavati, II diritto delle prove nel quadro normativo
dell'Unione Europea(Rivista trimestrale di diritto e procedura civile 2006) 483, 504.
Rev. dr. unif., Vol. 19, 2014, 239-291

268 Nicol6 Trocker
mutual acceptance, in this area is ultimately desirable, it would be important as a

first step to create a more widespread understanding of how the taking of evidence
works in the different systems.
The Regulation has certainly brought some positive and welcomed improve-
ments for litigants. Its use, however, has been very limited and its harmonization
potential remains unexplored.10 6 The situation will hardly change in the future
after the decisions of the ECJ in Maurice Robert Josse Marie GhislainLippens and
Others v Hendrikus CornelisKortekaas and Others (2012) and ProRailBVvXpedys
NV and Others (2013), which have strongly emphasized the optional nature of the
Evidence Regulation.1 07
Asked whether the Regulation precludes a court in a Member State from sum-
moning a witness resident in another Member State to appear before it in
accordance with its own rules of procedure, the ECJ held in Lippens that:
(a) Regulation 1206/2001 applies only if the court of a Member State decides to take
evidence according to one of the two methods provided for by that Regulation; (b) the
aim of the Regulation is to make the taking of evidence in a cross-border context
simple, effective and rapid; (c) this objectives may be better achieved by using the
national rules of procedure; (d) a court in a Member State is not precluded from
summoning as a witness pursuant to its national law a party residing in another
Member State and hearing that party under its national law. If the party summoned
is prepared to appear voluntarily it may be simple, more effective and quicker not to
use the mechanisms of the Regulation. If a party fails to appear as a witness without a
legitimate reason, the court remains free to take any measure laid down by the law of
its Member State provided that they are applied in accordance with European Union
law. 108
Evidence from parties and non-parties in a foreign country-the Court seems to
say-can be obtained without resort to the Regulation procedures. The
Regulation concerns the taking of evidence in another Member State.' 09
In Pro Rail, the Court carries things even further and states that the court of a
Member State:
1o6 EU Commission, Report on the applicationof the E.C. Regulation 1206/2001on cooperation between
the courtsof the Member States in the takingof evidence in civil or commercial mattersCOM (2007)
0769.
107 C-170/11 Maurice Robert Josse Marie Ghislain Lippens and Others v Hendrikus Cornelis Kortekaas
and Others [2012] ECR 540 [Lippens]; C-332/11 ProRailBVvXpedys NV and Others [2013] ECR
87 [Pro Rail]. For critical comments, see M Texeira de Sousa, Anmerkung (Juristenzeitung 2013)
98; 0 Kn6fel, 'Freier Beweistransfer oder 'Exklusivitit' der Rechtshilfe in Zivilsachen [2013]
Praxis des Internationalen Privat- und Verfahrensrechts 231.
"os Lippens (n 107) at paras 28-31, 38.
109 The conceptual framework in Lippens (n 107) is far from being clear and technically accurate. The
Court speaks of 'summoning parties as witnesses' but also of statements of parties and witnesses,
while national legal systems are rather careful on making specific distinctions in that regard. As to
the ultimate outcome, the solution adopted by the ECJ with regard to the European judicial area
reminds us of the decision of the US Supreme Court in Aerospatiale, 482 U.S. 522 (1987) con-
cerning the optional nature of the Hague Convention on the Taking of Evidence Abroad in Civil
or Commercial Matters (1968) [Hague Evidence Convention] and the forum State's jurisdiction
to take evidence from a foreign country.
Unif. L Rev., Vol. 19, 2014, 239-291

which wishes the task of taking evidence entrusted to an expert to be carried out in
another Member State, is not necessarily required to use the method of taking evi-
dence laid down by the provisions of the Evidence Regulation-in particular the direct
taking of evidence of Articles 1 and 17 of the Regulation-to be able to order the taking
of evidence. 1 o
Following the Lippens decision, the Court relies on the practical consideration
that 'in certain circumstances it may be simpler, more effective and quicker for the
court ordering such an investigation to take such evidence without having re-
course to the Regulation'. 1 Resort to the method laid down in Articles 1 and 17
of the Regulation is necessary only if the investigation entrusted to the expert
'affects the powers of the Member State in which it takes place, in particular where
the investigation has to be carried out in places connected to the exercise of such
powers or in places to which access is restricted to certain persons'.112
Some might appreciate the latter decision because it reduces sovereignty con-
cerns, thus opening up the European judicial area. 113 The troubling aspect of
Lippens and ProRailis that even in cross-border cases Member States will continue
to conduct the taking of evidence under their respective national rules and avoid
the dialogue by way of direct communication with the courts of other Member
States under the procedures of the Evidence Regulation, where possible.
Although the production of evidence within Europe is not as significant and
controversial an issue as between Europe and the USA, national systems within
the EU-as we have previously illustrated-still present significant differences in
their approach to the various means of proof, in the role of court orders, and in
the access to documentary evidence, not to mention the profound differences in
the sanctions for procedural disobedience and non-compliance. Serious problems
of mutual acceptance (and trust) are posed by these differences and discrepancies.
2. The Evidence Regulation's unspoken premise: a European

concept of 'taking evidence'?
In the first preliminary reference to the ECJ related to the Evidence Regulation, an
Italian court-Tribunale civile di Genova-in connection with an intellectual
infringement case sent a request under Article 4 of the Regulation to the Senior
n0 Pro Rail (n 107) at para 54 and the final ruling.

.. Ibid. Critics have rightly observed that 'Pragmatischesmuss auch auf eine dogmatisch tragfdhige
Begrandung zurackgefpihrt werden kdnnen'. But this is missing in the Court's reasoning. Knifel
(n 107) 232.
112 Ibid para 47. The Court does not seem to be concerned that there might be an issue of sovereignty
involved since it is'le seule originejudiciairede la mesure d'instruction',which generates'un conflit

de souverainetidslors que celle-ci a une vocation extraterritoriale'.H Muir Watt, Expertise (Dalloz
1995) 5, n 16.
113 It might be mentioned that a proposal of the German government to allow this kind of cross-bor-
der taking of evidence has not become part of the Evidence Regulation (n 15). For a precedent
under the Hague Convention (n 109), see the decision of the Cour d'appel Versailles (9 April
1993), reprinted in [1995] Revue critique de droit international priv6 80. The French court
ordered an expert to go to Madrid and to make findings as to the damages created by the collapse
of a building in construction.
Rev. dr. unif., Vol. 19, 2014, 239-291

270 Nicol6 Trocker
Master of the Queen's Bench Division, asking his English colleague to issue a
'description' (descrizione) of a supposedly patent infringing product locate in
London, pursuant to Articles 128 and 130 of the Italian Code on intellectual
property.11 4 Under Italian law, the description of goods and samples is performed
by a bailiff, accompanied, where appropriate, by an expert who inspects and
documents the object and may seize the relevant documents and samples. The
Senior Master refused to perform the request on the ground that search and
seizure of goods and documents fall outside the practise of the agents of the
Senior Master and can not be dealt with under the letter of request procedure.
Before the ECJ, the refusal to comply with the request was supported by the
governments of the United Kingdom (UK) and Ireland with the argument that a
'description' in fact constitutes an order for search and seizure, which is not covered
by the scope of the Evidence Regulation. The Regulation, these governments main-
tained, could only apply to the taking of evidence such as the hearing of witnesses,
the reading of documents, or the visual examination of other objects but not to the
forceful production of documents or items in order to enable their subsequent
examination. In their view, the taking of evidence must be distinguished from
'investigatory measures prior to the actual act of obtaining evidence'. Further, it
was argued that under common law the obtainment of evidence is not a duty of
courts or judicial agencies but, rather, a duty of the parties. The supervising solicitor
that serves and performs the search order is not a court agent.'" 5
In an extensive opinion, these arguments were dismissed by the Advocate gen-
eral on the ground that there is no clear line between an order allowing the search
for evidence and the subsequent examination of the evidence. Both aspects are
inextricably linked with the taking of evidence, and the concept of taking evidence
must be interpreted not as a mere reference to the internal law of one or the other
of the States concerned."' 6 Moreover, it has to be interpreted not too strictly,
having regard to the purpose of the Regulation that is facilitating judicial assist-
ance. Therefore, it should extend to 'as many judicial measures for obtaining
information as possible'.
In response to the objections put forward by the UK government, the Advocate
further observed that a distinction must be drawn between ordering a measure
and the performance thereof. The decisive factor is that courts are entitled to
order the requested measure. Accordingly, an order for the description of goods
under Articles 128 and 130 of the Italian Code on intellectual property should be
114 Case C-175/06 Tedesco v Tomasoni Fittings Sri [2006] OJ C154/8

[Tedesco].
115 For comment on these points, see C Besso, 'Cooperation in the Taking of Evidence: The European
Attitude' (2012) 2 InternationalJournalof ProceduralLaw 68, 79-80. In the observation submitted
to the Court, it was also suggested by the UK government that the measures at issue could have
been sought directly before the English court on the basis of art 31 of the Council Regulation (EC)
44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and com-
mercial matters [2001] OJ L12/1 [Brussels I Regulation].
116 Tedesco (n 114).
Unif. L Rev., Vol. 19, 2014, 239-291

considered as one of the measures for the taking of evidence that falls within the
scope of application of the Evidence Regulation.' 17
The issue still lacks an authoritative ruling by the ECJ as the Italian case was
resolved extra-judicially after the Advocate's opinion had been delivered and the
case was struck out of the Court's register. The lesson that should be taken is that
when European legislative products are placed alongside domestic regulatory
systems and rules and concepts are inserted in an 'alien' context with little or
no explanation as to their reach or meaning, misunderstandings and unforeseen
consequences may arise. Prospective rule makers dealing with matters of taking
evidence in a supranational perspective should be aware of these problems.1 18
3. The Evidence Regulation as exclusive channel for access to

information and/or evidence in the pre-litigation stage? The EC]'s
doubtfulfindings in St. Paul Dairy
In St. Paul Diary, the ECJ had to decide whether the provision in Article 186 of
the Netherlands Code of Civil Procedure concerning the preliminary examination
of witnesses prior to the commencement of proceedings could be characterized as
a provisional or protective measure within the meaning of Article 24 of the
Brussels Convention (now Article 31 of the Council Regulation (EC) 44/2001
on jurisdiction and the recognition and enforcement of judgements in civil and
commercial matters). 1 9 In its referral, the Dutch court explained that the func-
tion of the provision is not only to prevent evidence from being lost but also,
above all, to enable citizens involved in future civil actions to obtain clarification
of the facts in order to better assess their procedural position and decide whether
to bring forward a claim.
The ECJ answered in the negative, arguing, interalia,that an application to hear
a witness in circumstances such as those in the case referred to it could be used as
means of side-stepping the rules governing judicial cooperation within the EU
under the Evidence Regulation. Means of the kind in question, the Court held,
Care not covered by the notion of provisional, including protective, measures as
used in art. 24 Cony.' In the absence of any justification other than the interest of
the applicant in deciding whether to bring a case, to determine whether it would
117 lbid paras 40-5, 94, 101-4 (advocate general's opinion).
us PTCP (n 3) principle 16.1 provides a general definition of admissible evidence by means of a list of
admissible items of evidence but does not deal directly with the problem whether the so-called
'atypical evidence'-evidence not expressly regulated by the law-can be admitted when relevant.
This problem is differently solved in the various civil law systems, while common law systems do
not know this problem because of their different approach, based on the inclusive principle that
relevant evidence is admissible unless excluded or privileged. Taruffo (n 60) 163. The new Swiss
Code of Civil Procedure in art 168 provides for a conclusive list of admissible evidence. On the
notions and functions of 'evidence' in civil and common law systems, see L Cadiet, Observations
sur l'internationalisationdu droit de la prevue: Studi di dirittoprocessuale civile in onore di G. Tarzia
(Giuffri 2005) I, 305. As to the dangers that may arise from blind top-down harmonization, see C
Crif6, 'Europeanization, Harmonization and Unspoken Premises: The Case of Service Rules in
the Regulation on a European Small Claims Procedure (Reg. 861/2007)' (2011) 30 Civil Justice
Quarterly 283.
"9 Brussels I Regulation (n 115).
Rev. dr. unif., Vol. 19, 2014, 239-291

272 NicoI6 Trocker
be well founded, or to assess the relevance of evidence that might be adduced in

this regard, the Court asserted, the grant of such measures does not pursue the
aim of the jurisdiction laid down by Article 24 of the ECHR.12 0
The decision has been rightly criticized. 121 In fact, the ECJ seems to ignore the
important function of evidence pre-action devices to allow citizens to effectively
pursue their rights. The Court seems also to ignore that most States make pro-
visional measures available for the gathering of information and evidence in the
pre-action phase, well aware that a party should not be precluded from obtaining
information and evidentiary material in the forum where evidence is located,
pursuant to the law of that forum. 122 In a system committed to facilitating
access to information and evidence essential for the protection of rights, cooper-
ation between courts cannot be limited to cooperation on the initiative of the
court that has jurisdiction on the merits. Pretending the exclusive character of the
Evidence Regulation to cover all pre-actions for the gathering of information and
evidence also contradicts the objective of the instrument conceived to improve
the taking of evidence abroad.123 The cross-border taking of evidence under the
Evidence Regulation may be considerably slower and more cumbersome than
granting a provisional or protective measure. Parties should be free to choose
between provisional measures (which allow direct access to the court in the
Member State where the evidence is located) and the use of the Evidence
Regulation.124
4. The distinctionbetween information and evidence: what

'specificity'requirement?
Another issue of importance that came up in Tedesco v Tomasoni Fittings Sri was
the degree to which the requesting court has to specify the requested evidentiary
120 C-104/03 St Paul Dairy [2005] ECR I-3481.

121 J von Hein, 'Drawing the Line between Brussels I and the Evidence Regulation' (2008) 1 European
Legal Forum 34. Nuyts (n 103) 62, with important explanations as to the measures permitted
under art 31 of the Brussels I Regulation (n 115); Besso (n 115) 82.
122 The Court seems also to ignore that art 7 of the Enforcement Directive (n 19) sets out specific
obligations on the Member States to provide effective protective measures for the gathering and
preservation of relevant evidence. It has been rightly remarked that the introduction of the
Evidence Regulation (n 15) can not have determined 'un principe d'incompetence absolue de la
juridiction de l'Etat membre du lieu de situation des preuves lorsque le juge d'un autreEtat membre
est competent sur le fond du litige'. Nuyts (n 103) 68.
123 B Hess, 'Preservation and Taking of Evidence in Cross-Border Proceedings. Comparative
Remarks in the Context of I.P. Litigation' in A Nuyts (ed), International Litigation in
Intellectual Property and Information Technology (Kluwer 2008) 289.
124 In the alternative, it has been suggested to differentiate between substantive and procedural
law:
where domestic substantive law grants an enforceable right to demand the production or the
inspection of documents or other evidentiary material, art 31 of the Brussels I Regulation (n 115)
should apply in the same way as it does with regard to other substantive claims, while merely
procedural means for gathering or preserving evidence would fall under the application of the
Evidence Regulation (n 15). Von Hein (n 121) 35. The rather generally framed decision of the
Court has also been interpreted as not precluding pre-action evidence measures under art 24 (now
art 31) of the Brussels I Regulation as long as the objective is to preserve specific evidence. Besso
(n 115) 82.
Unif. L. Rev., Vol. 19, 2014, 239-291

material. 125 In this case, the request was for the performance of a description of
goods in London. However, the requesting court added that the description was
also to encompass other evidence of the contested conduct, such as 'by way of
example, however not exhaustively: invoices, delivery notes, payment orders,
commercial offer letters, advertising materials, computer archive data and
custom documents'. Did this request meet the requirements of Article 1,
paragraph 2, of the Evidence Regulation?
In examining the 'specificity' issue, Advocate General Kokott referred in her
opinion to Council Declaration 54/01, which states that the Evidence Regulation
must not apply to forms of pre-trial discovery, including so-called 'fishing ex-
peditions'. In order to comply with this indication and avoid excessive requests
for 'discovery' that find their way through the Regulation mechanisms, the
Advocate general suggested the following distinction with regard to the disclosure
of documents:
a) an order to produce documents is inadmissible 'if the documents sought lead only
to the identification of items which are capable of serving as evidence, but which
do not themselves serve an evidentiary function (so-called 'train of enquiries'-the
inadmissible search for material which may be relevant as evidence));
b) in order to be admissible, the documents have to be specified or described with
sufficient precision and have to be directly linked to the subject-matter of the dispute.
In fact, in the Tedesco case, the order of the Italian court, in part requesting further
unspecified documents, such as purchase invoices, payment orders, commercial
offer letters, data stored in computer archives, and so on-'by way of example,
however, not exhaustively'-did not meet these requirements. It was therefore
considered inadmissible by the Advocate general as it was lacking a sufficiently
precise description of the types of documents. 12 6
This conclusion, however, cannot be fully accepted. The advocate seems to miss
an important point. From a systematic, as well as from a functional, perspective,
two different situations must be distinguished: first, the general gathering of
information in the pre-litigation stage and, second, the taking of evidence in
pending proceedings. Different requirements of 'specificity' apply. In other
words, a distinction has to be made (although the distinction may not always
follow a clear line) between access to specific evidence that a party has identified as
being in the hands of the opponent or third party needed for the resolution of an
actual lawsuit and access to more general information from the opponent or third
party that is necessary when the litigant-as frequently happens in unfair com-
petition and intellectual property infringement cases-does not yet have a precise
perception of the events on which to build his case and the parties against whom
to start or to extend the claim. The Evidence Regulation should not be interpreted
as precluding every unspecified request aimed at establishing facts prior to the
125Tedesco (n 114).
126Ibid paras 70-5 (advocate's opinion).
Rev. dr. unif., Vol. 19, 2014, 239-291

274 Nicol6 Trocker
commencement of proceedings in the main claim.127 Evidence must be described

with a sufficient degree of precision once the proceedings have been instituted and
the facts on which the claim is based are sufficiently defined. In other words,
requests that might be considered inappropriate in the context of the evidence-
gathering process are not necessarily inappropriate at the pre-litigation
stage where requests may include documents that lead to other relevant docu-
ments or evidence, categories of documents loosely described (bank records
related to a certain period of time), and documents the party does not know
the contents of.
XIII. Access to information and evidence in the

pre-litigation stage: beyond 'Beweissicherung'
The ALI/UNIDROIT Principles approach the topic of access to information and
evidence from the perspective of actual litigation. In spite of the broad language
used in Principle 16's title, the focus of its provisions is on evidence, not on
information-evidence in the sense of probative material that supports, contra-
dicts, or weakens a fact issue that is an element of a litigation claim or a defence.128
Principle 16's opening statement specifies that courts and parties should have
access to relevant evidence. Relevance of an item of evidence is tested on the basis
of the capacity of that evidence to produce useful knowledge concerning state-
ments of facts that are alleged in the pleadings as a basis for claims or defences or
that have come to be discussed through the preliminary stage of the
proceedings.1 29
Recent developments in Europe show that the topic deserves to be considered
also from a broader perspective.' 30 In fact, in many situations, for parties wishing
to pursue their rights in court it is extremely important to have access to infor-
mation and evidence in the pre-action phase in order to determine whether there
are sufficient elements for a realistic claim to be made or to decide against whom a
suit can be brought. Access to information and evidence in the pre-action phase
may also be important to enable a party to decide whether to look for an extra-
judicial settlement of the dispute or initiate litigation in court.
The systems of civil procedure traditionally contain some means of ensuring that
prior to litigation evidence is preserved where there is a risk that it may be destroyed
or otherwise become unusable. Article 696 of Italy's Code of Civil Procedure, for
127 It should be mentioned that in one passage of her opinion, the advocate general recognized that
'[t]he exclusion of pre-trial discovery... cannot be interpreted as precluding every procedure
aimed at establishing facts prior to the bringing of proceedings in the main claim. That position is
precluded by the wording of Art. 1 (2) of the Regulation'. Ibid para 70.
128 PTCP (n 3) comments on principle 16, para 1.
129 On the relevancy requirement, see Section III of this article
and accompanying notes.
130 For an overall picture, see N Andrews, 'The Pre-Action Phase: General
Report for the 2007 World
Congress of the International Association of Procedural Law'. Detailed references in Andrews (n
37) 101ff. For the full version see N Andrews, 'The Pre-action Stage of Civil Proceedings' in A
Pellegrini Grinover and Petronio Calmon (eds), Direito ProcessualComparado:Proceedings of the
XIII World Congress on ProceduralLaw (EditoraForense: Rio de Janeiro, 2007), 201-41.
Unif. L. Rev., Vol. 19, 2014, 239-291

example, provides that 'if there is reason to fear that a witness will not be available
during the course of an action, his testimony may be taken even before the action is
begun'. Similarly, if a physical condition exists that seems to be relevant to a pos-
sible future action (or to an action that has not yet reached the stage at which proof
of that condition may be furnished), a judicial inspection may be made, or an
expert may be appointed by the court to examine and report on the condition.131
The German ZPO contains provisions on securing proof (prior to litigation) in
section 485.132 Situations cited as giving rise to the need for the evidence to be secured
are the imminent death of a witness, the fact that a witness is about to go abroad, or
the likelihood of a change in the evidence to be examined, such as a deterioration in
condition. 133 In a number of decisions of national courts, Article 24 of the Brussels
Convention has occasionally been used in relation to measures required for the
protection of evidence that might be destroyed or otherwise become unavailable.1 34
However, it is the wider (and different) perspective of obtaining access to in-
formation and evidence beyond the mere Beweissicherung objective that is of
particular interest in the present context (as one of the areas of discussion for
prospective European rule makers).
Drawing a connection between notice pleading and liberal discovery and
emphasizing the latter's function to enable parties not only to gather evidence
to prove or disprove facts recited in the complaint or statement of claim but also
to provide access to facts that enable parties to establish claims that they could not
establish without the disclosure of information in the control of defendants, the
US Supreme Court stated in Swierkiewicz v Sorema: 'Before discovery has un-
earthed relevant facts it may be difficult to define the precise formulation of the
required prima facie case'.135
In systems that apply the fact-pleading rule, as is the case in Europe, there seems
to be a growing awareness that some sort of preliminary 'discovery' has to be
allowed in order to prepare certain legal disputes and calculate their risk as well
131 Besso (n 56) 297.

132 The ZPO s 485, para 1 reads as follows: 'On the application of a party, the Court may order in the
course of litigation or prior to the commencement of proceedings the examination of physical
evidence and the questioning of witnesses and expert witnesses in order to preserve evidence. Such
an application is only permissible if the other party agrees to it or there is reason to be concerned
that the means of proof will be lost or its use made more difficult or if the present condition of an
object is to be ascertained and the applicant has a legal interest in doing this'. The Spanish Ley de
Enjuiciamiento Civil of 2000 has a detailed set of provisions dealing with the issues of 'Prueba
anticipada' (arts 293-8). See Montero Aroca and others (n 96) 283-7. Swiss Code of Civil
Procedure art 158.
133 ZPO s 485, para 2 has a different function in that it provides for the appointment of an expert
prior to the commencement of litigation in order to determine the state of a person or the state or
value of an object; the causes of personal injury, property damage or material defect; the effort
required to remedy a personal injury, property damage or material defect. The main objective of
the provision is to avoid litigation.
134 For references to earlier case law, see Kennett (n 99) 352. On the recent decision of the French
Cour de Cassation of 5 May 2011, see P Schlosser, Aus Frankreich Neues zum transnationalen
einstweiligen Rechtsschutz in der EU [2012] Praxis des Internationalen Privat- und
Verfahrensrechts 89.
135 Swierkiewicz v Sorema 122 SCt 992, 997-8 (2002).
Rev. dr. unif., Vol. 19, 2014, 239-291

276 Nicol6 Trocker
as to prepare the presentation of the relevant facts in reasonable detail and a de-
scription of the available evidence with sufficient specification during the pleading
phase.' 36 Recent developments in a number of European countries are moving in
this direction. In France, for example, courts have interpreted Article 145 of the
Code of Civil Procedure (mesures d'instruction d future) so as to facilitate access to
documents (and other evidentiary material) from an opponent or third party
before, and independently from, litigation on the merits, even beyond the require-
ment of there being a reason to preserve evidence upon which a solution of the
dispute may depend.137 In this way, prospective litigants are able to obtain 'infor-
mation' prior to the institution of proceedings on the subject of the matter, before
coming to them, whether to initiate a suit and against whom or to look for a
determination as to extrajudicial settlement of the dispute.138 The information
that is made available through Article 145 goes beyond a strict notion of evidence.
In addition, classes of documents may be disclosed and subjected to inspection, as is
shown in the following order made by the Paris Cour d'appel:
[E]njoint la socidtd Delaroche et... de communiquer, dans le trois jours suivant la sig-
nification du present arrit, l'ensemble des actes intervenues entre eux y compris les
bordereaux de transfert d'actions, les comptes de valeurs nominatives, les extraits des
registres mentionnant le transfert des titres y compris les proces verbaux d'assembldes
ginerales et des conseils d'administration.139
Mesures avant dire droit 'may be obtained if' le caractere ligitime de la demande se
diduit du constat que les alligations de son auteur n'dtaientpas imaginaireset qu'elles
prdsentaientun certain intirit.14 0
136 When dealing with issues of access to information and evidence in the pre-litigation stage, one has
to consider that there is also a substantive law perspective that must be taken into account. In fact,
in our legal systems there are various important provisions ofsubstantive law that create a 'right to
information' or an 'obligation to disclose' in the context of specific legal relationships. Such
substantive legal rights or obligations can be enforced judicially and are functional to gain factual
information and evidentiary material from private parties or from public entities in order, even-
tually, to start a proceeding. Good examples are ss 809 and 810 of the German B-irgerliches
Gesetzbuch (BGB). Other examples are the right of access to public files under Italian Law 241
of 1990 on administrative procedure and the duty to disclose banking records pursuant to art 119,
para 4 of the Legislative Decree 385 of 1993 (Testo unico in materia bancariae creditizia).
137 Art 145 states: 'If there is a legitimate reason to preserve or establishpriorto the commencement of
the proceedings, the proof of facts on which the resolution of a dispute may depend the legally
admissible 'measures d'instruction' can be ordered on application of any interested party either
inter partes or ex parte'. The pre-action expert report (consulenza tecnica preventiva) under the
newly introduced art 696bis of the Italian Code of Civil Procedure has much in common with the
French expertise preventive under art 145 of the Code de proc6dure civil.
138 For analysis and references to the rich body of case law, see L Cadiet, Code de procedure
civile (Lexis
Nexis 2012) 160-8.
139 Cour d'appel Paris (14 November 1985) Gazette du Palais 1986, 163. However,
see also Cour de
Cassation (16 June 1998) IR 1998,179; and (16 May 2012) D 2012, 2066, condemning 'excesses' in
the use of art 145. Judges are required not to order 'mesures gindrales d'investigation'.
140 Cour de cassation (5 November 1985) Bulletin Civil 1985 4, n 260. N Contis, Le procds civil et les
mesures avant dire droit (JCP 2010) 1132.
Unif. L. Rev., Vol. 19, 2014, 239-291

In the Netherlands, Article 186 of the Code of Civil Procedure deals with 'pre-
liminary hearing of witnesses prior to the bringing of proceedings'. As the
Amsterdam Court of Appeal explains, this provision:
is not only intended to enable material evidence to be taken from witnesses shortly
after the facts in dispute and to prevent evidence from being lost but also, and in
particular, to provide an opportunity for persons involved in an action subsequently
brought before the civil courts-those considering bringing such an action, those who
anticipate that the action will be brought against them, or third parties otherwise
concerned by such an action-to obtain advanced clarification of the facts (with
which they are perhaps not entirely familiar), so as to enable them better to assess
their position, particularly with regard to the issue of identification of the party against
whom proceedings must be instituted.141
English law has moved even further in that it addresses the pre-litigation stage
specifically. Under the former Rules of the Supreme Court, pre-action disclosure
was only permitted in limited circumstances. There was a statutory provision for
pre-action disclosure in cases of personal injury or death. The 1998 CPR intro-
duced two substantial changes in this regard. First, the pre-action disclosure
provisions were extended so that the power applied across all cases and was not
merely restricted to cases of personal injury or death. Second, the CPR introduced
the 'pre-action protocols' (CPR 26.4) whereby in various types of cases a standard
checklist was included that identified the categories of documents that it was
anticipated should be provided to the other side prior to any action being com-
menced. Their stated purposes are: (i) to encourage the exchange of early and full
information about a prospective legal claim; (ii) to enable parties to avoid litiga-
tion by agreeing a settlement of the claim before the commencement of proceed-
ings; and (iii) to support the efficient management of proceedings where litigation
cannot be avoided. 142 L Judge stated in Ford v GKR Construction Ltd (2000):
Civil litigation is now developing a system designed to enable the parties involved to
know where they stand in reality at the earliest possible stage, and at the lowest prac-
tical cost, so that they may make informed decisions about their prospects and the
sensible conduct of their cases'.143
Then there are the orders from Norwich Pharmacal Co v Customs and Excise
Commissioners-ajudge-made category of disclosure orders-first developed in
relation to intellectual property cases but almost at once used in a wide variety of
matters, whereby a non-party may come under an obligation to provide
141 In the referral that led to the widely discussed decision of the ECJ in St PaulDairy (n 120) at para
8. On the proposals to extend pre-action disclosure akin to the English model, see Verkerk (n 44)
214.
142 Andrews (n 37) 98; C Hollander, 'Documentary Disclosure: Lessons from the English Experience'
in Andenas, Andrews and Nazzini (n 60) 151, 157.
143 Ford v GKR ConstructionLtd [20001 1 WLR 802, 807 (CA).
Rev. dr. unif., Vol. 19, 2014, 239-291

278 Nicol6 Trocker
information in advance of proceedings.1 44 Anyone against whom a litigant or a

prospective litigant has a cause of action out of the same wrong is bound to
disclose the identities of other wrongdoers, even if the prospective plaintiff con-
templates only to bring proceedings against one of the unidentified wrongdoers.
An application under the Norwich Pharmacalrule will normally be made:
where it is clear that the applicant suffered a wrong-the wrong may take the form of a
tort, breach of contract, or some other civil or criminal wrongful act- but it is not
known who perpetrated it. But an order of disclosure may also be made where infor-
mation is required so as to determine whether a wrong has been committed against the
person seeking disclosure.
Prospective rulers, however, should also be mindful of the counter-constraints
that need to be carefully considered and regulated in this context. 14 6 First and
foremost, the willingness to enable prospective claimants to obtain 'information'
(or evidentiary material) prior to the institution of proceedings should not allow
prospective claimants to embark on 'fishing expeditions'-that is, roving inqui-
ries to make out a contemplated claim that is wholly speculative. Pre-action
disclosure requests require vigilant judicial control of the importance of the ma-
terial sought and the strength of the applicant's prospective case. If pre-action
disclosure orders become too easy available, there will be a risk that applicants will
seek to use them not so much for the purpose of making an early assessment of the
advisability of proceedings but, rather, in order to harass competitors or man-
oeuvre a potential defendant into an unattractive negotiating position. 47
Second, non-parties should be protected in their expectation to preserve con-
fidentiality and privacy 'whether in respect of their own private information, or to
satisfy duties of confidentiality owed to fourth parties'. In England, non-parties
cannot be ordered to supply confidential information unless the court is con-
vinced that the demand is justified in the interest of justice and that no other
source of information exists.148 Finally, safeguards have to be introduced in order
to avoid the situation in which pre-action disclosure increases unreasonably the
expenses of resolving disputes. 49
144 Norwich PharmacalCo v Customs and Excise Commissioners [1974] AC 133. On the origin and
development of this remedy, see Ch Hollander, 'Norwich PharmacalTakes Wings' (2009) 28 Civil
Justice Quarterly 548; Zuckerman (n 26) 499.
145 Zuckerman (n 26) 581. For the restatement of this jurisdiction, see House of Lords, Ashworth
Hospital Authority v MGN Ltd [2002] 1 WLR 2003. Access to information can also be obtained
through disclosure orders in 'freezing injunctions' (formerly Mareva injuctions) and search orders
(formerly Anton Pillerorders).
146 On the following, see Andrews (n 37) 106.
147 Zuckerman (n 26) 564, 575.
148 See the statement by Lord Bingham in Equatorial Guinea v Royal Bank of Scotland
International
[2006] UKPC 7.
149 On the increase of litigation costs caused by the pre-action protocol system, see Andrews (n 37)
100.
Unif. L. Rev., Vol. 19, 2014, 239-291

XIV. Pre-action disclosure of information and evidence

under the Enforcement Directive : a model law for
European civil procedure?
The importance of providing access to information and evidence in the pre-
litigation stage in order to assist parties to establish their rights in civil matters
has also been recognized in European legislation. An illustrative example of this
awareness are the provisions set forth in the Enforcement Directive.150
The Directive first sets out a number of obligations on the Member States with
regard to the gathering of evidence in the context of actual litigation. To this end,
Article 6 calls national legislators to ensure that if a right holder has presented
reasonably accessible evidence sufficient to support its claims and has, in sub-
stantiating its claims, indicated specific evidence that lies in the control of the
opposing party, the competent judicial authority may order that the opposing
party produce such evidence (subject to the protection of confidential informa-
tion). Article 6, paragraph 2, continues: 'Under the same condition, in the case of
an infringement committed on a commercial scale', national legislators have to
provide that the obligation to disclose (disclosure orders) extends to 'the com-
munication of banking, financial or commercial documents under the control of
the opposing party'.151
Well aware that in cases of infringement of intellectual property rights the
gathering of information and evidence in the pre-litigation stage is crucial for
the protection of these rights, Article 7 of the Enforcement Directive requires:
Member Sates to ensure that, even before the commencement of proceedings on the
merits of the case, the competent judicial authorities may, on application by a party
who has presented reasonably available evidence to support his claims that his intel-
lectual property right has been infringed or is about to be infringed, order prompt and
effective provisional measures to preserve relevant evidence in respect of the alleged
infringement.
150 For comment, see Hess (n 123) 295.

151 It has been rightly remarked that: 'Even though these obligations to produce evidence may seem
harmless and are well understood by scholars from jurisdictions embracing rather broad duties to
disclose, they are by no means self-evident. Some jurisdictions in Europe, among them Germany,
are far more restrictive in requiring the parties to a legal dispute to contribute to the establishment
of the true facts of the case.' Wagner (n 13) 10-11. Therefore, it is no surprise when the
Commission report on the application of the Enforcement Directive notes that in some
Member States the requirement of specific elements in art 6, para 1 is interpreted very restrictively.
Right holders who ask for evidence that lies in the control of the opposing party are frequently
requested to specify the exact character, location, reference numbers, and contents of the re-
quested documents, sometimes even the page numbers or the defendant's commercial records.
Where right-holders are not able to provide this information the requests are rejected by the
courts as vague. Another practice that reduces the effectiveness of the measures imposed by the
Directive is the tendency of many courts to interpret narrowly the term 'control'-a term that is
broader than 'possession'-limiting the extent of disclosure obligations to the items in the pos-
session of the person who is required to disclose. See the 'Analysis of the Application of Directive
2004/48/EC of the European Parliament and the Council of 29 April 2004 on the Enforcement of
Intellectual Property Rights in the Member States', Commission Staff Working Document
(Brussels, 22 December 2010) SEC (2010) 1589 final [Commission Report].
Rev. dr. unif., Vol. 19, 2014, 239-291

280 Nicol6 Trocker
Such measures may 'include the detailed description, with or without the taking
of samples, or the physical seizure of the infringing goods, and, in appropriate
cases, the materials and implements used in the production and/or distribution of
these goods and the documents relating thereto'. The rational of the provision is
clear. The holder of an intellectual property right who becomes aware of an
infringement of his right is often faced with the difficulty of being unable to
specify the evidence in support of the allegations or to have access to it since it
is in the possession of the party responsible for the infringement or of a third
party. 152
The Directive is also aware that when a potential claimant seeks information in
the pre-action stage to enable him to start proceedings, applications for obtaining
information are often not specified because the plaintiff is not in a position to
indicate precisely the information required. The potential plaintiff may often only
dispose of very imprecise information that a counterfeiting is taking place and
who the wrongdoers are. Accordingly, Article 8 of the Directive establishes a 'right
of information' for prospective claimants. Member States have to ensure that in
response to a justified and proportionate request-'fishing' for information is not
allowed-the holder of intellectual property rights obtains information on the
origin and distribution networks of the goods or services that infringe the intel-
lectual property not only from the infringer but also from any other person
(i) who was found in possession of the infringing goods on a commercial scale;
(ii) who was found to be using the infringing services on a commercial scale;
(iii) who was found to be providing on a commercial scale services used in
infringing activities or was indicated by the person referred to in (i), (ii) or
(iii) as being involved in the production, manufacture, or distribution of the
goods or the provision of the services.
In order to improve the ability to trace infringers, the information referred to in
paragraph 1 of Article 8 comprises not only the persons involved in the infringing
activities-that is, the persons at the end of the distribution chain-but also those
who are 'behind the scenes', often as part of complex distribution networks.
Furthermore, the provision in paragraph 2 allows for gathering information
about the quantities produced, including the price obtained. The right to
obtain information from infringers as well as from third parties was not a novelty
for all Member States. In times when the right to information of an English
litigant or prospective litigant was very restricted-mainly because of the 'mere
witness' rule-English courts rediscovered the historical right to file a bill of
discovery and crafted the Norwich Pharmacal remedy (1974) to compel a
person (or persons), not necessarily a prospective defendant, to disclose
152 The provision of Article 7 was inspired by the English search order (CPR 25.1) former 'Anton
Piller order' and the French saisie contrefafon. On the German implementation of the Directive,
see A Stadler, 'Auskunftspflichten und Geheimnisschutz im Zivilprozess nach Umsetzung der
Richtlinie zur Durchsetzung der Rechte des geistigen Eigentums' in Festschriftfir D. Leipold
(Mohr Siebeck 2009) 204.
Unif. L. Rev., Vol. 19, 2014, 239-291

documents or non-documentary information if that person was involved in an

alleged tortious act before the main proceedings had begun. 153
In Norwich Pharmacal,the claimants knew that their patent was being infringed
by illegal importations. They did not know, however, who the importers were and
could not sue them for infringement until they had found that out. They sued the
Customs and Excise commissioners. From the moment when the goods entered
the port until the time when the consignee obtained clearance and removed the
goods, they were under the control of the commissioners in the sense that the
commissioners could prevent their movement, specify the place where they were
to be put, or examine and test the goods. The commissioners also had customs
documents that would identify patent infringers and evidence the importation of
materials infringing the claimants' patents. The claimants sought an order for the
disclosure of their names and addresses.
The House of Lord, in granting the request, pointed out that 'if the information
was not made available by disclosure, no action could ever be begun because the
claimants would never know who infringed their patent'. 154 The effect of the
order would merely be to advance the time at which information would be
provided. In light of this landmark decision, the principle can be stated as follows:
if a person is mixed up, innocently or otherwise, in the tortious acts of others so as
to facilitate them, he comes under a duty to assist a person wronged by those
tortious acts by providing him with the information needed to sue the wrongdoer,
and in particular to disclose his identity.15 5
In transposing the Enforcement Directive, some Member States have moved in the
same direction and have provided for a right of information not only in the 'context
of judicial proceedings'-as foreseen in Article 8, paragraph 1, of the Directive-but
also before the formal proceedings. And there seems to be agreement that this pro-
vision has considerably improved the ability to trace infringers. Furthermore, the
right of information has had a significant impact on the possibility to establish the
'exact quantities of infringing products involved and therefore on the accuracy of the
calculation of damages', thereby reinforcing the judicial protection of rights.156
153 L Hoffmann, 'Changing Perspectives in Civil Litigation' (1993) 56 Modern Law Review 297, 300.
1 Norwich Pharmacalv Commissioners of Customs and Excise [ 1974] AC 133, [1973] 3 WLR 164.
s15 Hollander (n 144) 459.
156 Commission Report (n 151) 11. However, it must also be noted that serious difficulties
to access
relevant information, especially if the request for information is made before the beginning of
judicial proceedings, derive in some Member States because of the national provisions on the
protection of personal data. Clarification, at the European level, of the conditions as to the when
and how confidential information may be disclosed (or the processing of personal data allowed)
would appear to be useful. The need to balance the various rights was emphasized by the ECJ in
Case C-275/06 ProductoresdeMusica deEspatia [2008] ECR 1-271, where the judges reminded the
authorities and the courts of the Member States not to rely on interpretations that would be in
conflict with general principles of community law, such as the principle of proportionality.
Disclosure of relevant information is especially difficult in cases of intellectual property rights
infringements committed via the Internet such as illegal file-sharing of protected works through
peer-to-peer protocol where Internet services providers may often not be in a position to disclose
alleged infringers identities and contact details to right-holders even in the context of judicial
proceedings because of the privacy laws and the protection of personal data. Commission Report
(n 151) 12. See, eg, the decision of the Tribunale di Roma (17 March 2008) Guida al diritto 41, 67:
Rev. dr. unif., Vol. 19, 2014, 239-291

282 Nicol6 Trocker
What should be emphasized in the context of the present overview is that the
provisions of the Enforcement Directive-which were designed for a particular
substantive policy area-could fit in well with any modern code of civil procedure
under the chapter 'access to information and evidence'.15 7 Unfortunately, in
implementing the Directive, most Member States have only changed their specific
rules in the field of intellectual property and have not taken the opportunity to
adapt their procedural laws generally to the standards set out in this instrument.
The English courts, after developing the Norwich Pharmacalorder as a strong
weapon to deal with the piracy of intellectual property rights, have not confined
the remedy to the kind of cases for which it was invented. Almost at once, it began
to be used in a wide variety of cases. Courts simply regarded Norwich Pharmacal
as a useful weapon in their armoury. Today, the reach of this judge-made juris-
diction has been extended in almost every direction.15 8 Upcoming European rule
makers might follow this example and take guidance and inspiration from the
mentioned provisions for their work in the direction of setting standards for a
general right of access to information and evidence.
XV. Access to information and evidence in times of

computer technology: the challenges of electronic
discovery
Rather surprisingly, the ALI/UNIDROIT Principles are silent on the issues and chal-
lenges of modern electronic discovery.
Computer technology has revolutionized the way in which social relations are
lived and has revolutionized the way in which businesses are run. Companies
operate relying on their computer systems. Important business information is
created and communicated electronically. Even more importantly, electronic
storage devices-such as program files, websites, web storage, cookies, cache,
and the like-have replaced proper document depositories.15 9 All of these devel-
opments are not without significant impact on civil litigation.16 0 The mass of
stored information may become an invaluable resource for someone looking for
'[T]he discovery order, even if allowed by the Legislative decree 140/2006 implementing the
Enforcement Directive, cannot be issued when there is a reasonable risk of violating the privacy
rights of Internet users'.
157 For a similar consideration, see Wagner (n 13) 11, 13. Some
countries, such as Spain, have
introduced special provisions for intellectual property cases in their Code of Civil Procedure
instead of re-drafting the general rules on document discovery and access to information. See, eg,
Spanish Code arts 297, para 2; 328, para 3. Montero Aroca and others (n 96) 285-6, 303-4.
15 Hoffmann (n 153) 310; Hollander (n 144) 462.
159 According to figures of the US Advisory Committee on Civil Rules, in the USA 92 per cent of all
information generated today is in digital form and approximately 70 per cent of these records are
never reduced to hard copy.
160 The real revolution of e-discovery is taking place inside law offices. The technological aspects of
e-discovery have brought new professional and service providers to the market as well as whole
brand new departments of lawyers trained to face the hurdles of the digital world.
Unif. L.Rev., Vol. 19, 2014, 239-291

the decisive piece to start litigation or support a claim or a defence. Even a single
e-mail message can play a crucial role in the outcome of civil disputes.16 1
The actual rules of civil procedure in most European countries make almost no
reference to electronically stored information. Written at a time when informa-
tion was stored primarily on paper in the form of documents, the rules deal with
information stored on paper. Article 210 of the Italian Code of Civil Procedure,
for example, provides means to compel a party or a non-party to exhibit in the
proceedings a 'document or other [tangible] thing' but makes no provision for
data stored in electronic format. The French Code de proc6dure civile in dealing
with 'communication des pieces entre les parties' (Article 132) and 'obtention des
pieces ditenues par un tiers' uses an expression-pieces-that is hardly designed to
reach the various forms of electronic material. Article 1316-1 of the Code civil,
which was introduced at the turn of the millennium, simply adverts that docu-
mentary evidence as defined in Article 1316 of the Code concerns not only evi-
dence written on paper but also 'l'ecritsousforme e7ectronique' and Article 1316-3
specifies that if the conditions of Articles 1316-1, 1316-2, and 1316-4 are met,
'l'ecrit sur support electronique a la mime force probante que l'dcrit sur support
papier'.162
The German ZPO somehow deals unexpectedly with 'electronic documents'
under the heading 'Inspection of persons or things' in section 371, which provides
that 'if an electronic document is to serve as evidence, it shall be so offered as
evidence by producing or transmitting the file' and in section 371a, where it is
stated that 'the rules concerning the evidentiary value of private records and
documents shall be applied mutatis mutandis to private electronic documents
bearing a qualified electronic signature'.163 The mentioned provisions offer
only limited guidance regarding the many complex issues of electronic
disclosure. 164
161 The famous case Zubulake v UBS Warburg is a spectacular example. See the first of the five
decisions Zubulake v UBS Warburg217 FRD 309 (SDNY 13 May 2003).
162 See Law 2000-230 (13 March 2000). F Ferrand, 'Le droit frangais de la preuve face aux technol-
ogies de l'information et i la signature electronique' [2000] Zeitschrift fAr ZivilprozeB
International 75, 90.
163 On the unresolved issues, see JH Binder, 'Pflichten zur Offenlegung elektronisch gespeicherter
Informationen im deutschen Zivilprozess am Beispiel der Unternehmensdokumentation' [2009]
Zeitschrift far Zivilproze8 187 ff. Uncertainties derive also from the fact that while 'all forms of
electronic data are considered proven by inspection ordinary printouts of electronic data will
qualify as documentary evidence'. Murray and Stfirner (n 24) 261. Then there are the problems
concerning the applicability of ss 809 or 810 of the BGB: '[I]f the electronically stored information
is considered a "Sache" (object or thing) the former provision applies; if it is treated as an
"Urkunde" (document) § 810 comes into play with all the differences in terms of requirements
and scope'.
164 For the United Kingdom, see the detailed 'guidelines' of Practice Direction 31B Disclosure of
Electronic Documents,which applies to proceedings started on or after 1 October 2010 that are (or
are likely to be) allocated to the multi-track. It 'assists' the parties and the courts in the application
of CPR Rule 31. To that end, it offers a broad definition of electronic documents and clarifies
other terms and aspects related to electronic disclosure. It regulates the duty to preserve and
specifies the 'reasonable search' requirement. Parties and their legal representatives, before the
first case management conference, are required to discuss the use of technology in the
Rev. dr. unif., Vol. 19, 2014, 239-291

284 Nicol6 Trocker
The perspective of revisiting the traditional rules on documentary evidence to

adapt them to our digitalized society should therefore be seriously considered. 165
One might even suggest that rather than attempting to globally draft European
rules on access to information and evidence, a preferred way to proceed could be
to deal first of all with the new challenges and issues of electronic disclosure. Not
necessarily a paradigm but, rather, a valuable term of reference for European
efforts in this area could be found in the 2006 Amendments of the US Federal
Rules of Civil Procedure. The amendments concerned the definition of the term
electronically stored information; the forms of e-data production; the possibility
of avoiding discovery of electronic material when too costly or time-consuming;
the provisions allowing parties to dispute before the court the format of electronic
discovery; and, finally, a 'safe harbour' against sanctions for data spoliation that is
due to the routine operation of a business.166
The first main issue raised by electronic disclosure that requires analysis and
discussion is the redefinition of document. Where in traditional 'communication
ou production des pieces' a document is essentially a sheet of paper, the digital
revolution makes the picture blurrier. Only a portion of electronic documents are
the digital counterpart of traditional paper documents, simply stored on a dif-
ferent medium (such as text documents or e-mails). Many others present peculiar
features. Some electronic 'documents' are the result of operations (such as
queries) performed on dynamic databases so that they cannot be said to be
really 'existing' outside such operation. In general, an electronic document may
include the positioning of a mobile phone, the access log of a building security
system, the log of an electronic toll collection device, the GPS positioning of a
vehicle, the data on access and activities performed on a computer system, audio,
or video files, photographs, and much more. What all these elements have in
common is not being 'documents' but, rather, being 'electronically stored infor-
mation' (ESI). 167
It is also worth noting that even those documents that are more akin to a sheet
of paper in fact hide in the lines of their digital code a series of additional and
valuable pieces of information. A sheet of paper contains no more than what is
written on its surface. It is hard to determine its real author as well as the phases
and moments of its creation. On the contrary, an electronic document is
management of electronic documents. The basic purpose is to provide disclosure of electronic

documents in a proportionate and cost-effective manner.
165 The problem of electronic discovery is frequently discussed in the context of judicial conflicts with
the USA. See A Junker, Electronic Discovery gegen deutsche Unternehmen (Recht und Wirtschaft
2008); G Pailli, 'Alcune riflessioni sulla produzione di documenti elettronici: "e-discovery" amer-
icana e Unione Europea' in A De La Oliva, F Gasc6n and M Aguilera (eds), La e-Justicia en la
Unidn Europea (Aranzadi 2012) 129-51.
166 E Kim, 'The New Electronic Discovery Rules' (2011) 115 Yale Law Journal 1481; for background
information and basic definitions, see SA Scheindlin and J Rabkin, 'Electronic Discovery in
Federal Civil Litigation: Is Rule 34 up to the Task?' (2000) 41 BC Law Review 372.
167 R Marcus, 'E-discovery and Beyond: Toward Brave New World or 1984?' (2007) 25 Review of
Litigation 644, 649; R Marcus, 'Only Yesterday: Reflections on Rulemaking Responses to
E-discovery' (2004) 73 Fordham Law Review 1, 12-13, 16.
Unif. L. Rev., Vol. 19, 2014, 239-291

accompanied by a number of additional pieces of information, called embedded

and meta data in which one can read about the document's author(s), the dates of
creation and modification, possibly its various stages of evolution, and the iden-
tity of who made those changes. 68 It is clear that these data, if played in the right
way, can win or lose a game-for instance, uncovering the lies of who says that he
did not author a document or showing that, following certain events, a memo-
randum was altered and how.
Third, anything that is stored on a digital medium enjoys the additional feature
of not being easily erasable. The delete key does not actually remove the electronic
document from the realm of being but simply marks the corresponding physical
space on the disk as available for writing. It could take days, months, or even years
before the system in fact writes on these sectors. During this whole period, and
sometimes even after, the electronic document is there, ready to be recovered by
specific software. Moreover, it is a good commercial practice to keep backup
copies of the entire content of the company's computers, to avoid the conse-
quences of a computer disaster. Such copies are a true mine for an e-discovery
looking for the crucial information or evidence to win a case, the 'smoking
g 169
gun .
Other points of great complexity concern the duty to preserve and to produce
electronic records. Apart from the traditional issue of establishing the moment in
which a duty to preserve arises, the peculiarity of e-discovery relates to the ob-
jective scope of the duty to preserve. Organizations, including businesses, cannot
fairly be expected to keep all electronic information forever. If interpreted too
broadly, the duty to preserve could require a company to 'freeze' the state of the
information as it is in a certain moment. This could prejudice and even stop the
ordinary business of a company. Modification and elimination of digital data may
also be involuntary. At the pre-litigation stage, the governing rule should be the
rule of spoliation, meaning wrongful destruction of evidence. Once a litigation is
in prospect, or a complaint has been filed, a litigation hold should be placed on all
relevant material and the normal data elimination and recycling operations of
backup tapes should be suspended to avoid spoliation.170
The peculiarity of the duty to produce as applied to electronically stored infor-
mation, instead, relates to the difficulty of recovering data that has been elimi-
nated but is still recoverable or data contained in backup tapes or in obsolete
digital systems. 71 US courts have classified data in two categories: accessible and
inaccessible. The former comprises active/online data, near-line data, and offline
storage/archives, namely data that is immediately or easily available and that
168 S Bennet and J Cloud, 'Coping with Metadata: Ten Key Steps' (2010) 61 Mercer Law Review 471;
Marcus 'E-Discovery' (n 167) 650-1.
169 R Alexander 'E-discovery Practice, Theory, and Precedent: Finding
the Right Pond, Lure, and
Lines without Going on a Fishing Expedition' (2011) 56 SD Law Review 25, 35.
170 Marcus, 'E-discovery and Beyond' (n 167); R Marcus, 'Only Yesterday' (n 167) 13; Hazard,
Leubsdorf and Bassett (n 31) 365.
'1 R Marcus, 'Confronting the Future: Coping with Discovery of Electronic Material' (2001) 64 Law
and Contemporary Problems 253, 262.
Rev. dr. unif., Vol. 19, 2014, 239-291

286 NicoI6 Trocker
should be produced in every ordinary e-discovery. Inaccessible data is, instead,

data that are contained in backup tapes or erased and fragmented or damaged
data. In relation to this latter category, the duty to produce, or at least the duty to
bear the costs, is attenuated. 172
Another important element relates to the form of production of data in order to
avoid losing relevant information by altering the format in which ESI is stored. Rule
34, as amended, states: 'If a request does not specify a form for producing electron-
ically stored information, a party must produce it in a form or forms in which it is
ordinarily maintained or in a reasonably usable form or forms'. 7 3
Computers not only increase the quantity of written communications to a level
not even conceivable before but also render it extremely easy to store documents
and other information in electronic format. This means that more information
than ever is available. At the same time, however, this also means that a request for
discovery may be answered with an incredible volume of electronic data.
Reviewing and sifting such data for relevance to the case and possible claims of
privilege may be burdensome and expensive. Delicate issues of confidentiality
protection may arise as access to computer files may open access to trade secrets,
privileged material, or proprietary information about the way a responding party
uses computers to run its business.174 E-mails have become the standard medium
of office communication in corporations and governments. However, staff mem-
bers often intermingle official matters with personal talk, making it necessary to
separate what is relevant to the case from what is covered by privilege or protec-
tion of personal data.
With regard to the problem of how to allocate disclosure expenses, the traditional
principle is that the party requesting the production of documents bears the cost.
This burden may seem unfair regarding the costs associated with the recovering of
inaccessible data. In order to limit costs, American judges have developed the tech-
nique of first ordering a sample of inaccessible data to assess the relevance of such
data to the case and the costs of recovery and then deciding on whether to shift all or
part of these expenses over to the requesting party. Allocating all costs associated with
retrieving the data to the party requesting its production may well have the collateral
effect of 'chilling the rights of litigants to pursue meritorious claims'. 175
172 Zubulake v UBS Warburg 1217 FRD 319 (SDNY 2003).

173 D Willoughby and others, 'Sanctions for E-Discovery Violations: By the Number' (2010)
60 Duke
Law Journal 789, 792 reporting an increase in the number of sanctions, partially linked to the
increased use of e-discovery, and a predominance of violations relating to the duty to preserve.
174 Scheindlin and Rabkin (n 166) 349; S Berman, 'Cross-Border Challenges for e-Discovery' (2010)
11 Business Law International 128-29.
17 T Allman, 'The Case for a Preservation Safe Harbor in Requests for E-Discovery'
(2003) 70
Defense Counsel Journal 417, 419.
Unif. L. Rev., Vol. 19, 2014, 239-291

XVI. Access to information and evidence in Europe

through US discovery devices?
Years ago, when access to information for litigants or prospective litigants was
very restricted under English law because there was no right before trial to any
information from a non-party due to the 'mere witness' rule, a party to the action
before the English courts in the frequently cited case of South CarolinaInsurance
Company v Assurantie Maatschappij decided to invoke American discovery
against non-parties in the USA under the special provision of section 1782 of
Title 28 of the US Code, in order to obtain access to information that was not
available at home. 176 In recent times, parties from other European countries have
followed the same path in order to overcome limitations deriving from restrictive
disclosure policies of their domestic procedural systems. The phenomenon that
we have been witnessing in recent years is that while American-style discovery
requests continue to be a source of conflict and concern for parties from Europe
involved in (transnational) litigation before US courts, parties from Europe
involved in, or simply contemplating, litigation at home, with increasing fre-
quency resort to American-style discovery in order to have access to information
and/or evidence that they cannot obtain by using their domestic procedural de-
vices. 'Shopping' for such discovery has became common under a long neglected
provision of section 1782 of Title 28 of the US Code that makes access to discovery
available to foreign proceedings on the most comprehensive basis.17 7
Section 1782 entitles any 'interested person'-a notion that plainly reaches
beyond the universe of persons designated as 'litigants'-to resort to the
avenue of direct requests to the US court of the district 'where a person resides
or is found' applying for routine discovery of documents or other things under
the Federal Rules of Civil Procedure to be used in a proceeding, actual or con-
templated, in a foreign tribunal. In order to obtain a section 1782 order for
documents or other things, earlier court decisions have required non-US 'inter-
ested persons' to make a preliminary showing that the 'evidentiary material'
sought would be 'discoverable' in the non-US jurisdiction before obtaining dis-
covery in the USA.17 8 The US Supreme Court, in its landmark decision of June
2004 in Intel Corporation v Advanced Micro Devices, clarifies that 'nothing in the
text of § 1782 limits a district court's production order authority to materials that
could be discovered in the foreign jurisdiction if the material were located there'.
It goes on to explain: 'A foreign nation may limit discovery within its domain for
reasons peculiar to its own legal practice, culture or traditions', yet there is 'no
176 South CarolinaInsuranceCompany vAssurantieMaatschappij [ 1986] QB 348, Hoffmann (n 153)

300.
1' For an overall picture, see NJ Boyle, 'The Long Arm of the Law: The Availability of U.S. Discovery
in Non-U.S. Cases' (2010) 29 Civil Justice Quarterly 73; M Richter and J Kraayvanger, 'Die
U.S.-amerikanische Beweishilfe nach der Intel-Entscheidung des Supreme Court', [2007] Recht
der internationalenWirtschaft, 177.
178 For references to the rich case law, see our 'U.S. Style Discovery for Non-U.S. Proceedings: Judicial
Assistance or Judicial Interference?' [2011] InternationalJournal of ProceduralLaw 299.
Rev. dr. unif., Vol. 19, 2014, 239-291

288 Nicol6 Trocker
reason that, because a country has not adopted a particular discovery procedure,
it would take offence at its use'.179 The Court's ruling has been welcomed by the
lower courts, leading to an extremely generous policy to grant American discovery
requests from foreign parties (individuals or corporations) involved in litigation,
actual or contemplated, in their home country if it is motivated by the desire to
bypass limitations on access to information and/or evidence that exist in their
domestic procedural systems. In the view of some US courts, the inability of
foreign applicants to obtain the production of the requested evidentiary material
because of foreign 'proof-gathering restrictions or policies' make the exercise of
the power under section 1782 'necessary'.1so
Another aspect that must be noted is that section 1782's invocation of the
Federal Rules of Civil Procedure to the extent that the [discovery] order does
not prescribe otherwise is commonly understood in the sense that the standards
for discovery set out in the Federal Rules also apply when discovery is sought
under section 1782. In conformity with the standards of US discovery, relevance
in this context is broadly construed and 'encompasses any material that bears on,
179 Intel Corporationv Advanced Micro Devices 124 SCt 2466 (2004). For analysis and comment, see
the postscript of H Smit, 'The Supreme Court Rules on the Proper Interpretation of Section 1782:
Its Potential Significance for International Arbitration' (2003) 14 American Review of
InternationalArbitration 330; A Morgan Boeing, 'Majority and Dissent in "Intel": Approaches
to Limiting International Judicial Assistance' (2006) 29 Hastings Internationaland Comparative
Law Review 381; DC Sun, 'Intel Corp. v. Advanced Micro Devices Inc.: Putting "Foreign" Back
into the Foreign Discovery Statute' (2005-6) 39 University of California Davis Law Review 279;
MA Massen, 'Discovery for Foreign Proceedings after "Intel v. Advanced Micro Devices": A
Critical Analysis of 28 U.S.C. 5 1782 Jurisprudence' (2009-10) 83 Southern California Law
Review 875.
1so See Diedenhofen-Lennartz et al v Diedenhofen 931 A 2 nd 439 (Del Ch 2007). The US courts'
reference to restrictive foreign discovery laws as mere 'technical limitations' downplays the im-
portance of foreign policy choices and evidences the tendency of the American courts to qualify as
'a reasonable effort to overcome technical limitations' what in reality is a strategy of foreign parties
to 'bypass' restrictive foreign evidence rules. The assumption that providing discovery will pro-
mote efficiency in foreign litigation with international aspects informs also the decision in Procter
& Gamble Co 334 F Supp 2nd 110 (ED Wisconsin, 1 September 2004). Procter and Gamble
brought an action pursuant to 28 USC 5 1782 for the purpose of obtaining discovery from
respondents Kimberly-Clark Corporation (KC) and some of its employees for use in patent
infringement suits that KC had commenced against it in the United Kingdom, France, The
Netherlands, Germany, and Japan. KC opposed the request arguing, first, that because both it
and Procter and Gamble are participants in the foreign proceedings, Procter and Gamble can
obtain discovery in those proceedings and should not receive 5 1782 discovery until it has ex-
hausted its discovery opportunities in such proceedings. It also argued that the foreign courts in
which the actions are pending are in a better position to determine whether the documents sought
are relevant than is a district court in the USA. As an alternative to § 1782 discovery, KG proposed
that Procter and Gamble seek relevant documents in the action pending in the UK and then use
such documents in the other European actions. The court rejected KG's proposal as inefficient
and possibly ineffective, noting that 'it is more efficient for a court located in the U.S. to order
discovery from persons located in the U.S. than to force P&G to seek the same discovery in as
many as five foreign actions and return to this court if its efforts fail' and that the proposal may
also be ineffective, for it is unclear whether Procter and Gamble could obtain discovery in the UK
action in time to use it in the actions in France, Germany, The Netherlands, and Japan. KG also
proposed that, instead of depositing its employees pursuant to § 1782(a), Procter and Gamble
should take trial testimony from such employees via video-link between the UK and Wisconsin.
The Court rejected the proposal noting that 'trial testimony via video-link does not provide P&G
with a reasonable alternative. Taking a witness's pre-trial deposition is much different than
examining a witness at trial'.
Unif. L. Rev., Vol. 19, 2014, 239-291

or that reasonable leads to other matters that could bear on, any issue that is or
may be in the case'. 181
Discovery requests under section 1782 are granted where the applicant has
made a prima facie showing that the 'information sought has some relevance to
the foreign proceeding' or when it appears that discovery is 'generally pertinent to
the issues in the foreign litigation'. Discovery orders directing the production of
'all documents' concerning certain matters or 'all correspondence' among various
parties without detailed specification-orders that European courts would clearly
find not admissible because of their exploratory nature-are not necessarily con-
sidered overbroad or unduly burdensome under the standards governing section
1782 practices.' 8 2
The statute's unrestricted language has also encouraged the view that section
1782 does not contain an implicit geographic limitation barring foreign litigants
from seeking discovery of documents or other tangible evidence located outside
the USA. A telling example is the case In re GemeinschaftpraxisDr Med Schottdorf
& Partners.83 In this case the Southern District of New York held that discovery
under Section 1782 of documents located abroad-in the case in question,
located in Germany-can be proper even if the foreign country is the location
181 In re Application of Imanagement Services, 2005 WL 1959702 *3 (E.D.N.Y.): '[I]n resolving

dis-
covery disputes, the court will be guided by the procedures and practices governing discovery in
the Federal Rules of Civil Procedure, as provided in § 1782'.
182 In Cyrolife Inc v Tenaxis MedicalInc (ND Cal 13 January 2009) para 13, evaluating the
request for
discovery assistance presented in the context of a patent infringement action, the court empha-
sized that the petitioner, Cyrolife, is not obliged to establish a 'compelling need' for discovery;
'petitioner need only show that the information sought will be useful' [emphasis added]. Procter&
Gamble, 334 F Supp 2 nd at 1116: '§ 1782 requires only that the discovery sought be useful, not that
it be admissible [in the foreign action]'. 'Further the material sought that P&G seeks would be
discoverable in a district court, because it is either relevant to the issues presented or reasonably
likely to lead to relevant evidence'.
183 See In re GemeinschaftpraxisDr Med Schottdorf& PartnersFed R Civ P 26(b) (1)
(170) (SDNY 29
December 2006) [Schottdorf]. The case deserves a brief illustration.
The parties involved in the German litigation were a German partnership, Schottdorf which
performed laboratory testing for the German Health-Care System, a German association
(Kassenaerztliche Bundesvereinigung) that was responsible, under Germany's public health care
system for negotiating the fee structure for Schottdorfs work, and McKinsey, a New York
City-based international consulting firm that provided consulting services to the German asso-
ciation. In 1999, based on a McKinsey report, the German association negotiated a new fee
structure that reduced the per-test fees paid to Schottdorfand similar laboratories for each test
conducted in excess of 450,000 per quarter. The McKinsey report 'prepared in Germany recom-
mended reduction to reflect the laboratories reduced expenses resulting from economic of scale'.
Schottdorf, unhappy with the reduction, sued the regional branch of the German association
asserting a violation of equal protection. At trial, the German court requested a copy of the
McKinsey report from the German association, which responded that the report was
McKinsey's intellectual property and that the association's contract with McKinsey prevented
them from sharing the report. Without taking further action to obtain the report, the German
court upheld the new fee structure holding that the fee structure was valid because the association
had presented a plausible justification for the change. Schottdorf then filed an action against
McKinsey to force discovery of the report, but that action was dismissed for absence of legal
privity and lack of any viable tort theory for which McKinsey would be liable to Schottdorf. 'Still
empty-handed after exhausting available means in Germany', Schottdorf applied ex parte for
discovery under § 1782. The District court granted its application and McKinsey was served
with a subpoena to produce its report and related documents.
Rev. dr. unif., Vol. 19, 2014, 239-291

290 Nicol6 Trocker
where the litigation is pending. 184 The Court expressly rejected the argument that
section 1782 assistance cannot extend to the production of documents located
abroad because 'there is no such express restriction in the statute, and the court is
unwilling to engraft one onto it'. On the contrary, '§ 1782 requires only that the
person for whom discovery is requested-not the requested documents-be found
in the district'.18 Furthermore, the New York court found that the foreign courts'
decision to deny the discovery request did not mean that those courts 'would be
offended' if the District Court now granted it. The fact that the foreign party's
application is a 'last resort to acquire discovery that it was unable to obtain
abroad' does not substantiate an 'impermissible' use of section 1782 because,
'in some respects, that is precisely the type of assistance that the statute was
designed to offer'. 186
There is relatively little evidence as to how the courts in Europe react to evi-
dentiary material used and/or produced in proceedings before them after having
been obtained in the USA under the provision of section 1782 of Title 28 of the US
Code. In South Carolina Insurance Co v Assurantie Maatschappij 'de Zeven
Provincien' NV (1986), the English House of Lords found that a section 1782
application by a party involved in a lawsuit in the Commercial Court was not
'interference' with the due process of the English Court and that the application to
the US court did not amount to 'unconscionable conduct warranting an injunc-
tion'.18 7 Jurisprudence following Assurantie has adopted in part a different path
and has not hesitated to use the jurisdictional prerogative to restrain parties to
English proceedings from pursuing a section 1782 discovery by an US court that
'intolerably overloaded the pending action' and 'interfered with the due process
of the court' because of the 'speculative nature of the discovery sought and the
procedural stage in which the applications were made'.188 Some might approve
the latter attitude and forcefully stress that it is one thing for American courts to
insist that its procedures be used in aid of American litigation, quite another to
'impose' them on actions brought in foreign courts. However, the recent success
184 Schottdorf(n 183).

185 Ibid para 19.
186 Ibid para 15. Massen (n 179) 910. J Kraayvanger, 'Discovery im deutschen
Zivilprozess: uber den
Umweg der US - amerikanischen Beweishilfe' Recht der internationalenWirtschaft 2007, 496 .
187 South Carolina Insurance Co v Assurantie Maatschappij 'de Zeven
Provincien' NV [1986] 3 WLR
398. The argument that England would not oppose the granting of assistance under § 1782 was
used In re Application offonathan Guy Phillips2004 US Dist Lexis 16426, 6-7 (SDNY 18 August
2004).
188 Bankers Trust Int'l plc CLC 252, 254 (QB 1995). In restraining the pursuit of § 1782 proceedings,
the court also noted that US discovery would involve large costs and take up much time and that
there would be no right to recover costs in the USA. In Schmitz et al v BernsteinLiebhard &Lifshitz
376 F3rd (2nd Circ 2004) 79, the German authorities presented concern that 'the disclosure of the
documents [by way of § 1782] may jeopardize German sovereign rights'. The petitioners con-
tended that the motives were 'questionable' and argued that the German government was simply
trying to protect Deutsche Telekom [the opponent in the German proceeding], of which it is an
owner.
Unif. L. Rev., Vol. 19, 2014, 239-291

story of section 1782 as a welcomed and much used device by foreign-including

European-claimants or prospective claimants to overcome obstacles of restrict-
ive disclosure policies in their national procedural systems should also stimulate
us to venture a wider reflection on the proper extent of access to information and
evidence in modern civil litigation.
Rev. dr. unif., Vol. 19, 2014, 239-291

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and, in particular, the questions concerning the scope of evidentiary obligations

Unif. L. Rev., Vol. 19, 2014, 239-291

of the forum witnesses the difficulties to translate national differences intimately

Rev. dr. unif., Vol. 19, 2014, 239-291

Economic Community to the declared aim in Articles 61 and 65 of the

Unif. L. Rev., Vol. 19, 2014, 239-291

Rev. dr. unif., Vol. 19, 2014, 239-291

II. The 'adaptability' issue and the 'un-American'

Unif. L. Rev., Vol. 19, 2014, 239-291

Rev. dr. unif., Vol. 19, 2014, 239-291

Unif. L. Rev., Vol. 19, 2014, 239-291

American litigation culture bound up with the distinctive private enforcement

Ill. The Principles' standards for access to information

Rev. dr. unif., Vol. 19, 2014, 239-291

IV. Automatic exchange of evidentiary material or

Unif. L. Rev., Vol. 19, 2014, 239-291

to a mechanism of automatic disclosure, as practised under English law, where,

Rev. dr. unif., Vol. 19, 2014, 239-291

landmark decision in Hickman v Taylor (1947): 'Mutual knowledge of all relevant

V. The departure from the 'nemo tenetur' rule: an

Unif. L. Rev., Vol. 19, 2014, 239-291

prejudice of damages. Article 11 of the 'dispositions liminaires'of the new Code of

Rev. dr. unif., Vol. 19, 2014, 239-291

Unif. L. Rev., Vol. 19, 2014, 239-291

VI. Identification of the items of proof: 'testimony of

so Cadiet (n 21) 116.

Rev. dr. unif., Vol. 19, 2014, 239-291

supplemented by witnesses even in cases where, normally, evidence by witnesses

Unif. L. Rev., Vol. 19, 2014, 239-291

VII. Expert testimony or 'rapport des experts'? The

Rev. dr. unif., Vol. 19, 2014, 239-291

VIII. The issue of witness examination: an area left to

Unif. L. Rev., Vol. 19, 2014, 239-291

66 See, however, German ZPO s 377, para 3, as amended in 1990.

Rev. dr. unif., Vol. 19, 2014, 239-291

IX. The principle of free evaluation of evidence:

Unif. L. Rev., Vol. 19, 2014, 239-291

judiciaire... qu'une partie defere a l'autrepour en faire de'pendre le jugement de la

X. Sanctions for non-compliance with evidentiary

73 M Cappelletti and JM Perillo, Civil Procedure in Italy (Nijhoff 1965) 204.

Rev. dr. unif., Vol. 19, 2014, 239-291

Unif. L Rev., Vol. 19, 2014, 239-291

XI. Access to, and production of, evidence under the

Rev. dr. unif., Vol. 19, 2014, 239-291

82 Golder v the United Kingdom [ 1975] 1 EHRR 524, para 36.

Unif. L. Rev., Vol. 19, 2014, 239-291

Rev. dr. unif., Vol. 19, 2014, 239-291

disclose evidence. In order to obtain adequate protection of their rights, citizens

9o Zuckerman (n 26) 127.

Unif. L.Rev., Vol. 19, 2014, 239-291

is excluded not because it is unreliable but, rather, because it was obtained in

Rev. dr. unif., Vol. 19, 2014, 239-291

XII. European law on civil procedure and access to

Unif. L Rev., Vol. 19, 2014, 239-291

'Integrationsfunktion',102 and point to some unresolved issues, which are a con-

1.Judicial cooperation as a vehicle of harmonization: the