4 June 2013

Pre-trial discovery and disclosure in The Netherlands

Pre-trial discovery or disclosure in The Netherlands

The Dutch law system does not have proceedings for pre-trial discovery or disclosure, like the US or UK. However, in summary proceedings the attorney may be request the Dutch Court pursuant to article 843a Dutch Code of Civil Procedure to order a party to produce evidence. The party requesting for these documents should have a legitimate interest, e.g. case the evidence is necessary in a procedure. The documents should be specified properly. The judge will not allow a fishing expedition. The request for submission of documents can be made separately or during pending proceedings.

Preliminary hearing witnesses

Even if proceedings are not pending, the court can be requested to hear witnesses. Such preliminary witness hearings may be necessary in order to establish whether the claimant has a claim to submit to the court. Therefore the petition the claimant files with the court should indicate the facts he wishes to prove, as well as the particulars of the witnesses and the (possible) defendant(s).

Preliminary expert report

The claimant may wish to have investigated a technical issue by an expert. The claimant’s lawyer can file a petition with the court, explaining the facts of the case and the technical issue to be investigated. If the court allows the expert to be appointed, than an investigation will take place. The expert will file a report with the court. Very often such a report will be the basis for the writ of summons for main proceedings. The court is often inclined to follow the expert’s opinion in the report. However, the court is not bound by the report. Other (means of) evidence can be taken into account.