Disclosure of documents under Dutch law

12 May 2005

Arine van der Steur

Since January 2002, the scope for disclosure of documents has been extended under Dutch law. Previously, Dutch law restricted disclosure to documents bearing a signature. However, clause 843a of the Code of Civil Procedure (the "Code") now provides for disclosure of documents in general (including movies, pictures, audio tapes, CD-ROMs and computer files). This new scheme makes The Netherlands a more attractive forum for both national and international parties to commence proceedings.

The new Dutch law does not permit 'fishing expeditions'. For instance, a claimant may not claim inspection of 'all correspondence' or 'all meeting reports', even where such claims are limited to certain periods. The law requires the claimant to describe the documents precisely and to specify exactly which document he is requesting. This is based on the idea that a request for disclosure is only justified where the claimant knows of the existence but cannot get possession of the requested documents.

In addition, the claimant must have a justified interest in obtaining the documents. This implies that the statement the claimant wants to prove cannot easily be proven by other means, such as through examination of a witness. The evidence must also be necessary in connection with the proceedings. Where there is conflict about whether the document is necessary, the judge has discretion based on balancing advantage to the claimant in receiving the evidence against disadvantage incurred by the disclosing party.

The request for disclosure can be submitted during and prior to proceedings, but also by issuing “rogatory letters” (by which, parties can ask courts of other jurisdictions to examine evidence). Outside proceedings, a request for disclosure is submitted by issuing a writ of summons to the party holding the documents. However, the claim will only be sustained by the court if the documents are relevant to the legal relationship between the parties. A contractual relationship will certainly be sufficient to claim inspection of all documents relevant to the relationship. The explanatory memorandum of clause 843a of the Code, also states that a relationship arising from a wrongful act can be sufficient. Despite this, the Dutch Supreme Court rejected a request for disclosure for bank accounts of third parties in connection with an alleged wrongful act by the bank on the grounds that the third parties had nothing to do with the relationship between the claimant and the bank.

Professionals, who may refuse to give evidence for professional reasons, are also entitled to refuse to disclose documents they possess. However, if the other party refuses to disclose information without good reason, the claimant could try to stipulate a penalty clause or try to attach the documents before judgment. Documents which can be legitimately refused include confidential documents, medical records and financial records. In case of conflict, the judge will on a case-by-case basis, balance the interests of the claimant against the interests of the refusing party.

Furthermore, a judge can decide the way in which the documents are disclosed. For instance, the judge may order disclosure by way of a civil-law notary or a medical practitioner and the claimant pays any additional costs for specific disclosure.

The whole scheme provides broad possibilities for requesting disclosure of documents. The Dutch judges still have to get used to these new possibilities and the increasing growth of such claims. The appeal court of Amsterdam has recently stated that clause 843a could even provide a basis for a claim on Internet Service Providers to disclose the name, address and residence of an internet user. Unfortunately, the appeal court has not explored this possibility further.

The new possibilities under Dutch law for disclosure of documents, give both Dutch and international parties broad opportunities to secure evidence. Consequently, foreign parties may, within the limits of clause 843a, request disclosure of evidence held in The Netherlands by a party to the proceedings or a third party, both before and during the proceedings.