Fishing expedition or fair request for inspection of evidence?

A party to a procedure can demand inspection of evidence which is in possession of the opposing party. This request can be made to the court before or during a lawsuit. A request is only granted, however, when the requesting party has a legitimate interest. Not enough is a vague suspicion or allegation that the opposing party has done something wrong. A non-specific search for incriminating information is not allowed. Sander Schouten, Dutch contract lawyer, explains this element of the discovery process.

Obligation to produce exhibits in The Netherlands

In certain civil procedures you may be depended on information which is in possession of the opposing party. Evidence that may support your claim in court. But what if the opposing party does not cooperate? For these situations the legislature has created article 843a of the Dutch Code of Civil Procedure. According to this article a party can request the court to order the opposing party to produce exhibits, to allow inspection of documents or even to provide (copies of) these documents to the requesting party.

Dutch lawyer asks requests inspection of evidence

This obligation can naturally not be used beyond the fair scope of the lawsuit. If a party merely uses this procedure to find out (incriminating) information or business secrets, this is also referred to as fishing expedition. When a judge suspects this is the case, he will deny access to the opposing party’s documents.

Dutch case law on fishing expedition

An example of a fishing expedition in recent Dutch case law is the case between a company and their recently dismissed director. The company had sued the director on the grounds that the director had breached the non-competition clause which was part of the shareholders’ agreement. In order to back this claim the company requested the court in an interim action full access to documents of the former director.

Court denies Dutch lawyers’ request

The court denied the request because the company’s lawyer had nothing but vague allegations of wrongdoing. No concrete facts were brought forward. Inspection of evidence in this stage of the litigation process was considered premature and would only serve to find out if and how the director was engaging in competing activities. Besides, there were still other less intrusive ways to back up the claims of the company.