Requirements for demanding the production of exhibits in the Netherlands

A Dutch woman was left with permanent brain damage after a fall in wellness centre Thermen Bussloo. She became unwell after stepping out of a jacuzzi. The woman wanted to hold Thermen Bussloo liable, but she had no evidence that the jacuzzi was set incorrectly. Her lawyer brought preliminary relief proceedings and demanded the production of exhibits. Dutch Litigation Lawyer Thomas van Vugt explains the ruling.

Requirements for allowing such a demand in the Netherlands

The usual problem in liability cases is that the injured party has no evidence that the other party had acted unlawfully. The information may be there but is in possession of the other party, who will not submit these data voluntarily. Dutch law has made a provision for this in the form of a demand for the production of exhibits. This demand is contained in Article 843a of the Code of Civil Procedure and can only be allowed if the following four requirements are met:

• the person bringing the action must have a legitimate interest;
• it must concern certain documents;
• the documents must concern a legal relationship to which the claimant or their legal predecessor is a party;
• the person from whom the documents are requested must have them at their disposal.

Grounds for exception in the Netherlands

Furthermore, the demand will be rejected if there is a ground for exception, namely:

• a person who, by virtue of their office, is required to observe secrecy will not be required to satisfy the demand if the documents are available to them or in their custody solely on that ground;
• there must be no compelling reasons for not being obliged to satisfy the demand;
• proper administration of justice must be ensured even without the provision of the requested information.

Providing employees name and address

First of all, the woman’s lawyer demanded the name and address details of the employees who were on the spot after the incident. The lawyer wanted to call them as witnesses to find out if the jacuzzi’s settings had been incorrect. The court in preliminary relief proceedings rejected this demand. The employees in question had not carried out any measurements so their statements would not provide any definite answers about the jacuzzi’s temperature. Therefore, the woman had no interest in this demand.

Lawyer demands surrender of technical data

Moreover, the woman’s lawyer demanded technical and administrative data such as the measurement data of the jacuzzi, its logbook, periodic inspection reports, and accident registration. The court dismissed a part of these demands because Thermen Bussloo had already provided these documents. One part was rejected because the requested data simply did not exist. However, Thermen Bussloo had to produce the offers, invoices, and work slips in relation to the jacuzzi. If there had been any faults in the jacuzzi, the woman would have had a legitimate interest in a copy of the maintenance history.

Dutch lawyer for filing demand for production of exhibits

Finally, the court established that Thermen Bussloo had apparently failed to record the incident in the accident registration. This may mean that Thermen Bussloo had acted unlawfully. Therefore, the woman had a legitimate interest in a copy of the accident registration. After all, the accident registration may have provided her with evidence if it shows that visitors had fallen ill before, due to the bath water being too hot or faulty jet streams in the jacuzzi.