Discovery or production of documents
An order for the production of documents is an obligation to bring or present documents in a court proceeding
A request for production is a legal tool utilized for obtaining access to physical items, electronic data, and documents possessed by the opposing party in a legal case with the objective of acquiring valuable information about any pertinent evidence held by them.
Under the Finnish Code of Judicial Procedure, the court may order the production of an object or document or the production of a document for inspection if the object or document may be relevant as evidence or if the production of the document for inspection may be necessary to obtain evidence.
To succeed, the criteria laid down by law must be met: the document or object must be sufficiently identified, it must be in the possession of the person against whom the application is made, and it must be relevant as evidence.
The possessor of the document
The law provides that a request for documents may be addressed to the “person in question“, which means the person in possession of the document or object to be produced before the court. As a result, the obligation can be addressed to whomever or whoever is in possession of the document. The obligation to produce may also be addressed to parties other than the parties to the proceedings and to the public authority.
The obligation to produce requires that the document is shown to be in the actual possession of the person against whom production is sought. Actual possession may be taken to mean the power of a person to decide on the disclosure of documents. For example, a person’s tax assessment may be in the Tax Administration’s possession, but since the person also has control over and access to his or her own assessment, the request for a document may be directly attributable to the person.
Sometimes a practical problem can arise from complex ownership structures, where it is unclear which natural person controls the document or which member of a group of companies – e.g., parent company, sister company, or subsidiary – holds the business document. In the Finnish Limited Liability Companies Act, the starting point is the separation of ownership and management from the company, so that the claim must be able to be attributed to the right party or the request for production will be rejected. The burden of proof of possession is on the party claiming the right of access. The person concerned must be given an opportunity to be heard before an order is issued.
Identification
In a request for production of a document, the documents must be identified in sufficient detail to enable the addressee of the production order to comply with it and, if necessary, to enforce it. The document must be discoverable and distinguishable from other similar documents held by its holder. For example, in the case of a contract, the claimant should ideally identify the parties to the contract, the date of its conclusion, and the subject matter of the contract (e.g., deed of sale, lease, etc.).
The identification must enable an assessment of whether an individual document can be relevant as evidence in a case. The application of prohibition against reference against certain evidence also requires that the documents are sufficiently identified. The mere indication of the type of document or the subject matter of the evidence is not sufficient for identification. The “fishing for evidence” by which a claimant seeks to obtain documents at random without any knowledge of the documents contained in his request, let alone the information contained in any documents he or she may obtain based on his or her claim, will not be accepted.
However, the request for identification must not be impossible or unreasonably difficult for the claimant since the establishment of the substantive truth and the exercise of justice require flexibility in the interpretation of the request for identification.
Importance as evidence
The evidence’s relevance threshold is low. It is sufficient that the evidence may have probative value for something relevant to the case and requiring proof. The law requires the court to exclude evidence that is irrelevant or otherwise unnecessary. The applicant should state in his or her application the reasons for the facts that may be revealed by the document sought and the relevance of those facts to the dispute in question.
The right to refuse a request for a document
A person who is under an obligation or has the right to refuse to give evidence in a court hearing is not obliged to hand over an object or document to be used as evidence of confidential or privileged information. In addition, as a rule, it is permissible to refuse to give evidence in relation to a business or professional secret. If a person refuses to testify or to produce a document, he or she must state the reasons for his or her refusal.
In disputes between companies, the protection of business secrets is usually invoked. However, the protection of business secrets may be broken if the nature of the case, the importance of the evidence for the outcome of the case, the consequences of its production, and other circumstances are considered. The Supreme Court has held that the importance of the nature of the case must be determined on a case-by-case basis. In a dispute, weight may be given to the nature and extent of the interests at stake. The relevance of the evidence is also assessed. The availability of substitute evidence may also be relevant. The consequences of the introduction of evidence must be considered, from the point of view of the person in whose favour the prohibition on giving evidence is imposed. It should also be considered if, after the prohibition has been broken, the evidence is to be received in camera and ordered to be kept secret. Other considerations may include, for example, the requirements of a fair trial.
Decision
The judge decides on the request for a preliminary ruling. If the application is granted in whole or in part, the judge will order the request of production of the documents. If the request is not complied with, the court may, on application, order the party to produce the documents on pain of a penalty. As a rule, no separate appeal is allowed against the request, and the appeal is lodged in the main proceedings. The court may order an individual appeal against the request if, having regard to the substance of the decision, an appeal on the merits would be pointless and the legal protection of the person concerned requires a separate right of appeal or if there are otherwise profoundly serious grounds for doing so. In such cases, the main proceedings will remain pending the outcome of the appeal. The appeal must be dealt with as a matter of urgency.
