JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
Access to the JFTC’s Administrative Hearing Procedures As victims of alleged violation of the Antimonopoly Act, plaintiffs may request the reproduction and review of the documents submitted during the JFTC’s admin - istrative hearing procedures, in cases where an entre - preneur disputes the validity of a cease-and-desist order and/or an administrative surcharge payment order. Such documents include legal briefs and evi - dentiary documents submitted to the hearing proce - dures by a JFTC administrative investigator as well as the entrepreneur, but do not include documents within the files of JFTC investigators that were obtained or created during the course of their investigations. Access to the Case Record of Civil Court Proceedings Any person is entitled to review the case record of civil court proceedings where the validity of the JFTC’s cease-and-desist orders and administrative surcharge payment orders are challenged by entrepreneurs. Any person who has legal “interests” is entitled to obtain a copy of the case record, including briefs and evidence submitted by the JFTC, which may include documents the JFTC collected during its investigations. Plaintiffs or potential plaintiffs of private antitrust claims are likely to be included as a person who has legal “inter - ests” and may have access to such documents. While an entrepreneur, as a party to said civil court proceedings, is entitled to file a petition requesting the court not to disclose any documents to third par - ties, the scope of documents subject to such petition is limited to personal information and trade secrets. Court Request to the JFTC for Provision of Documents In the event that a damages claim is filed with the court, the court may, upon petition by the claimant, request the JFTC to provide plaintiffs with access to certain documents collected by the JFTC, including those collected from third parties during their investi - gations, except for certain information such as trade secrets and privacy information.
In the event that foreign law governs the claims, but the facts to which the foreign law applies do not con - stitute a tort under Japanese law, no claim for dam - ages or any other remedies under the foreign law will be accepted by the Japanese court. Even if the facts to which the foreign law applies constitute a tort under both the foreign law and Japanese law, the victim may only make a claim for damages or any other remedies permitted under Japanese law.
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
There is no procedure for comprehensive disclosure of documents under Japanese law, nor is there a dis - covery procedure. However, the following disclosure schemes may be available for private antitrust claim - ants. Court Order for Document Production Under the Code of Civil Procedure Under the Code of Civil Procedure, a party may request the court to order the other party or a third party to produce particular documents while the civil court proceedings are pending, with certain limita - tions. For instance, under the Code of Civil Procedure, there is no obligation to disclose the following: • a document relating to matters for which the holder or a certain related person is likely to be subject to criminal prosecution or conviction; • a document concerning a secret in relation to a public officer’s duties that, if submitted, is likely to harm the public interest or substantially hinder the performance of public duties; • a document containing any fact that certain profes - sionals (eg, a doctor, an attorney at law, a regis - tered foreign lawyer) have learnt in the course of their duties and that should be kept secret; • a document containing matters relating to technical or professional secrets; or • a document prepared exclusively for use by the holder. To render an order of document production against a third party, the court must seek such third party’s opinion in advance of rendering such order.
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