JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
Court Order for Preservation of Evidence Under the Code of Civil Procedure Under the Code of Civil Procedure, a potential plain - tiff may file a petition for a court order to preserve evidence prior to filing a lawsuit if there is a risk that the evidence will become difficult to use, unless it is reviewed in advance. This order essentially serves as an order of pre-action disclosure of evidence. Access to the Case Record of Criminal Court Proceedings As the victim of a crime under the Antimonopoly Act, a plaintiff may have access to the documents submitted to the pending criminal proceedings if certain require - ments are fulfilled. Any person may access the docu - ments submitted to the criminal proceedings once the proceedings are finalised. However, a plaintiff does not have access to the documents within the files of public prosecutors obtained and created during the course of criminal investigations. 6.2 Legal Professional Privilege Under civil court proceedings in Japan, documents cannot be withheld from disclosure on the basis that they are privileged. Unlike in common law jurisdic - tions, there is no concept of attorney-client privilege or other privilege to protect attorney-client commu - nication or attorney materials under the civil court proceedings. Attorneys have the right to refuse to give testimony concerning their communication with their client and they are not obliged to produce documents exchanged with their clients and regarded as “a docu - ment containing any fact which certain professionals have learnt in the course of their duties and which should be kept secret” or “a document containing matters regarding technical or professional secrets” under the Code of Civil Procedure. However, clients have no right to protect their communications with their attorneys on the basis that they are privileged in civil court proceedings. It is noteworthy that the 2019 Amendment introduced the protection of attorney-client privilege to the JFTC’s administrative investigation procedures for unreason - able restraint of trade; however, such protection does not apply to antitrust litigation cases before the Japa -
nese courts. Nevertheless, it is expected that attor - ney-client privileged documents will not be submitted to the civil proceedings as evidence by the JFTC. 6.3 Leniency and Settlement Agreements Regarding leniency materials, the JFTC has a policy under which it will not disclose information submitted by leniency applicants unless the applicant wishes to disclose such information. Such information will be excluded from the information subject to plaintiffs’ requests for reproduction and review of documents submitted to JFTC administrative hearing procedures and will also be excluded from the information subject to the court’s request for access to the documents collected through the JFTC investigations. Under the newly introduced commitment procedure, the JFTC may use the materials submitted by the petitioner during the course of the commitment pro - cedures for further investigations if the JFTC disap - proves of the petitioner’s plan to take the necessary measures to cease the entrepreneur’s conduct alleg - edly violating the Antimonopoly Act. The degree to which the materials submitted to the commitment pro - cedures are protected from disclosure in future anti - trust private litigation proceedings will be a significant issue in this field. Witnesses of fact are relied on in civil court proceed - ings in Japan. A party to a lawsuit may make a request to the court for the examination of a witness of fact and the court will determine whether such witness examination is necessary for the purpose of finding the relevant facts. Upon such request, a party is usu - ally asked to submit a written statement of the witness to the court in order for the court to decide whether to call the witness. In general, witnesses of fact are subject to cross-examination in relation to the matters raised during direct examination. Judges may also ask the witnesses supplementary questions after exami - nation by the parties. In civil court proceedings in Japan, the court may order a subpoena for witnesses who do not voluntar - 7. Witness and Expert Opinions 7.1 Witness Procedure
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