TAIWAN Law and Practice Contributed by: Jui-Hua Fan, Hsiang-Yang Hsieh, Chia-Hsin Wu, Chi-Ying Lee and Jin-Han Hsieh, Formosa Transnational Attorneys At Law
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
The TFTC’s Investigation Power When the TFTC is investigating an alleged violation, it may order the parties under investigation to produce materials that it finds relevant to the violation. Failure to comply with this request will result in administra - tive penalties. The TFTC may also conduct an on-site search and may seize any materials that it deems rel - evant to any alleged violations. Any parties that have interests in any of the TFTC’s current/past investigations may request the TFTC’s approval for access to the materials collected by the TFTC during its investigation. The TFTC will consider whether the requesting party has grounds to have access to the materials. 6.2 Legal Professional Privilege As noted earlier, there is no discovery in Taiwan’s legal system. When a party is requested to produce certain documents that are privileged, the requested party may refuse to obey the production order and explain to the courts the grounds for its refusal. It will be sub - ject to the courts’ discretion whether to impose any sanctions in response to a party’s refusal to produce. 6.3 Leniency and Settlement Agreements The TFTC will keep confidential materials that relate to leniency and/or settlement agreement. In particular, the TFTC may reduce sanctions on a member of a concerted action if the member actively reports the concerted action to the TFTC and helps the TFTC to investigate the concerted action. In this situation, the identity of the whistle-blower will be kept confidential. In the TFTC’s history of enforcement of the TFTA, there are two cases where the TFTC settled with the inves - tigated enterprises. The enterprises in these cases were Microsoft and Qualcomm. Except for the pub - lished version of the settlement terms, the specific terms and conditions of the settlements for these two cases were protected from disclosure.
For background, discovery is not available in civil, criminal, and administrative litigation proceedings in Taiwan. Court Order to Produce Materials A party to civil litigation may file a motion to order the opposing party or a third party to produce specific materials as evidence. In making such a motion, the moving party shall specifically identify the request - ed materials; overly broad or vague requests will be denied. If the requested materials are relevant to a fact substantially related to the moving party’s under - lying arguments, the court may grant the motion and order the requested party (or third party) to produce the requested materials. Such a court order is different from a search war - rant. As a result, if the requested party (or third party) disobeys the court order, the court cannot compel the requested party (or third party) to produce the requested materials; however, the court may render a ruling that imposes sanctions upon the requested party (or third party) in certain situations. Court Order to Preserve Evidence A party may also file a motion for an evidence preser - vation order if there is a possibility that the evidentiary materials in the possession of the opposing party or a third party will be destroyed or altered. The moving party may file the motion before or during litigation proceedings. The courts will grant such a motion when it is estab - lished that the requested materials are likely to be destroyed, hidden or altered. An evidence preservation order is also different from a search warrant. While the courts may request the requested party (or third party) to produce the requested materials, failure to produce the requested materials will result only in court sanctions or in courts’ stipulation of a certain fact in the lawsuit proceeding.
7. Witness and Expert Opinions 7.1 Witness Procedure
Witness testimony is one of the five types of eviden - tiary methods under the Taiwan Code of Civil Proce -
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