CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
tive position of the disclosing party. If the court grants this confidentiality request, the requesting party must provide redacted versions of such documents to the other parties. Additionally, parties may seek the production of docu - ments even before the commencement of the trial as a preliminary evidentiary measure. If the party required to produce documents fails to comply with the court’s order without just cause, the court may impose fines or arrests, without prejudice to repeating the order and warning. In addition, the defaulting party shall lose the right to assert at trial the documents that they did not produce in a timely manner (unless the other party also asserts them in support of their defence, or if it is justified that they were unable to produce them earlier, or if they relate to facts other than those that motivated the request for production). In addition, Article 51 of the Consumer Protection Act stipulates that, in class actions, if the defendant supplier refuses to provide documents and the court determines that this refusal is unfounded, the judge may consider that the opposing party’s claims about the content of these documents is proven for all legal effects. 6.2 Legal Professional Privilege The legal professional privilege is recognised and protected under Chilean legislation. Specifically, in relation to antitrust litigation, Article 39 (n) of DL 211 mandates that the FNE, in use of its investigative pow - ers, “may not intercept communications between the investigated subject and those persons who, by their status, profession, or legal function, such as a law - yer, doctor, or confessor, have the duty to maintain the confidentiality of the secrets entrusted to them”. Additionally, the FNE has acknowledged that this pro - tection is not only applicable to the interception of communications but also extends to the seizure of documents. Recently, the FNE has argued that in order for a com - munication to be protected by this privilege, three conditions must be fulfilled:
• the intervention of a lawyer, both in the organic sense (holding that status) and functional sense (acting in that capacity concerning the accused); • the confidential nature of the communication and its maintenance as such; and • the communication aims to seek legal advice in the context of defence. The TDLC has also recognised this protection even in cartel cases if the documents have been produced by outside counsel, thus excluding in-house counsel (TDLC decision in case C-386-2019 FNE v Biomar ). 6.3 Leniency and Settlement Agreements Leniency Applications In Chile, there are not formal leniency agreements, but rather the agreement is formed by a leniency applica - tion and an FNE resolution accepting the application. It is important to note that Chilean law only provides for leniency applications in cartel cases. These applications are typically kept confidential, being declared as such by the FNE during the car - tel investigation. Then, during the trial, the TDLC will maintain the declared confidentiality, but may order the FNE to prepare a public version of the leniency application, with redactions to safeguard information that could significantly impact the competitive posi - tion of the leniency applicant. Settlement Agreements The FNE is authorised to enter into out-of-court settle - ment agreements with the investigated parties, which must be disclosed in a public court proceeding, to request the TDLC’s approval. Accordingly, regarding these agreements, the prin - ciple of transparency applies. This principle ensures that both the existence of the settlement and the associated procedural actions ‒ including the resolu - tion calling for the TDLC hearing, the hearing itself, and the resolution approving or rejecting the settle - ment ‒ are public. Any legitimately interested party is entitled to access this information and even take part in the hearing. The aforementioned transparency is, however, subject to the protection of confidential information as stipu -
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