BRAZIL Law and Practice Contributed by: João Areosa, Guilherme Peres de Oliveira and Raphael Rangel, Areosa Advogados
describe topics or areas of inquiry; demonstrate rel- evance to facts at issue in the case; show inability to obtain documents through other means (documents under the opposing party’s or a third party’s control); and establish that the request is proportionate to case needs and not unduly burdensome. Vague or overbroad requests (“all documents relat- ing to…”) are typically denied. Specificity is required. However, categories of documents may be requested if adequately defined (eg, “all board minutes from Jan- uary to June 2022 discussing the challenged market- ing campaign”). Judicial Discretion Courts evaluate production requests considering rel- evance and necessity to prove facts at issue; propor- tionality between the burden of production and the information’s value; protection of privacy and confi- dentiality; protection of business secrets and propri- etary information; and constitutional rights to privacy and intimate life. Judges balance the need for evidence against com- peting interests. Production orders are common when clearly necessary, but courts protect against fishing expeditions. Scope of Production Document production in Brazil is: • Limited to specific identified documents or defined categories. • Not a general exploration of the opposing party’s files. • Subject to judicial control and proportionality limits. • Focused on documents necessary to prove spe- cific facts in dispute. The requesting party must explain what facts each document will prove and why other evidence cannot
website content, social media posts and messages, and electronically stored information. Authentication requirements apply, and parties may challenge the authenticity of electronic evidence. Digital forensic experts may be appointed to analyse electronic evidence, recover deleted files or verify authenticity. Production From Third Parties Courts may order third parties to produce documents or information relevant to collective actions. This is particularly important for: • Banking records and financial information. • Medical records and healthcare information. • Government documents and administrative records. • Corporate records from related entities or prede- cessors. Third parties must comply with production orders on penalty of fines, though they may assert privileges or raise objections on valid grounds. Privilege and Confidentiality Attorney–client privilege Communications between attorneys and clients are privileged under Brazilian law (Article 7, II, Law 8.906/1994 – Statute of the Brazilian Bar), extending to: • Expert reports from consultants. • Communications with third parties. • Documents prepared for litigation purposes. • Attorney work product and mental impressions. • Communications facilitating legal representation. Courts cannot order disclosure of privileged commu- nications. Evidence obtained in violation of privilege is inadmissible and cannot be used even if relevant. Attorneys may refuse to testify about client commu- nications. • Legal advice and opinions. • Case strategy discussions.
establish those facts. Electronic Discovery
Electronic documents and communications may be subject to production orders. Courts increasingly rec- ognise electronic evidence including emails, digital documents and spreadsheets, database information,
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