BRAZIL Law and Practice Contributed by: João Areosa, Guilherme Peres de Oliveira and Raphael Rangel, Areosa Advogados
Professional secrecy Other professionals have statutory secrecy obliga- tions that create privileges: • Physicians and healthcare providers: Medical infor- mation and patient communications are privileged. • Accountants: Client financial information may be privileged. • Psychologists and therapists: Treatment informa- tion is privileged. • Journalists: Source protection privilege. • Religious advisers: Confession and spiritual guid- ance are privileged. These privileges may be invoked to resist produc- tion requests, though courts may require disclosure in limited circumstances when privilege is overcome by compelling need. Business secrets and confidential information Commercial and industrial secrets receive legal pro- tection (Article 195, Law 9.279/1996 – Industrial Prop- erty Law). When disclosure is necessary for litigation, courts may: • Order confidential treatment with access limited to attorneys, experts and the court. • Permit redaction of particularly sensitive informa- tion not necessary for the case. • Conduct in camera review to determine whether information must be disclosed. • Impose confidentiality obligations on persons accessing sensitive information. • Limit use of disclosed information to the specific litigation. Requests for confidentiality must specify the informa- tion to be protected and provide a concrete justifica- tion. Broad or unsupported assertions of confidential- ity are insufficient. Sanctions for Non-Compliance Failure to comply with production orders may result in: • Daily fines ( astreintes ) accruing until compliance. • Adverse inferences that facts the documents might prove are admitted.
• Reversal of burden of proof on issues the docu- ments address. • Contempt sanctions including higher fines. • In extreme cases, presumption that the opposing party’s allegations about the documents’ contents are true. These sanctions incentivise compliance while addressing situations where parties refuse production despite valid orders. Burden of Proof Generally, parties bear the burden of proving facts supporting their claims or defences (Article 373, CPC). Plaintiffs must prove facts establishing rights they assert; defendants must prove facts supporting defences or counterclaims. However, in consumer collective actions, courts may invert the burden of proof (Article 6, VIII, CDC) when: • The claim is plausible ( verossimilhança ) based on allegations and available evidence. • The consumer is hypervulnerable due to age, health, education or other factors. • Technical complexity makes proof unduly difficult for consumers while defendants have ready access to information. Burden inversion is a powerful tool addressing infor- mation asymmetries in consumer litigation. When the burden is inverted, the defendants must prove they did not cause harm rather than the consumers having to prove causation and fault. 3.11 Remedies Brazilian collective actions may seek diverse reme- dies, often combining multiple types in single actions. Injunctive Relief Prohibitory injunctions Prohibitory injunctions are orders requiring defendants to cease illegal conduct, for example: • Cease manufacturing or selling defective products. • Cease misleading or deceptive advertising. • Discontinue unfair commercial practices.
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