BRAZIL Law and Practice Contributed by: Arthur Villamil and Yuri Luna Dias, Villamil Advogados
may lead to the judge accepting the requesting party’s assertions as true. If the evidence is held by a third party, the judge will arrange for the third party to be notified and will assess the necessity of the evidence’s production. 5.2 Discovery and Third Parties It is possible to obtain evidence from a third party not directly involved as a plaintiff or defendant in a case. The court may order a third party to produce docu- ments or provide evidence if it is considered neces- sary for resolving the dispute. Conditions for Third-Party Discovery Court authorisation required A party to the lawsuit must request the judge’s author- isation to obtain evidence from a third party. The request must specify the documents or information sought and demonstrate their relevance and neces- Unlike broader discovery practices in common law systems, Brazilian courts require that the request be specific and directly related to the matters in dispute. This avoids general or overly broad demands. Third-party rights The rights of third parties are protected during this process. A third party can object to a request for evi- dence on grounds such as privacy, confidentiality, or irrelevance. The judge will weigh these concerns against the need for the evidence in the case. Examples of Third-Party Discovery Financial records Courts can order banks or financial institutions to pro- vide records relevant to a dispute. Business records In cases involving contractual or business disputes, third-party companies may be required to produce documents or contracts relevant to the matter. Expert evidence Third parties, such as technical experts or service pro- viders, may be called upon to provide reports or clari- sity to the case. Limited scope
fications necessary to understand complex aspects of a case. 5.3 Discovery in This Jurisdiction In Brazilian civil procedure, the concept of discovery is more limited and formalised compared to common law jurisdictions. The process is highly regulated and overseen by the court, with parties bearing the prima- ry responsibility for producing evidence that supports their claims or defences. Discovery is narrower, and extensive pre-trial evi- dence gathering, like depositions, is not typical. Par- ties must instead submit relevant evidence along with their initial pleadings, such as contracts or documents supporting their arguments. Judges play an active role in the evidence process, with the authority to order the production of specific documents or deny requests that are deemed irrelevant. This ensures the focus remains on evidence directly related to the dispute. Parties can request specific documents from the opposing party, but these requests must clearly iden- tify the documents and demonstrate their relevance to the case. The court decides whether to grant these requests. Judges may order parties or third parties to produce documents critical to resolving the case, but this is generally limited to essential evidence. Parties are expected to disclose necessary evidence and act in good faith. Non-compliance can result in sanctions or adverse inferences. Certain documents, such as attorney-client communications or trade secrets, may be protected from disclosure if they are not directly relevant to the dispute. 5.4 Alternatives to Discovery Mechanisms The traditional discovery mechanisms are not avail- able, so evidence is generally developed and admitted through a court-controlled process called evidence production, with the judge playing a central role in managing evidence to ensure that only relevant and necessary information is included. Evidence gathering involves several steps. Parties may present documents or request specific docu- ments from the opposing side or third parties, but
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