SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna, Virginia Jover and Carmen Serrano, López-Ibor DPM
4.5 Applications for Security for Defendant’s Costs The possibility of either party requesting an order that the counterparty be compelled to pay a security for the former’s costs is not provided for in Spanish law. 4.6 Costs of Interim Applications/Motions As a general rule, and unless the case presents legal or factual doubts, the party whose position is dismissed shall be ordered to pay the counterparty’s legal costs in the interim applications. 4.7 Application/Motion Timeframe No estimate can be provided of the timeframe for a court to deal with an application, since it will mainly depend on the workload of the court and the com- plexity of the case. 5. Discovery 5.1 Discovery and Civil Cases The Spanish legal system does not provide for dis- covery. If the petitioned party refuses to exhibit a document, the court may give evidentiary value to the copy pro- vided by the petitioner, or to the version of the docu- ment’s content given by the petitioner, which will be assessed jointly with the other available evidence. Alternatively, the court may issue a court order so that the requested documents are included in the file of the proceedings. Nevertheless, this injunction is limited to specific cas- es, for instance: • an application against the future defendant to declare under oath or promise to tell the truth concerning their capacity, representation or legal competence required for the case, or to produce the documents proving such capacity, representa- tion or legal competence; • an application against the future defendant to exhibit the object in their possession that will be referred to at the hearing; and
• an application by a partner or joint owner for the exhibition of documents and accounts of the com- pany or condominium. Additionally, since the implementation of Directive 2014/104/EU, the SCPA provides for a specific pro- cedure regarding the disclosure of evidence in order to support legal actions for damages arising from infringements of competition law. The Spanish courts will not allow fishing expeditions and will only accept precise and justified requests for particular documents. The party that requests the preliminary injunction will bear the costs incurred by the individuals who par- ticipated in the referred proceeding, as well as any damages that may arise while executing the measure. A party may request the other party to produce certain documents that the petitioner does not have, as long as these documents refer to the subject matter of the proceedings or the effectiveness of other means of evidence. This request may be made before filing the complaint or at a later stage, during the evidentiary phase. If the request is made at the evidentiary phase, the petitioner must provide a copy of the documents. For this reason, the party has to provide a security deposit
when filing the preliminary injunction. 5.2 Discovery and Third Parties
The provision of documents and other pieces of evidence can also be requested from third parties
(including the public administration). 5.3 Discovery in This Jurisdiction
As mentioned at 5.1 Discovery and Civil Cases , dis - covery is not allowed in the Spanish legal system. However, it is possible to ask for documents or infor- mation in order to prepare for the trial (see 5.1 Dis- covery and Civil Cases and 5.2 Discovery and Third Parties ). The parties are not obliged to disclose documents that have not been requested by the other party and admitted by the court in an injunction proceeding or proposed and admitted during the evidentiary hearing.
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