SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna, Virginia Jover and Carmen Serrano, López-Ibor DPM
5.4 Alternatives to Discovery Mechanisms See 5.1 Discovery and Civil Cases , 5.2 Discovery and Third Parties and 5.3 Discovery in This Juris- diction . 5.5 Legal Privilege In Spain, attorneys are legally, contractually and ethi- cally bound to keep the confidentiality of all informa- tion, facts and issues known to them due to their pro- fessional activity, and they cannot be compelled to testify about them. In fact, it is a criminal offence to disclose information that is subject to client-attorney legal privilege. In Spanish law, the GSSLP develops legal privilege. This includes all the facts, communications, data, information, documents and proposals that a lawyer has become aware of, issued or received in their pro- fessional practice. The lawyer must also maintain this duty of confidentiality among their collaborators and associates. Legal privilege continues even after the attorney’s services to the client have ceased, without being limited in time. 5.6 Rules Disallowing Disclosure of a Document A party is obliged to disclose a requested document if required to do so by the court. According to Section 261 of the SCPA, if the summoned party fails to com- ply with the request and does not provide convincing arguments for not complying, the court can: • consider the fact to be proved by the requested document as having been admitted; or • issue an order to enter and search the premises of the non-compliant party. If the required documents are found during the entry and search, the court will put them at the disposal of the applicant at the court premises. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief The competent court to deal with applications for injunctive relief is the first instance court of the domi- cile of the defendant or the court where the main claim
is going to be heard. If the relief is intended to protect a foreign action, the competent court is the court of the place where the assets are located or of the place where the relief must have an effect. Section 726 of the SCPA determines that the court may order an injunctive relief: • when it is exclusively aimed at guaranteeing the effectiveness of the judicial protection that may be granted in a potential judgment, to ensure that it cannot be prevented or hampered by any situation that occurs while the relevant proceedings are still pending; and • when it cannot be replaced by another measure that is equally effective for the purposes of the pre- ceding paragraph but less burdensome or damag- ing for the defendant. Section 727 of the SCPA sets out specific reliefs that may be requested by any plaintiff, for example: • freezing of assets; • judicial intervention of productive assets; • deposit of movable assets; • preventative registrations in public registries; • judicial orders to provisionally cease any specific conduct; and • suspension of any corporate resolutions. This list is not exhaustive as Spanish law grants the opportunity to request any relief necessary to secure the potential enforcement of the future judgment. For the relief to be granted, the applicant for any injunctive relief has to meet the following three require- ments (Section 728 SCPA). • The petitioner has to provide good standing of its position (fumus boni iuris), with evidence of the asserted right or legal interest so that it appears to be plausible, eg, sufficient for it to be foreseeable so that the main decision will declare the right in favour of the party requesting the interim measure. This results in the need to ensure the effects of the interim measure by means of appropriate precau- tionary measures.
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