AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
5. Discovery 5.1 Discovery and Civil Cases No Pre-trial Discovery
In practice, however, such orders are rarely issued against third parties. 5.3 Discovery in This Jurisdiction There are no pre-trial discovery proceedings. Tak- ing evidence is considered a sovereign task of the court and is conducted exclusively by the court at the request of the parties. 5.4 Alternatives to Discovery Mechanisms Order for Document Production In civil proceedings, a party may be ordered by the court to produce evidence at its disposal upon request by the other party or even without such a request (this rarely occurs). The prerequisites for an order to produce documents upon request are that: • the requesting party can present plausible reasons for the allegation that the document is in the pos- session of the other party; • the requesting party either provides a copy of the document it is requesting (to be produced in the original) or can accurately and fully describe the content of the document (it is not permissible to request a category of documents); and • the requesting party must state which facts it expects to prove with the requested document. Criminal Investigation If there is a suspicion of criminal misconduct, pretrial discovery may also be pursued through the initiation of a criminal investigation. Evidence, particularly in the form of documents obtained by the criminal authori- ties (eg, through house searches), may be obtained for use in civil proceedings. Any (potential) victim of a criminal offence as well as third parties with qualified legal interest may be granted access to the contents of a criminal file. 5.5 Legal Privilege Austria recognises the concept of legal privilege. Members of legal professions, particularly attorneys- at-law, must refuse to testify with respect to any one of their mandates before any authority unless released by their client. Neither the party nor its counsel can be forced to produce client-attorney work product. No
There is no pre-trial discovery in Austria. Evidence can be secured in specific circumstances, but otherwise production of documents and taking evidence takes place within the actual court proceedings. Document Production in the Proceedings In civil proceedings, a party may be ordered by the court to produce evidence at its disposal if the court considers such evidence material, on the court’s own initiative (this rarely occurs) or upon request by the other party. If a party does not comply with such a court order, there is no enforcement available. The court will con- sider the refusal in its assessment of evidence, and adverse inferences may be drawn by the court as finder-of-fact. A party may, in the proceedings, request the court to order a third party to provide a copy of a specific document if: • substantive law requires the third party to produce the document; or • the document may be of joint use to the parties (as in the case of a written contract). The requesting party must: • present plausible reasons for believing that the document is in the possession of the third party; and • accurately describe the contents of the document. Enforcement In contrast to the document production order addressed to a party, the production obligation of a third party is given rise through an enforceable court order. The court may impose a fine for non-compli- ance. Ultimately, contempt of court findings may even lead to imprisonment for a period of up to two months. 5.2 Discovery and Third Parties Prerequisites to Order a Third Party
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