ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
4.6 Costs of Interim Applications/Motions Courts deal with the costs of an interim application/ motion filed before proceedings in the decision on the interim measure if (i) the measure is not granted or (ii) the measure is granted and it is not compulsory to initiate proceedings on the merits (please see 4.2 Early Judgment Applications ). The costs of interim applications/motions requested during the proceedings on the merits are awarded by the court in the final judgment. 4.7 Application/Motion Timeframe Courts generally deal with an application/motion with- in a period of one to six months, depending on the complexity of the case and on the number of hearings, if any, scheduled by the court. In more complex cases, a decision can take up to twelve months. Parties can (and usually do) request that the applica- tion/motion be dealt with on an urgent basis, however this urgency is only considered by the court in excep- tional cases. The concept of “discovery”, as a phase of pretrial procedure in a lawsuit in which each party can obtain evidence from other parties by means of methods of discovery (such as interrogatories, requests for pro- duction of documents and requests for admissions), is unknown to the Italian legal system. In Italian civil litigation, it is generally the responsibil- ity of each party to provide the evidence needed to substantiate their claims in court. However, Italian law accounts for situations where a party cannot indepen- dently procure necessary evidence, offering various mechanisms to address this issue, including orders for the disclosure of documents or other items. The Order of Disclosure The order of disclosure is the Italian legal concept that most closely resembles the concept of discovery in common law jurisdictions. The court, upon application 5. Discovery 5.1 Discovery and Civil Cases
by a party, may order the other party or a third party to exhibit in court a document or other thing deemed essential to the proceedings. If the party fails to comply with the order of disclosure without a valid reason, the court shall order it to pay a fine and may draw adverse inferences from their non- compliance. If a third party fails to comply with the order, the court shall order it to pay a fine. However, a third party has the right to contest the order by joining the proceedings. Except in cases where the order of disclosure is issued, the court may, on its own initiative, request information from the public administration regarding administrative acts or documents. The administration must reply within 60 days. Lastly, a special disclosure procedure is provided for in Legislative Decree No 3/2017 (implementing the European directive 2014/104/EU) regarding damages disputes in antitrust matters. 5.2 Discovery and Third Parties Please see 5.1 Discovery and Civil Cases . 5.3 Discovery in This Jurisdiction Please see 5.1 Discovery and Civil Cases . 5.4 Alternatives to Discovery Mechanisms In the Italian legal system, the regulation of evidence is set out in both the Civil Code, which provides for general rules on evidence, and the Code of Civil Pro- cedure, which provides for the court’s powers over the evidence, and the methods for acquiring evidence during proceedings. The Principle of “Burden of Proof” According to the general rule, a party asserting a right in court must provide evidence to substantiate the facts on which the claim is based. Similarly, a party opposing the claim by asserting the ineffectiveness, modification, or extinguishment of the right bears the responsibility of proving the facts underlying their defence. This principle, known as the “burden of proof”, is codi- fied in Article 2697 of the Civil Code. It applies only
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