NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
As part of the evidence-gathering regime, Section 22 DCCP stipulates that the court may, at any stage of the proceedings and in any instance, order one or both of the parties to clarify specific allegations or to produce certain documents or information relevant to the case. If a party refuses to produce the requested documents without compelling reasons such as con- fidentiality, the court may draw adverse inferences. This may include a strengthened obligation to state reasons ( verzwaarde motiveringsplicht ), reversal of the burden of proof ( omkering van de bewijslast ) and a presumption in favour of the claimant’s allegations. 5.2 Discovery and Third Parties Requests for the production or inspection of docu- ments ( inzageverzoeken ) may also be directed at third parties. Such a request can be made if the third party possesses documents or data that are relevant to clarifying the facts underlying a legal relationship between the parties. Both the counterparty and the third party are obliged to co-operate, unless a statu- tory exception applies (for example, legal privilege, compelling reasons, or protection of privacy and trade secrets). If a third party or counterparty fails to comply voluntar- ily, the requesting party may apply to the court for an order to produce or allow inspection as a provisional evidence measure under Sections 194–195a DCCP. 5.3 Discovery in This Jurisdiction Under the new Act on Evidence, the former Section 843a DCCP has been replaced by Sections 194–195a DCCP, introducing a unified regime for inspection and production of documents or data as part of the broad- er framework for provisional evidence measures. A request for inspection or production of documents or data will be granted only if the following cumulative requirements are met: • sufficient interest ( voldoende belang ) – the request- ing party must demonstrate that obtaining the requested information is relevant and necessary for the fair resolution of the dispute or for substantiat- ing its legal position; • specific identification – the request must concern clearly defined documents or data (such as cor-
respondence, recordings, electronic files, or other records) the existence of which is sufficiently established and which are described in terms of their subject matter and persons involved (thereby preventing so-called fishing expeditions), and which are situated within the domain or control of the respondent; • connection to a legal relationship – the docu- ments or data must relate to a legal relationship (for example, contractual or tortious) in which the requesting party or its predecessor is involved; and • the new Act on Evidence introduces an “access, unless” system, meaning that the request for inspection and production of documents must in principle be granted if a party has a sufficient interest (replacing the old “legitimate interest”), unless a statutory exception applies or if a proper administration of justice can be guaranteed without providing the requested information. 5.4 Alternatives to Discovery Mechanisms Under the Dutch judicial system, parties must suffi- ciently substantiate and, where necessary, prove their positions whereby legal consequences are invoked (Section 150, DCCP). Providing evidence can take place by any legal means, including hearing witness- es, input from expert reports and the production or inspection of documents or data, and site inspections or other investigative measures ordered by the court, whether or not obtained on the basis of an applica- tion for the production of exhibits (see 5.1 Discovery and Civil Cases ). The evidentiary value of evidence is further illuminated in 7. Trials and Hearings . From 1 January 2025, a variety of methods of evidence-taking can be bundled into one request. 5.5 Legal Privilege Legal professional privilege applies to every lawyer who is a member of the Netherlands Bar Association. Insofar as the law does not provide otherwise, lawyers are obliged to maintain confidentiality regarding eve- rything that comes to their attention by virtue of their professional practice. This obligation also applies (in a derivative form) to their employees and colleagues, as well as to other persons involved in the professional practice, such as advisers who are directly instructed by the lawyer. Legal proceedings are regularly con-
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