NORWAY Law and Practice Contributed by: Christian Reusch, Jenny Sandvig, Oda Lauksund Engamo and Therese Sætre Løfsgaard, Advokatfirmaet Simonsen Vogt Wiig
Regarding witnesses, the general rule is that anyone who has something to explain of importance to the case is obliged to give a witness testimony, provided it is likely that the person has something relevant to explain. If this requirement is met, the person can be ordered to give a witness testimony. There are excep- tions to this rule. Claims for access to evidence are normally submitted in a pleading. The opposing party will then produce the evidence if they agree that the claim is in accord- ance with the rules. If the parties disagree on whether there is an obligation to present evidence, the court must decide. 5.2 Discovery and Third Parties As discovery in the traditional Anglo-American sense is not available in civil cases, it is also not possible to obtain discovery from a third party that is not named as claimant or defendant. However, a third party has a similar obligation as the parties to produce evidence that may constitute evidence in the case. The obligation for third parties is normally enforceable for the party that has demanded the evidence to be produced. 5.3 Discovery in This Jurisdiction The general approach to discovery in Norway is that there should be a broad right to require the opposing party to produce evidence that could be of importance to the case. However, there is also a general view that this must be proportional and balanced against other considerations. This is a part of the rationale for why traditional “discovery” is not permitted under Norwe- gian law. The rules are generally not very detailed. For example, there are no rules requiring the parties to disclose spe- cific documents. In principle, all requests to produce evidence shall be complied with, unless the demand is covered by exceptions. 5.4 Alternatives to Discovery Mechanisms The legal system in Norway does not provide for dis- covery in the traditional Anglo-American sense, but does provide for other discovery mechanisms. These mechanisms (described in more detail elsewhere in
this chapter) are sufficient to obtain evidence that is of importance to the case. 5.5 Legal Privilege Norwegian law recognises the concept of legal privi- lege. This is one of the exceptions to the general obli- gation to provide evidence that is relevant to the case. The courts are not allowed to receive evidence from lawyers regarding anything entrusted to them in their position as counsel. An exception to the general rule is made if the person entitled to confidentiality consents to the sharing of evidence covered by attorney-client privilege. The ban applies to both in-house and external law- yers. The decisive factor for the scope of the provi- sion is whether the lawyer performs work for a client or for a company in which they are employed, and the employment is of such a nature that it must be regarded as legal practice. 5.6 Rules Disallowing Disclosure of a Document In addition to the rule that evidence covered by attor- ney-client privilege does not need to be shared, there are also other rules that allow a party to not disclose a document. The rules apply to the following evidence/ information: • information of importance to the security of the kingdom or relations with foreign states; • discussions in government conferences; • information that is subject to statutory confidential- ity; • information that is subject to a statutory duty of confidentiality for guardians; • court proceedings and court decisions; • evidence related to trust in special professionals; • evidence about reputation and credibility; • evidence obtained improperly; • exemptions for close relatives for information pro- vided by the party; • incriminating personal data; • evidence concerning trade secrets; and • mass media (source protection).
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