ROMANIA Law and Practice Contributed by: Cosmin Vasile and Alina Tugearu, Zamfirescu Racoți Vasile & Partners Attorneys At Law
5. Discovery 5.1 Discovery and Civil Cases
• leads to a criminal investigation of the party, its spouse or a third degree relative. The court alone checks if one of the cases mentioned above is applicable, after studying the respective doc- ument. Refusal to submit ordered documents may be interpreted in some cases as an acknowledgement of the contents of those documents. 5.4 Alternatives to Discovery Mechanisms In Romanian civil trials, as a rule, all evidence is man- aged by and through the court. It is the court that allows for different types of evidence to be submit- ted, at the parties’ request. All exchanges of written evidence between the parties will be done only after the commencement of the trial. Witness statements are given orally before the judge. Each of the parties has the right to address questions to the witness. The answers to these questions and the statement are written down by the court clerk and signed by the witness. The document thus drafted is attached to the file as a witness statement. On the other hand, experts give primarily written evi- dence, in the form of an expert report that is submitted to the file. However, if the judge requires additional information, the expert may be called before the court for an oral statement of clarification. The rule is that all evidence is presented directly in front of the judge and not by intermediary means. As an exception, after being admitted by the court, the administering of evidence might be conducted between lawyers or legal counsel if both parties agree to do so. However, in practice, this procedure is hardly ever used. 5.5 Legal Privilege Attorney-client communications and information received by an attorney fall under the attorney’s obli- gation of confidentiality. The extent of the obligation may vary depending on the agreement of the parties, but a general obligation of confidentiality is applicable to all attorneys, regardless of whether they are exter- nal or in-house counsel.
In Romania, discovery is limited to the production of documents, and does not cover the testimony of wit- nesses. The Romanian civil procedure rules provide for a specific process that enables the court to order the production of documents from the parties if certain conditions are met. The court administers the discov- ery of documents. Therefore, when a party claims that the opposing party holds a document relating to the dispute, the court may order its discovery. There are no mechanisms by way of which the scope and/or costs of the discovery process can be curbed. 5.2 Discovery and Third Parties If one of the parties indicates that a document that is useful for the settlement of the dispute is held by a third party, the court may summon the third par- ty, ordering it to disclose the mentioned document. Failure to comply with the court’s order may lead to an order for the payment of a fine. However, public authorities and public institutions may decline to dis- close a document when it relates to national safety, When a party claims that the opposing party holds a document relating to the dispute, the court may order its discovery. The request for discovery cannot be rejected if: • the document is a joint document of the parties; • the opposing party itself has referred to the docu- ment in the proceedings; or • the party is obliged to submit it, according to the law. As a rule, if the court orders disclosure of a docu- ment, the parties must obey. However, the court will not order disclosure of a document that: • contains strictly personal information regarding a person’s dignity or private life; • breaches a legal confidentiality obligation; and/or public safety or diplomatic relations. 5.3 Discovery in This Jurisdiction
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