BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell, Marcelo Lucidi and Mayara Rahman Rufino, Duarte Forssell Advogados
• land registry – holds information on real prop - erty ownership; • registry of vehicles – holds information on vehicle ownership; • commercial registry (trade board) – holds information on share ownership; and • aircraft registry – holds information on aircraft ownership. In the Brazilian legal system, parties have an independent right to obtain evidence regard - less of a previous legal proceeding. Such right can be initiated through a standalone proceed - ing known as the Early Production of Evidence (Article 381 of the Civil Procedure Code). This procedure aims to preserve evidence in various circumstances: 2.2 Preserving Evidence Early Production of Evidence • there is a substantiated risk that it could become impossible or very hard to verify certain facts after filing the lawsuit; • such evidence might enable the parties to settle the case or reach some other solution to the dispute; • the prior knowledge of such facts will have a bearing on whether or not a suit needs to be filed; and/or • the party needs to justify the existence of a fact or legal relationship for documentation purposes. Precautionary Measures In addition, under Articles 300 and 301 of the Civil Procedure Code, a party may petition the court for a preliminary injunction to preserve evi - dence if it can demonstrate both the likelihood of success of its claims and the risk of losses where the evidence is not produced as request - ed. This measure allows for the preservation of specific types of evidence, such as documents
or other tangible items, that are believed to be in the defendant’s possession. To support the request for a preliminary injunc - tion, the applicant must specifically describe the evidence sought and provide sufficient jus - tification for the belief that it is in the defend - ant’s possession. This may include presenting relevant facts or circumstances that indicate the likelihood of the evidence being within the defendant’s control. The judge will review the grounds of the request and assess whether the evidence sought should be preserved through a preliminary injunction. Factors considered may include the likelihood of success of the claims, the potential harm to the claimant if the evidence is not preserved, and any other relevant circumstances of the case. Other Considerations In Brazil, the plaintiff is not permitted to conduct a physical search of documents at the defend - ant’s residence or place of business. However, the claimant may petition the court for a judicial order authorising a judicial bailiff to conduct the search and seizure if the need to preserve the evidence is proven. Any court authorisation for the use of police force should be motivated and preceded by a demonstration of the necessity and appropriate - ness of the measure. Factors such as the impor - tance of the evidence, the potential harm if it is not preserved, and the availability of alternative means of obtaining the evidence may be consid - ered in assessing the request. In preserving evidence proceedings, as a gen - eral rule no cross-undertaking in damages is required.
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