BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá, Bermudes Advogados
5.6 Documentation and Evidence Preservation Keeping a Proper Registry of Documents, Demands and Responses An important aspect of an efficient response to a crisis is organisation and maintaining a registry. Companies usually engage external consultants to assist with the following. • Collecting and preserving internal data on the issue related to the crisis, which will be necessary: (a) for responding to requests for information from the authorities; (b) in the case of eventual future litigation abroad (should those be brought), in jurisdictions where there are discovery/ disclosure obligations; (c) for understanding the origin/relevant as- pects that led to the crisis; and (d) for developing an adequate strategy for responding to corresponding legal demands, enquiries, investigations and judicial/arbitral proceedings. • Receiving, registering and co-ordinating the response to demands received from third par- ties – ie: (a) requests for information by individuals/ other companies directly affected or from public authorities; and (b) processing and addressing demands for material measures to mitigate/repair the impacts of the crisis on these third par- ties. 5.7 Settlements There are several potential avenues for settle- ment agreements to deal with the legal conse- quences of a crisis. Which of these alternatives is most advisable will depend on the circum- stances of each crisis, including on which stake- holders are involved and the nature of the conse-
quence that the company intends to cover with the agreement. Agreement With Public Authorities for Civil Liability Given that Brazil has a highly contentious legal system, reaching a comprehensive and robust agreement that deals with the civil implications of the crisis with the relevant authorities is the most advisable route for reducing litigation and for business continuity. The civil agreement can (and should) include eventual environmental, social and financial collective and diffuse dam- ages arising from it to third parties and affected areas, as well as alternatives (recognised as legitimate by the signatory parties) for indemnifi- cation of damages caused to individuals (whose rights can be represented in court by the justice institutions but are not transferred to them for release purposes)/other companies. When considering an agreement, the company should identify all relevant authorities for the legal implications that the agreement intends to address. As there is overlap in the authori- ties’ competences, leaving one of them out of the agreement could undermine the efforts to diminish litigation and lead to attempts to have the agreement re-opened or used as a basis for the indemnification/reparation measures it con- templates. Particularly for justice institutions, it is advisable to directly involve the highest lev- els of their respective ranks, to mitigate deviat- ing measures from their members due to their inherent autonomy, which can perpetuate litiga- tion and/or undermine efforts to implement the agreement. A potential agreement should also be as broad (on its subject matter) and clear and definitive (on its provisions) as possible, to mitigate future (re) discussions of its completeness and adequacy.
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