NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Emille Buziau, Marit Balkema and Daphne Beunk, Florent B.V.
• the requesting party must have a legitimate interest in obtaining the information; • it must concern specific documents (this includes pictures, audio and video tapes, computer files, etc), the existence of which has been established to a sufficient extent, which are defined at any rate in terms of sub- ject matter and persons involved (to prevent fishing expeditions) and which are situated in the domain of the respondent; and • these records must concern a legal relation- ship (eg, contractual or tort) to which the requesting party or its predecessor is a party. The documents must be relevant for the adju- dication of the dispute in the context of which the information was requested. The request for production of (copies of) documents may be refused pursuant to compelling reasons or if a proper administration of justice can be guaran- teed without furnishing the requested informa- tion. Under the Act on Modernisation of the Law of Evidence (see 14.1 Proposals for Dispute Resolution Reform ), Section 843a, DCCP will be adjusted and allocated in Sections 194–195a DCCP, primarily to align with case law (thus being codified). 5.4 Alternatives to Discovery Mechanisms Under the Dutch judicial system, parties must sufficiently substantiate and, where neces- sary, prove their positions whereby legal con- sequences are invoked (Section 150, DCCP). Providing evidence can take place by any legal means, including hearing witnesses, input from expert reports and the production of documents, whether or not obtained on the basis of an appli- cation for the production of exhibits (see 5.1 Dis- covery 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 and the same request (see 14.1 Proposals for Dispute Resolution Reform ). 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 pro- vide otherwise, lawyers are obliged to maintain confidentiality regarding everything that comes to their attention by virtue of their professional practice. This obligation also applies (in a deriva- tive form) to their employees and colleagues, as well as to other persons involved in the profes- sional practice, such as advisers who are directly instructed by the lawyer. Legal proceedings are regularly conducted with regard to the extent to which the latter may or may not maintain con- fidentiality. 5.6 Rules Disallowing Disclosure of a Document The request for the production of documents (exhibits) may be refused if there are compelling reasons not to provide them (see 5.3 Discovery in This Jurisdiction ), which may apply to trade secrets or certain confidential information. The party that has the documents at its disposal may propose to provide the documents to the judge only, to assess the nature of the documents first, or to blackline the sensitive parts in the docu- ments before providing them to the applicant. The judge will, on a case-by-case basis, balance the interests of the claimant against the interests of the refusing party and decide the way in which the documents, if any, are to be disclosed. Furthermore, a party in a “functional privileged” position, capacity or relationship bound by con- fidentiality (ie, medical professionals, religious leaders, lawyers and civil law notaries) may be
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