POLAND Law and Practice Contributed by: Rafał Waszkiewicz and Bartosz Pyzder, Sołtysiński Kawecki & Szlęzak
5.2 Discovery and Third Parties It is possible to obtain limited discovery from a third party not named as a claimant or defend- ant. As a general rule, everyone is obliged to pro- duce, if the court so orders, a document in their possession. See 5.1 Discovery and Civil Cases . 5.3 Discovery in This Jurisdiction The court may order a party or a third person to provide a document if it considers that the document is evidence of a fact essential to the outcome of the case. Everyone is obliged to pro- vide, if the court so orders, a document in their possession. However, Polish law does not pro- vide any examples of the documents that must be disclosed and it is at the discretion of the court to make this decision. When the court deems it necessary to review the original of an official copy of a document, it may order that it be delivered at the hearing or reviewed on the spot by the designated judge or by the whole court. 5.4 Alternatives to Discovery Mechanisms The burden of proving a fact lies with the person who derives legal consequences from that fact. The parties provide evidence to support their claims. Only if the party does not possess the document supporting the claim may it request that the court orders another person to provide (discover) the evidence. See 5.1 Discovery and Civil Cases . Moreover, if the document is held in the adminis- trative files, the parties can request that the court summons the administrative body to provide the document or a certified copy of it.
5.5 Legal Privilege Professional privilege covers the right to refuse to answer a question as a witness. However, a person ordered to provide a document may object to it if such person is entitled to refuse to testify as a witness on the facts covered by a document or if a person holds a document on behalf of a third party who could refuse to testify for the same reasons. Professional privileges apply only to licensed attorneys-at-law, legal counsels, patent attor- neys and tax advisors. 5.6 Rules Disallowing Disclosure of a Document The holder of the document may be discharged from providing it: • when the document contains classified infor- mation subject to protection; or • when they could, as a witness, refuse to testify as to the circumstances covered by the document. However, providing a document may not be refused where the holder of the document or a third party is under an obligation to provide it in respect of at least one of the parties, or where the document is issued in the interest of a party who demands the taking of evidence. Moreover, the possibility of avoiding the produc- tion of evidence is limited in discovery proce- dures applying in proceedings regarding damag- es caused by the breach of competition law and in proceedings regarding intellectual property.
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