PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes and Petra Carreira, PLMJ
5.3 Discovery in This Jurisdiction There is no discovery process in Portuguese law. 5.4 Alternatives to Discovery Mechanisms The general rule in civil proceedings is that each party bears the burden of alleging and proving the facts on which the claim or the defence is based. Any facts not objected to by the oppos- ing party will be deemed to be admitted and therefore proved. Thus, only disputed facts will be subject to evidence. As a rule, all evidence should be presented by the parties with their pleadings. After this point, the appropriate time to submit documents and other evidence or to change the evidence sub- mitted is the pre-trial hearing. Up to 20 days before the trial, the parties can amend their list of witnesses. If so, the opposing party will have five days to exercise the same option. Witnesses who are named by the parties at this point will have to be brought by the par- ties to the trial, as they will not be summoned by the court. In practice, if these witnesses fail to appear at the trial, no new date will be scheduled for their examination. Furthermore, up to 20 days before the trial, the parties can file additional documents upon the payment of a procedural fine, unless they dem- onstrate they were unable to do so by that time. After that point and during the trial, the parties will only be allowed to file documents that they could not have submitted earlier, and which have become necessary as a result of a subsequent event, at the court’s discretion. Witness evidence and expert testimony are giv- en at the trial. Portuguese law provides for the possibility of written testimonies by witnesses
under certain circumstances, but this is seldom the case. Reports by legal counsel, academics or other experts may be put forward at any time during the proceedings, until the first instance judgment is issued. 5.5 Legal Privilege Lawyers are subject to attorney-client privilege under the Rules of the Portuguese Bar Asso- ciation. Attorney-client privilege covers all facts, documents or information concerning profes- sional matters that are made available by the client to the lawyer in the exercise of their pro- fessional duties. Any facts, documents or information obtained in breach of attorney-client privilege will not be admitted as evidence in court proceedings. Correspondence and documents exchanged between lawyers and their clients cannot be seized by the court unless they relate to a crimi- nal offence in proceedings where the counsel is a defendant. In-house counsel are also subject to attorney- client privilege, provided they are registered with the Portuguese Bar Association and practise as lawyers. 5.6 Rules Disallowing Disclosure of a Document Under Portuguese law, all persons are under a duty to co-operate with the court in discovering the truth. This includes the duty to provide what- ever documents or information are requested by the court. However, the persons concerned may refuse to comply with the order of the court if it entails:
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