SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna, Virginia Jover and Pedro Echeguren, Lopez-Ibor DPM
4.5 Applications for Security for Defendant’s Costs
legal competency required to be known for the case, or to exhibit the documents proving such capacity, representation or legal compe- tence; • an application against the future defendant to exhibit the object in their possession that will be referred to at the hearing; and • an application by a partner or joint owner for the exhibition of documents and accounts of the company or condominium. Additionally, since the implementation of Direc- tive 2014/104/EU, the SCPA regulates a specific proceeding regarding the disclosure of evidence in order to bring legal actions for damages aris- ing from infringements of competition law. The Spanish courts will not allow fishing expedi- tions and will only accept precise and justified requests for particular documents. The party that requests the preliminary injunc- tion will bear the costs incurred by the individu- als who participated in the referred proceeding, as well as any damages that may arise while executing the measure. A party may request the other party to exhibit certain documents that the petitioner does not have, as long as these documents refer to the subject matter of the pro- ceedings or the effectiveness of other means of evidence. This petition may be requested before filing the complaint or at a later stage, during the evidentiary phase. If the petition is filed at the evidentiary phase, the petitioner must provide a copy of the docu- ments. This is why the party has to provide secu- rity when filing the preliminary injunction.
The possibility of either party requesting an order that the counterparty be compelled to pay a security for the former’s costs is not contem- plated in Spanish law. 4.6 Costs of Interim Applications/ Motions As a general rule, and unless the case presents legal or factual doubts, the party whose position is dismissed shall be ordered to pay the coun- terparty’s legal costs in the interim applications. 4.7 Application/Motion Timeframe No estimate can be provided of the timeframe for a court to deal with an application, since it will mainly depend on the workload of the court and the complexity of the case. 5. Discovery 5.1 Discovery and Civil Cases The Spanish legal system does not provide for discovery. If the petitioned party refuses to exhibit a docu- ment, the court may give evidentiary value to the copy provided by the petitioner, or to the version of the document’s content given by the petition- er, which will be assessed jointly with the other available evidence. Alternatively, the court may issue a court order so that the requested docu- ments are included in the file of the proceedings. Nevertheless, this injunction is limited to specific cases, for instance: • an application against the future defendant to declare under oath or promise to tell the truth concerning their capacity, representation or
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