BRAZIL Trends and Developments Contributed by: Lucas Akel Filgueiras, Giovana Bosso and Caroline Cidri, Akel Advogados
Akel Advogados Alameda Jaú, 1905 – Cjs. 42/43 Jardim Paulista - São Paulo CEP 01420-007 Brazil Tel: +55 (11) 5200 0388 Email: contato@akeladvogados.com.br Web: www.akeladvogados.com.br
The Action for Pre-suit Discovery Production as an Instrument in High-Stakes Litigation The 2015 reform of the Brazilian Code of Civil Procedure brought significant changes to pro- cedural rules and the types of actions that can be filed in the country. One of the most note- worthy changes in the context of litigation was, unquestionably, the restructuring of the action for pre-suit discovery production. Modified with the aim of promoting settlements and alternative dispute resolution, thereby reducing the number of cases filed, the action for pre-suit discovery production has taken on the role of a “Brazilian-style discovery”, becom- ing central to high-profile litigation in the country. The Action for Pre-suit Discovery Production in the 1973 Code of Civil Procedure In the 1973 Code of Civil Procedure, which was repealed by the 2015 Code of Civil Procedure, the action for pre-suit discovery production was treated as a type of action for an interim order aimed at ensuring the production of certain evi- dence in advance when there were sufficient grounds to demonstrate a risk of spoliation, making it impractical to wait for the evidential phase of a potential underlying lawsuit in which the evidence would have been relevant without risking the spoliation of evidence.
In this context, Article 846 of the 2015 Code of Civil Procedure provided that such an action could have as its objective: • the deposition and examination of a party; • the deposition and examination of witnesses; or • an expert witness report. Once the evidence was produced in advance, the party was required to file the main action within 30 days. The Action for Pre-suit Discovery Production in the 2015 Code of Civil Procedure The 2015 Code of Civil Procedure was designed not only to modernise procedural practices in the country but also to implement mechanisms to reduce case overload, such as discouraging litigation by increasing associated costs, as well as promoting settlements between parties and utilising different means of alternative dispute resolution. Notably, right in Chapter I (Fundamental Norms of Civil Procedure), after reaffirming the consti- tutional principle of access to justice in Article 3, Article 3(3) establishes that: “Conciliation, mediation, and other methods of consensual conflict resolution must be encouraged by judg-
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