BRAZIL Trends and Developments Contributed by: Lucas Akel Filgueiras, Giovana Bosso and Caroline Cidri, Akel Advogados
es, lawyers, public defenders, and members of the Public Prosecutor’s Office, even during the course of judicial proceedings.” Seemingly driven by this goal, the legislator introduced significant changes to the rules gov- erning the action for pre-suit discovery produc- tion. These changes mean it will no longer be qualified as a precautionary measure but as an autonomous action instead, independent from the subsequent filing of a “main action”, and including two scenarios in which it can be invoked without requiring proof of a risk of spo- liation of evidence. Under the current rules set out in Article 381 of the 2015 Code of Civil Procedure, the action for pre-suit discovery production may be filed in three situations, specifically when: • there is reasonable apprehension that verify- ing certain facts may become impossible or very difficult while the lawsuit is pending; • the evidence to be produced may facilitate a settlement or another appropriate means of conflict resolution; and • prior knowledge of the facts may justify or prevent the filing of an action. In this new framework, while the scenario that there is reasonable apprehension that verifying certain facts may become impossible or very difficult while the lawsuit is pending has been retained, it has been expanded with restrictions on the types of evidence that may be produced lifted. In terms of the other two scenarios mentioned above, significant innovations have been intro- duced to allow an action for discovery produc- tion to be filed on the grounds that the evidence sought may facilitate conflict resolution or even
deter or strengthen a potential action on the merits. The intention is therefore clear. On one hand, the intention is to reduce the number of actions on the merits filed in courts, and on the other, to ensure that cases genuinely requiring judicial intervention are as robust as possible, having already undergone an initial screening of the supporting “evidence”. Despite notable differences in terms of proce- dure and limits on claims to be addressed, this change is inspired by the American legal concept of discovery, which, by imposing a preliminary obligation on parties to disclose the evidence they hold regarding a potential dispute without a judge’s involvement (or with minimal involve- ment), purportedly allows parties involved in a dispute to better understand their chances of success and thereby more thoughtfully consider the scope of a possible settlement, avoiding the need for a trial. The Evolution of the Action for Pre-suit Discovery Production Since 2015 The regime established in the 2015 Code of Civil Procedure intended to give the action for pre- suit discovery production the guise of a “non- contentious jurisdiction” procedure, where there is no dispute, no point of contention between the parties involved, and the judiciary is only responsible for ratifying the result produced in the process based on the collaborative action of those involved. Evidence of this purpose can be found in Arti- cle 382(4), which states: “In this procedure, no defence or appeal will be admitted, except against a decision that totally rejects the pro- duction of evidence requested by the original plaintiff”, as well as Article 382(2), which states
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