BRAZIL Trends and Developments Contributed by: Lucas Akel Filgueiras, Giovana Bosso and Caroline Cidri, Akel Advogados
that: “The judge will not rule on the occurrence or non-occurrence of the fact, nor on the respec- tive legal consequences.” In this context, the courts initially took the view that in an action for pre-suit discovery produc- tion, the judgment should merely ratify the evi- dence produced, and there would be no award of attorney’s fees to any of the parties since it is not litigation as such and there would be no sense in labelling parties as winners or losers. Practice, however, has shaped actions of this nature in an apparently different way to that intended by the legislator and first recognised by the courts. In light of its characteristics, the action for pre- suit discovery production has become a rele- vant mechanism for large-scale litigation, to the extent that agents have identified advantages capable of justifying the filing of these actions, either prior to or concurrently with actions of a definitive nature, in order to resolve a specific dispute. The first major advantage of the action for pre- suit discovery production is its cost. By being able to assign a lower value to the dispute than the amount being discussed, such as damages or compensation of any kind, measures of this nature have been deemed as a way of strength- ening legal positions, avoiding the greater finan- cial expense usually associated with an action on the merits. A second advantage perceived by the parties is risk mitigation. When filing an action for pre-suit discovery production, the merits of a particular claim are not yet being discussed, so the evi- dence related to the case can be explored with-
out the risk of definitive decisions that may be contrary to the party’s interests. A third advantage is speed. As these are actions with an objective purpose, which is to produce particular evidence without entering into discus- sions about the final claim, which is merely the backdrop for the evidential claim,these actions tend to be processed more quickly than those under the standard procedure, so that the intended result (the production of the evidence being sought)is usually achieved more quickly. A fourth advantage, and somewhat linked to speed, stems from the limitations set by the legislator on the presentation of defences and appeals, in the latter case relativised when there is a complete rejection of the production of the evidence sought. The mitigation of these tactics, which have the potential to hinder or delay the production of evidence, has made it easier and quicker to access evidence deemed relevant. In the context of these various advantages, we have seen that actions for pre-suit discovery production have become one of the most com- mon forms of litigation claims in Brazil. This phenomenon was largely made possible by the consolidation of the understanding, in line with the 2015 Code of Civil Procedure, of the existence of a separate, autonomous right to evidence, which has been widely reaffirmed by the Brazilian courts. Regardless of the pre-existence of an original right to the production of the evidence sought (eg, a request for the exhibition of a document based on the right of the partners of a limited liability company to request documents at any time, according to Article 1,021 of the Civil Code), once “the reasons justifying the need to
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