BRAZIL Trends and Developments Contributed by: Lucas Akel Filgueiras, Giovana Bosso and Caroline Cidri, Akel Advogados
pre-suit discovery production has been to define the extent of the evidence to be produced so that, at the same time as guaranteeing the regu- lar exercise of rights, abusive requests that could lead to the undue violation of third parties’ rights are prevented. This is a constant exercise in weighing legal rights and values, to be carried out on a case- by-case basis. Conclusions As discussed above, the 2015 Code of Civil Procedure introduced significant changes to the rules governing the action for pre-suit discovery production, establishing an “autonomous right to evidence”, independent of any subsequent fil- ing of an underlying action, and creating scenar- ios for its use that are not contingent upon the risk of loss of the evidence being sought after. These changes reflect the legislator’s intent to encourage settlements between parties and the use of alternative dispute resolution methods to reduce case overloads in courts.
Although originally envisioned (and even intend- ed) as an action of “non-contentious jurisdiction” with no actual dispute and no winners or los- ers, practice has demonstrated that, due to its characteristics, the action for pre-suit discovery production has become a significant tool in liti- gation, particularly in high-stakes cases. Given this, the judiciary has been compelled to adapt the interpretation and application of legal provisions related to this action to reflect the new reality, wherein the action for pre-suit discovery production has taken on a genuinely adversarial character and plays a crucial role in resolving disputes throughout the country.
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