AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH
5.3 Discovery in This Jurisdiction There are no pre-trial discovery proceedings. Taking evidence is considered a sovereign task of the court and is conducted exclusively by the
5.5 Legal Privilege Austria recognises the concept of legal privilege. Members of legal professions, particularly attor- neys-at-law, must refuse to testify with respect to any one of their mandates before any author - ity unless released by their client. Neither the party nor its counsel can be forced to produce client-attorney work product. No adverse infer- ences may be drawn by the court from such a refusal. Client-attorney correspondence and attorney work product are protected by legal privilege irrespective of where such documents are located. 5.6 Rules Disallowing Disclosure of a Document A party ordered to produce a piece of evidence is entitled to object to the order in order to pro- tect: • family affairs; • the party’s duty of preserving honour; • itself or third parties from criminal prosecu- tion; • legal privilege; or • business secrets. However, the requested party may not refuse to produce the requested evidence if: • it previously referred to the piece of evidence (mostly documents) in the proceedings; • substantive law requires the requested party to produce the evidence (this also applies to evidence in the possession of third parties); or • the evidence is in the form of a document and may be considered to be of joint use with respect to both parties (eg, a written con- tract). This also applies to evidence in the possession of third parties if the piece of evidence is of joint
court at the request of the parties. 5.4 Alternatives to Discovery Mechanisms Order for Document Production
In civil proceedings, a party may be ordered by the court to produce evidence at its disposal upon request by the other party or even without such a request (this rarely occurs). The prerequisites for an order to produce docu- ments upon request are that: • the requesting party can present plausible reasons for the allegation that the document is in the possession of the other party; • the requesting party either provides a copy of the document it is requesting (to be pro- duced in the original) or can accurately and fully describe the content of the document (it is not permissible to request a category of documents); and • the requesting party must state which facts it expects to prove with the requested docu- ment. Criminal Investigation If there is a suspicion of criminal misconduct, discovery may also be pursued through the initiation of a criminal investigation. Evidence, particularly in the form of documents obtained by the criminal authorities (eg, through house searches), may be obtained for use in civil pro- ceedings. Any (potential) victim of a criminal offence as well as third parties with qualified legal interest may be granted access to the con- tents of a criminal file.
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