ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
of hearings, if any, scheduled by the court. In more complex cases, a decision can take up to twelve months. Parties can (and usually do) request that the application/motion be dealt with on an urgent basis, however this urgency is only considered by the court in exceptional cases.
inferences from their non-compliance. If a third party fails to comply with the order, the court shall order it to pay a fine. However, a third party has the right to contest the order by joining the proceedings. Except in cases where the order of disclosure is issued, the court may, on its own initiative, request information from the public administra- tion regarding administrative acts or documents. The administration must reply within 60 days. Lastly, a special disclosure procedure is provid- ed for in Legislative Decree No 3/2017 (imple- menting the European directive 2014/104/EU) regarding damages disputes in antitrust matters. 5.2 Discovery and Third Parties Please see 5.1 Discovery and Civil Cases . 5.3 Discovery in This Jurisdiction Please see 5.1 Discovery and Civil Cases . 5.4 Alternatives to Discovery Mechanisms In the Italian legal system, the regulation of evi- dence is set out in both the Civil Code, which provides for general rules on evidence, and the Code of Civil Procedure, which provides for the court’s powers over the evidence, and the meth- ods for acquiring evidence during proceedings. The Principle of “Burden of Proof” According to the general rule, a party asserting a right in court must provide evidence to substan- tiate the facts on which the claim is based. Simi- larly, a party opposing the claim by asserting the ineffectiveness, modification, or extinguishment of the right bears the responsibility of proving the facts underlying their defence.
5. Discovery 5.1 Discovery and Civil Cases
The concept of “discovery”, as a phase of pre- trial procedure in a lawsuit in which each party can obtain evidence from other parties by means of methods of discovery (such as interrogato- ries, requests for production of documents and requests for admissions), is unknown to the Ital- ian legal system. In Italian civil litigation, it is generally the respon- sibility of each party to provide the evidence needed to substantiate their claims in court. However, Italian law accounts for situations where a party cannot independently procure necessary evidence, offering various mecha- nisms to address this issue, including orders for the disclosure of documents or other items. The Order of Disclosure The order of disclosure is the Italian legal con- cept that most closely resembles the concept of discovery in common law jurisdictions. The court, upon application by a party, may order the other party or a third party to exhibit in court a document or other thing deemed essential to the proceedings. If the party fails to comply with the order of dis- closure without a valid reason, the court shall order it to pay a fine and may draw adverse
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