KUWAIT Law and Practice Contributed by: Dr Fawaz Alkhateeb, Taher Group Law Firm Co
5.4 Alternatives to Discovery Mechanisms
It is equally uncommon to take witness testi- mony during the evidence-gathering process. Rather, during the trial, the court would have the purview to request the testimony of a witness. With regards to scope and costs of the evi- dence-gathering process, the court once again plays an important role and can reject a party’s overly broad requests and assign costs. 5.2 Discovery and Third Parties In Kuwait, the process of obtaining discovery from a third party may be possible but is gener- ally subject to specific legal procedures and the court’s discretion. The party seeking to obtain discovery from a “non-party” would apply to the court and provide grounds for why the discovery from the non-party is necessary for the case. However, there are some laws which provide confidentiality to certain information for third parties, such as: Article 112 of Decree Law No 38 of 1980 on the Issuance of the Civil and Commercial Procedures Law, which stipulates that deliberations in judgments are confidential among the assembled judges. 5.3 Discovery in This Jurisdiction In Kuwait, there are no specific categories of documents that parties must disclose as part of a formal pre-trial discovery process. Instead, when filing a claim, parties are generally expect- ed to submit the documents that establish the veracity of their claims or defences. This may include evidence of a debt owed, a wrong ren- dered, or any other relevant documents that support their case. As mentioned above, the court would then have a central role in evaluat- ing and requesting evidence and facilitating the resolution of the case.
In Kuwait, the process of developing and admit- ting evidence in legal proceedings occurs dur- ing the trial and follows the procedural steps of exchanging statements. Parties are typically required to notify each other of the evidence and witnesses they plan to present. During the trial, the parties may call witnesses to testify, provide information and expert opinions, and may submit the relevant documents. Exami- nation and cross-examination of witnesses take place during the trial. The court assesses the admissibility of evidence based on its relevance, reliability and legality, and maintains a record of the proceedings. 5.5 Legal Privilege Kuwait recognises the concept of legal privilege, including attorney-client privilege and litigation protection. The purpose of these legal rights is to safeguard the privacy of specific correspond- ence and documents exchanged between cli- ents and their legal counsel. Kuwait’s legal privi- lege doctrine usually reflects international legal norms. In addition, parties can rely on legal privilege for both external and in-house counsel, thereby offering a wider umbrella for the protec- tions of legal privilege. 5.6 Rules Disallowing Disclosure of a Document During legal procedures, a party may be per- mitted to withhold or not reveal a document under additional norms or circumstances. Typi- cal guidelines or justifications for withholding a document include the following: privilege; irrelevance; confidentiality; national security or public interest; undue burden; and legislative barriers. Generally, parties wishing to withhold
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