LUXEMBOURG Law and Practice Contributed by: Fabio Trevisan and Laure-Hélène Gaicio-Fievez, BSP
Upon receipt of the request, the court under- takes a verification process. It assesses the likelihood that the document exists, is in the possession of the named individual, and holds relevance to the case’s resolution. The court has discretionary authority to either grant or deny the disclosure request. Reasons for denial could include the document’s lack of relevance to the case at hand, its status as privileged or confidential information, or the overly broad nature of the request. 5.3 Discovery in This Jurisdiction Luxembourg does not have the concept of dis- covery commonly found in common law juris- dictions. The burden of proof lies squarely with the party making the allegation, consistent with the adversarial principle that underpins the legal system. 5.4 Alternatives to Discovery Mechanisms Please see 5.1 Discovery and Civil Cases . 5.5 Legal Privilege Communications between an independent law- yer and their client are protected by professional secrecy as provided for under the law which regulates the profession of lawyers, and under the Criminal Code. Communications between independent lawyers are in principle deemed confidential, unless such communications have been labelled as official or are to be considered official by their nature. Notably, in-house lawyers are not afforded this professional secrecy. 5.6 Rules Disallowing Disclosure of a Document Article 287 of the NCPC allows a third party, ordered by a judge to produce a document, to challenge this decision by invoking a legitimate
reason. This avenue for opposition is open to both the third party and the parties directly involved in the proceedings. As Luxembourg does not have a discovery process, a party is generally only required to disclose documents that strengthen its position and is not obligated to disclose documents that would damage its position. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Judges, particularly the presidents of district or labour courts, have discretionary power to issue interim measures under specific circumstances. This discretion is typically based on the urgency, obviousness, and incontestability of the claims. First, Article 933(2) allows a judge to rapidly issue an order directing a debtor to pay a credi- tor when the obligation is clearly established. This process is not contingent on urgency. The proceedings on the merits sometimes take a very long time, and the creditor would then have to wait until the end of the proceedings to be able to recover their claim. Second, the NCPC introduces two types of sum- mary procedures for evidence collection: • summary procedure ( référé probatoire ) (Article 350 of the NCPC); or • summary procedure ( référé prevue ) (Article 350 of the NCPC). These are two procedures where one wants to collect evidence to use in a trial on the merits. With regard to the probationary summary pro- ceedings ( référé probatoire ), it is not necessary to establish urgency.
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