Disclosure and Discovery: Comparing the Law of the United States (Common Law System) and the Netherlands (Civil Law System)
The Dutch and American economies are interconnected, but also have some remarkable differences. One of the remarkable differences between the United States and Netherlands legal systems is the method of discovery and disclosure before and during the court procedure.
It is worth noting that the broad discovery and disclosure regime described above is a defining feature of common law systems, most notably that of the United States. By contrast, civil law jurisdictions such as the Netherlands do not provide for a comparable system of general discovery and disclosure. Dutch procedural law instead rests, in relevant part, on the parties’ duty of truthfulness under Article 21 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), which requires parties to present the facts relevant to the dispute fully, accurately, and candidly during the court procedure.
The meaning of discovery and disclosure
Both distinct procedural mechanisms are used in civil litigation in the common law system to ensure that both parties — before entering the court procedure — have access to the information and evidence needed to resolve their dispute. In essence, a party must share the information, documents and witnesses that support its own claims and defenses prior to the court date.
Discovery, by contrast, is the broader pre-trial process through which each party can compel the other side (or third parties) to provide information, documentation and testimony relevant to the case.
If a party fails to comply with disclosure or discovery obligations, the court may impose sanctions, including prohibiting the party from using undisclosed evidence at trial, imposing fines or even dismissing claims or defenses.
In the Netherlands, this kind of practice does not exist to the same extent. However, this does not mean that a party in the Netherlands can just withhold certain relevant information that relates to the case.
Discovery and disclosure in the United States
The United States has a very extensive and mandatory discovery phase that is designed to ensure maximum transparency before the trial in order to prevent both parties from any surprises. According to the Federal Rules of Civil Procedure, parties may request any information relevant to the claim or defense, even if it will not directly be used as evidence in court. The purpose of the discovery phase is to eliminate surprises at trial and to ensure that mutual knowledge of all relevant facts gathered by both parties is essential to proper litigation. Hence, fact gathering prior to court procedure entails most of the court procedure.
In recent years, U.S. discovery practice has remained broad in scope, but courts have increasingly emphasized that discovery must be targeted, proportionate, and supported by concrete justifications. Federal Rule of Civil Procedure permits discovery of non-privileged information that is relevant to a party’s claim or defense, but only where the requested discovery is also “proportional to the needs of the case.”
A second trend is the continuing expansion of electronic discovery. Whereas discovery was historically focused on paper files and email correspondence, parties now frequently seek information from mobile phones, messaging applications, collaboration platforms, cloud storage systems, and shared workspaces. As a result, discovery disputes increasingly concern not only whether information is relevant, but also how it should be preserved, collected, searched, reviewed, and produced in a form that remains meaningful and reasonably usable.
The use of witnesses
In the U.S., both parties call witnesses during the court procedure for a formal examination and cross-examination procedure. The judge does not question the witnesses but participates in the examination by ruling on evidentiary objections posed by the parties.
In comparison with the Netherlands
In the Netherlands, there is no extensive ‘pre-trial discovery’ process compared to the United States. The general rule is that the parties themselves are responsible for gathering and submitting evidence. Regarding the burden of proof, parties must present evidence used in their pleadings. If a party is not in possession of certain evidence that is significant to the case, they may request certain evidence of the counterparty if they know the counterparty is in the possession of the respective evidence, all in accordance with the Dutch Civil Code. The court will be vigilant regarding phishing expeditions and, hence, provide a high bar to procure documentation from the counterparty (i.e. only be given with legitimate interest and requests regarding documentation need to be clear and specific).
The use of witnesses
Dutch judges question the witnesses at trial and then allow both attorneys an opportunity to question the witnesses. The witnesses are called either by the court or the respective party must request permission from the court if it wishes to call a witness. Often, there is no oral testimony from witnesses at trial, as the entire trial is based on a detailed written statement.
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Interested in learning more, including about doing business and mitigating legal risks involved when doing business in the United States? Please do not hesitate to contact Barnes & Thornburg (Pien Obbes, Transaction Business Advisor (Chicago) / Denise Johnson, Partner (Chicago) / Timo Rehbock, Partner, Chair of the European Practice Group (Chicago).
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