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24 January 2018

Disclosure in Austrian civil proceedings

Evidentiary proceedings are at the heart of all litigation and form the basis of any judgment. Sometimes the evidence is not in the possession of the party wishing to rely on it. In common law jurisdictions, parties may base their cases on their own documents as well as those in the possession of their opponent, and may force their opponents to produce all relevant documents in a pretrial discovery procedure. 

In civil law jurisdictions, however, the parties in litigation have rather limited procedural rights to request that their opponents produce evidence. However, the Austrian Code of Civil Procedure (CCP) also provides for legal instruments that may be used to force opponents (or third parties) to produce documents or physical items. Even if limited compared to other jurisdictions, the power of the Austrian tools of disclosure should not be underestimated.

Documents in the possession of the opponent

A simple pretrial discovery procedure allowing a party to obtain possibly admissible evidence from its opponent is alien to the Austrian law of civil procedure. Under certain conditions, however, Austrian civil procedure allows for the disclosure of documents which are not in the possession of the party wishing to rely on it to prove the facts alleged in its written or oral pleadings. Under Section 303(1) CCP, a party alleging that a document material to prove its case is in the possession of its opponent may request the court to order the opponent to produce that document. For this to not degenerate into a fishing expedition, the requesting party must either produce a copy of the requested document or, if that is not feasible, echo the contents of the respective document as precisely and completely as possible in its request. In addition, all the factual allegations to be proven by the requested document must be pleaded, and the requesting party must inform the court of circumstances indicating that the document is indeed in the possession of the opponent (Section 303(2) CCP). An Austrian court will decide upon a request to order a certain document to be produced only after having heard the opponent. 

If the court ultimately decides to order the opponent to produce the document, Section 304 CCP sets out specific circumstances in which it is strictly obliged to comply: 

  • if the opponent himself has referred to the requested documents to prove its allegations; or
  • if the opponent is subject to an Austrian civil law obligation to produce the document (the obligation may be contractual or statutory, eg restitution of a lease agreement or promissory notes and receipts according to Sections 1426 and 1428 of the Austrian Civil Code); or
  • if the requested document constitutes a joint document of the parties to the dispute (a document is a joint document if it was established to be used by either party as means of proof, or to influence or secure their legal relationship, eg the original copy of articles of association or an arbitration agreement).

As for documents other than those listed in Section 304 CCP, the party ordered to produce a document may refuse to do so by invoking any of the grounds for refusal under Section 305 CCP. More precisely, it may refuse to produce a document (i) if its content relates to family affairs; (ii) if the opponent's reputation is damaged by its disclosure;    (iii) if the disclosure causes harm to the opponent or a third party, or even entails criminal prosecution; (iv) if its disclosure violates an officially recognised duty of secrecy or business secrets; or (v) if other compelling reasons exist which warrant a refusal of disclosure.

Physical items in the possession of the opponentIn respect of physical items which are in the possession of the opponent, the evidentiary rules on inspection refer to the above-mentioned rules of disclosure of documents (Section 359 CCP). 

Documents in the possession of third parties
Pursuant to Section 308 CCP, third parties are obliged to produce a document only if (i) the third party is subject to an Austrian civil law obligation to provide the party tendering evidence with the document, or if (ii) the document, with a view to its content, is a joint document of the party tendering evidence and the third party concerned (see above). If these requirements are met, upon request of the party tendering evidence, the court may order the third party to produce the document at the expense of the party tendering evidence. Unlike with regard to the parties of the litigation, the CCP does not provide for any grounds for refusal with regard to third parties. 
The court must hear the opponent as well as the third party before deciding on the request to produce a document. If the third party denies that it possesses the document, the party tendering evidence must also attest that the document to be produced is in fact in the possession of the third party. The decision ordering a document to be pro-duced can be enforced by seizure or by imposing a penalty and, if such a payment cannot be obtained, by coercive punitive detention. If the party tendering evidence cannot attest to the third party's possession, it must initiate separate civil proceedings against the third party by filing an action for restitution of the document. 

Physical items in the possession of third partiesSection 369 CCP refers to the rules for producing documents only with regard to physical items in the possession of the opponent. There is no such refer-ence with regard to third parties. Therefore, the court cannot order third parties to produce physical items for evidentiary purposes. 

Further reading

Just how confidential is arbitration?
Commercial mediation - confidentiality matters