- Swiss civil procedure involves no discovery.
- Each party brings its own evidence.
- Proceedings rely primarily on written pleadings.
Swiss law is reliable and predictable, and Swiss venue is neutral, which makes it a popular choice in cross-border commercial contracts. That said, for lawyers from common law systems, the rules on document production in Swiss State court proceedings will sound starkly different.
There is no discovery, which makes the proceedings lean and cost-efficient, but also means that parties must, in principle, adduce all the evidence on which they intend to base their claim.
Written pleadings and short hearings
In addition, Swiss proceedings are front-loaded. All allegations must be made in written pleadings, each allegation individually corroborated by a specific reference to the underlying evidence.
Trials or hearings are comparably short, and witness evidence plays a somewhat subordinate role. In fact, there is no full-fledged trial. While there is, typically, a court hearing during which witnesses are heard and both factual and legal arguments are made, that hearing is normally much shorter than a trial on the same topic before an English or US court would be.
Bring Your Own Evidence
Having the right documents available – or being able to obtain and produce them – is therefore of paramount importance:
- While there exists a duty to both parties to the proceedings and third parties to produce documents – to the extent they are not covered by privilege or other secrecy rules –that document production duty is limited to the production of select documents that the requesting party must specify in detail in its written pleadings.
- That does not mean that only one or two documents can be requested for production. However, the request must be precise and limited in scope. While, therefore, it is possible to request the production of “all minutes of board meetings that took place between time x and time z,” requests to produce “all documents evidencing fact x” or “all the accounting documents from the period between time x and time z” are too far-reaching and not specific enough.
- Fishing expeditions are, in other words, not considered permissible. As a general rule, document production can be used to prove, or disprove, specific facts that were, before, duly alleged in the written briefs. The purpose of document production is not to bring to light the factual basis of the requesting party's case that will only allow that party to subsequently formulate due allegations on which it can base its case and prayers for relief.
This means, for one thing, that pre-trial discovery cannot be used as a costly means to in-crease the pressure on a counterparty. In addition, it is not possible to launch litigation based on suspicion or speculation and only then substantiate the case and the prayers for relief, once the facts are on the table. Each party must, in essence, deal with the evidence in its possession.
As a result, parties may need to resort to other avenues to obtain evidence before the cut-off date for making substantiated allegations and filing evidence in the proceedings, such as:
- proceedings in other jurisdictions (such as Section 1782 proceedings under US civil procedure law or parallel subject-matter proceedings, to the extent possible),
- criminal proceedings (where, in essence, the prosecutor gathers evidence without the restrictions of civil procedure law, but at the same time without the proof of a civil case as the focus, and without much control of the parties, neither in scope nor with regard to the speed at which the investigation is conducted),
- collaboration with potential witnesses, or
- private investigations.
In-house counsel should be involved in their business clients' interactions with counter-parties and implement an early-warning system for potential litigious cases. In these cases, securing information (e.g., by implementing a "litigation hold" or "document preservation") or channelling communications with counterparties (e.g., to prevent 'loose gun' collaborators from making statements that, later on, may prove negative or prompt counter-parties to dig further, including by virtue of document production requests) may be appropriate steps to be taken.
Likewise, setting up and structuring the documentation in a manner that, subsequently, enables it to be used seamlessly for the purposes of litigation can make a decisive difference. More often than not, external counsel should be involved early on in this process, also to enable specific information to be exchanged under legal privilege and to establish certain facts that may not be key for the business aspects but prove decisive in a later dispute.
Also, it is important to make allegations in the proceedings in a manner that allows for the incorporation of new insights based on a document production after the first exchange of written pleadings – without having to withdraw all the previous allegations, and without having missed the cut-off date.
In instances where a material position, or even a prayer for relief, may change fundamentally depending on the content of documents sought to be produced, statements in the writ-ten briefs should be kept sufficiently generic and open-ended at the outset, enabling the findings stemming from document production to be seamlessly incorporated in the course of the proceedings.
This requires careful planning and thought-through procedural requests to the court, upholding the possibility to incorporate findings from document production requests in the proceedings in due time and form, and also enabling the examination of witnesses to take place only after document production.
At the same time, it must be made clear to the court that, and why, the document production request may substantially impact the findings and should, therefore, be granted in the interest of justice.
Responding to document production requests
On the receiving end of a document production request, it is equally important to take the necessary precautions so that a request by the counterparty, if made and successful, will not disprove the entirety of the allegations made in the written pleadings. This means that overly absolute statements may need to be avoided.
More importantly, it is key to identify weaknesses resulting from documents that are unknown to the counterparty but might become known to it due to its document production requests.
The inability to abide by the terms of a document production order may, where it is reproachable, result in negative inferences by the court, or even the assumption that the counterparty's allegations are true.
While there may be no discovery in Switzerland, wise and strategically clever litigation will overcome the hurdles imposed by the somewhat restrictive rules on document production, allowing litigants to profit from the advantages of Swiss proceedings while being able to deal in the best possible way with the features in which Swiss civil procedural law differs from common law systems.
About the Author
Dr. Thomas Weibel, LL.M., Partner, Co-Head of Dispute Resolution, VISCHER AG, Zürich/Geneva/Basel
Read “Arbitration in Switzerland: Quick Overview of the Revised Swiss Law of International Arbitration,” by Christian Oetiker, Mladen Stojiljković, Nicole Brauchli-Jageneau, VISCHER Ltd., August 27, 2020
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