Pretrial Evidence Production in Colombia

By Christian Perez (Associate) of Lloreda Camacho & Co.

 

I. Overview

 

This QuickCounsel will provide an overview of the key aspects of pretrial evidence in Colombia, usually utilized whenever a person needs to browse and secure evidence in advance, either to file a civil complaint against another or to defend itself against possible lawsuits derived from known facts. Furthermore, in year 2012 Colombia enacted the new General Code of Procedure ("CGP" for its acronym in Spanish) which established a new evidence system that strongly encourages the parties to a future trial, prior to the commencement of a formal proceeding, to obtain and produce the evidence they might need, with the aid of civil courts if necessary.

Thus, before a trial is initiated, a person is encouraged to garner all possible evidence needed to either support or contend a future course of action. Such duty offers no difficulty should the evidence rest within its own files, but what if the proofs are not in its possession but in someone else's, like private or public third-parties? Moreover, what if the evidence is only in possession of its future counterparty?

There are occasions in which it is possible to obtain pretrial evidence just by sending a written and formal request to third parties for them to willfully produce it. However, experience shows that in most occasions third parties refuse to produce any evidence without a court order mostly for confidentiality reasons. Moreover, what if in the absence of documents the facts can only be proven by the means of witness depositions? In any of those scenarios and further, prior to the initiation of a formal trial, the CGP entitles any person to request a court order for the pretrial production of various types of evidence.

 

II. Obtaining Pretrial Evidence Without a Court Order

 

Article 23 of the National Constitution along with articles 13 and following of Law 1755 of 2015 entitle any person in Colombia with the fundamental right of petition ("derecho de petición" in Spanish). Thus, pursuant to Colombian law and case law from the Constitutional Court of Colombia anyone, without the need of a lawyer and completely free of charge, is enabled to exercise the right of petition by filing direct and respectful requests to either public or private entities or persons, in order to obtain the information or evidence it requires from them, and such petition has to be answered within 10 business days following its reception.

However, it is important to be advised that the right to file the petition and to get an answer within 10 business days does not automatically mean that the petitioner will obtain the information or the evidence it seeks. In fact, as mentioned before, whoever receives a petition may either: (i) fail to respond at all or within the legal period; or (ii) issue a reply alleging that the information and/or evidence requested cannot be furnished due to legal reserve o confidentiality. In any of those scenarios the petitioner will have to go to court to obtain a judicial order either to force a response -even a negative one- or to order the production of the requested documents and/or information. The former is a constitutional action for the protection of the right of petition called “Acción de Tutela” , and the latter are very similar to the subpoenas to produce documents allowed in U.S. procedural law.

 

III. Obtaining Pretrial Evidence in Colombia With the Aid of Courts

Having established that a direct request for evidence might in occasions end-up in no-response or a negative one, Article 183 and following of the CGP under the title "pruebas extraprocesales" gives the right to request a court the granting of orders for the production of pretrial evidence. The gathering of pretrial evidence will be governed and carried out under the rules contained in the CGP and the request needs to be filed before the civil courts from the place where the evidence will be produced or from the third party's domicile.

On the other hand, there are no particular formalities contained in the CGP for the request of pretrial evidence before Colombian courts. However, it is strongly advised to draft a memo similar to a formal complaint, enunciating the facts that the petitioner wishes to prove with the aid of the court, the reasons why the evidence cannot be obtained without such judicial assistance and the legal grounds for the request.

There are different types of evidence that can be obtained via pretrial evidence orders as per the CGP, which are: party interrogatories, depositions regarding documents, requests to exhibit documents and movable goods, witness depositions, site visits and judicial inspections; very similar to the Discovery allowed according to the Federal Rules of Civil Procedure of the Unites Stated of America.

Whoever wishes to sue or believes that will be sued may request just once, for a court to order the appearance of its future counterparty to be interrogated under oath about the facts of a future course of action. Pursuant to article 191 and following of the CGP the purpose of a party interrogatory is to obtain a confession from the future counterparty to be used in a trial.

Anyone may request an order to summon the author of a private document and/or its representative to appear before a civil court to render a deposition under oath regarding the authorship, scope, and contents of the document. Such deposition might also include recognition of a signature in the document.

It is also possible to request a civil court for an order directed to third parties and even to its future counterparty, in order for them to exhibit documents and movable goods related to the facts that are to be proven in a future trial. Such request along with the practice of the exhibition will be governed by articles 265 and following of the CGP. In general terms, the petition must explain which are the facts that will be proven, the type of documents or movable goods and how are they related with the said facts. The application must precise that the documents or goods are in possession of a third party or of the future counterparty. In the case of documents, once exhibited, the court will order the production of copies unless the person who performed the exhibition agrees to deliver the originals.

In the event of an opposition to the order of exhibition, the same court that granted the order will hear the grounds of such opposition and decide whether to accept it or not.

 

Whenever a person intends to use a testimony in a future trial, it is entitled to request a civil court to order another person to be summoned to render a witness deposition under oath. Article 188 of the CGP also authorizes, without the attendance of the future counterparty, to carry out such sworn witness depositions before a Notary Public or a Mayor, but with certain limitations regarding their probative value in future judicial proceedings.

The CGP also provides the right to ask for pretrial site visits and judicial inspections on persons, places, goods or documents that will be part of a future legal proceeding, with or without the aid of experts. Such inspections are especially useful for obtaining evidence that is in possession of third parties and that the petitioner believes that might be concealed, altered or deleted.

Is these last scenarios, the aid of IT experts is strongly encouraged when the inspection refers to electronic documents and/or electronic correspondence, in order to be able to determine whether it has been erased or modified in any way.

Please be advised that expert opinions - other than expert aid in judicial inspections - are not mentioned in the chapter of pretrial evidence of the CGP. However, the CGP made an important change with respect to the previous and now repealed Civil Procedure Code ("CPC") regarding this type of evidence, as the general rule used to be court-appointed experts who rendered their opinions during a trial. As opposed to the CPC, Article 227 of the CGP establishes a new general rule as to which the parties are required to hire their own experts and deliver their opinions to the court. This means that in a certain way, expert opinions as a general rule are carried out as pretrial evidence - with exceptions found in the CGP.

 

IV. Conclusions

Although the option of obtaining pretrial evidence existed since the CPC, the new CGP introduced a system that encourages the future parties to procure obtaining evidence prior to the initiation of a formal proceeding or trial. Given that in many occasions the evidence is in possession of third parties who might not be willing to produce it, the CGP gives any person the right to ask civil courts for judicial orders to collect such evidence, which includes, among others, party interrogatories, witness depositions, site visits and document production. Expert opinions, as a new general rule, are to be rendered by party-appointed rather than court-appointed experts.

V. Additional Resources

Ten Things to Consider When Establishing a Legal Hold Policy. (ACC, 2013)

Top Ten Best Practices for Executing Legal Holds. (ACC, 2014)

eDiscovery for the Middle Market. (ACC, 2015)

El interrogatorio en el CÃdigo General del Proceso. (La Republica, 2015) El drama pericial. (Ámbito Jurídico, 2012) ¿Qué es un derecho de petición y cómo formularlo? (Town Hall of Santiago de Cali) Sentencia C-863/12. About pretrial testimony. (Colombian Constitutional Court) Sentencia T-274/12. About pretrial evidence. (Colombian Constitutional Court) Pre-trial Procedures. (Prof. Charles Nesson, Harvard Law)