EDiscovery & Disclosure 2018 Comparisons

Last Updated April 04, 2018

Law and Practice

Authors



Law Office of Gheidi & Associates is a boutique law firm of two partners and four associates, specialising in compliance and legal risk management, mergers & acquisitions, critical contracts, competition and anti-trust, aviation law, labour law and employment, disputes, litigation and arbitration and intellectual property. The firm, launched in 2012, has established a significant track record of working with reputable global corporations doing business in Iran in the airline industry, information technology and home appliances, construction, the pharmaceutical industry and general trading.

The Iranian litigation system is a single-tiered common law system. However, the personal status of non-Shia Iranian nationals in jurisdictions where non-Shia Iranians are the majority of the population shall be subject to the laws of their own religion, and on personal status affairs the courts shall treat them in accordance with the laws of that non-Shia religion. Such a majority may be seen in Hormozgan, Sistan & Baloochestan and Torkaman Sahra.

Since the Iranian judicial system is a common law system, the law relating to discovery/disclosure of ESI is mostly developed by rules.

There is no specific rules relating to the disclosure/discovery of ESI. However, e-commerce is codified as a parliamentary enacted law in Iran (called the e-Commerce Code dated 1382 [2003]). Under Articles 6 and 8 of the e-Commerce Code, in case there is a legal requirement to retain or present any information, such information can be retained as a data message (in electronic format), and data messages bear the same validity as written documents. Hence, any laws relating to discovery/disclosure of information (paper-stored information) can be extended to ESI as well. Therefore, information presented and discussion developed on discovery/disclosure of ESI within this chapter is all based upon the laws relating to the discovery/disclosure of paper-stored information.

Article 212 of the Civil Procedural Code obliges public authorities to reply to court inquires about stored information and documents, which are retained with such public authorities. In regard to the aforementioned articles of the e-Commerce Code, the obligation under Article 212 of the Civil Procedural Code shall apply to ESI as well.

Since 2004, judiciary power is obliged to destroy stagnant paper archives but to retain them electronically, and to make access to such ESI when an inquiry is made by a judge. 

As to the private sector, Article 210 of the Civil Procedural Code establishes that upon request by either of the parties, the other party shall present his or her commercial books to the courts. Based on the above-mentioned argument, this article shall apply to commercial books which are stored electronically. It is worth mentioning that not presenting the requested information might be considered as a presumption proving the other party's claims.

Being a common law system, such procedures are developed mostly by rules.

The discovery/disclosure of ESI takes place only if it is invoked by either of the parties to a proceeding and it is not an automatic obligation. If it is invoked by a plaintiff, he or she shall request it upon filing a case unless new facts are discovered during the proceeding justifying the subsequent invoking by a plaintiff. 

Article 13 of the Iran Trade Code explicitly puts an obligation (prior to the initiation of litigation) on traders to retain their commercial books for ten years. As previously explained, Article 210 of the Civil Procedural Code establishes that should, in the context of a civil litigation, a trader fail to present his or her commercial books (that could be in the form of ESI) to the courts it might be regarded as a presumption proving the other party's claims against the trader.

Article 544 of the Penal Code puts the same obligation to preserve information on public authorities which, in the same manner, will apply to ESI.

Under Article 544 of the Penal Code, public authorities who were obliged to preserve information shall be sentenced to imprisonment in case of the failure to fulfil that obligation, even if such a failure arises from negligence.

In the private sector, if a trader does not present ESI as prescribed under Article 210 of the Civil Procedural Code, she or he may be challenged with a presumption/indication against her or him.

Please see section 6 Sanctions and Penalties.

Based on general civil procedural rules, any party who invokes a disclosure shall bear the cost and if he or she wins the case the cost will be shifted to the losing party. If both parties invoke the same disclosure cost-sharing takes place.

There are no specific requirements for parties to meet and confer in the context of disclosure/discovery of ESI. However, the party who is invoking discovery shall provide the grounds for carrying out the procedure of discovery/disclosure, otherwise he or she cannot rely upon such information as proof. The counterparty is also required to co-operate, otherwise this might be regarded as an indication against him or her.

The scope of parties' obligations to search for, disclose and produce electronic documents has been explained above.

No legal provisions or rules are recognised that require a party to certify as to the scope or completeness that a search for electronic documents has been carried out.

There are no legal provisions or rules relating to form of production of ESI and/or timing of completion. However, the courts, upon their own discretion, specifies and orders a reasonable timeframe for completion of production of ESI.

There are no legal provisions or rules relating to the use of any advanced analytical tools for the search for, culling, processing, review or production of ESI.

No legal provisions or rules apply with respect to the production or withholding of production of privileged ESI.

Under the e-Commerce Code, the disclosure of trade secrets is regulated. Under the Penal Code, the disclosure of professional secrets (ie information received in the course of carrying out a profession such as lawyering, medical treatment and the like) is also regulated.

There are no statutes, rules or regulations that preclude or limit the transfer of ESI outside jurisdictional boundaries, except for governmental secrets. However, there are treaties between the Iranian government and other states on judicial co-operation whereby either of the contracting states shall provide information (including ESI based on the above argument) to the other for use in civil litigation upon request.

Law Office of Gheidi & Associates

No. 317, Padideh Building 47
Sarafraz
Beheshti (Abbas Abad)
Tehran
Iran - 1587696458

(+98 21) 88171982

(+98 21) 88541079

info@gheidilawoffice.com www.gheidilawoffice.com
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Law and Practice

Authors



Law Office of Gheidi & Associates is a boutique law firm of two partners and four associates, specialising in compliance and legal risk management, mergers & acquisitions, critical contracts, competition and anti-trust, aviation law, labour law and employment, disputes, litigation and arbitration and intellectual property. The firm, launched in 2012, has established a significant track record of working with reputable global corporations doing business in Iran in the airline industry, information technology and home appliances, construction, the pharmaceutical industry and general trading.

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