Contributed By Pérez-Llorca
Discovery is not allowed in our country. However, certain disclosure mechanisms are specifically regulated.
The SCPA foresees a type of preliminary injunction that may be lodged in order to collect information or documents required to prepare a forthcoming lawsuit, but only limited to the following cases:
After the lodging of the application, the court shall examine whether the preliminary injunction is in accordance with the object pursued by the applicant and that there is just cause and legitimate interest in the application.
Moreover, the implementation of the Directive 2014/104/EU introduced specific regulation regarding the disclosure of evidence in order to bring legal action for damages arising from infringements of the competition law.
In this case, the evidence requested may refer to (i) the identification of the infringers and aggrieved parties, (ii) the infringement itself, or (iii) the identification, volume and prices of the products and services affected by the infringement.
Disclosure or preliminary injunction under SCPA is very limited and does not include the taking of witness testimonies.
The exhibition of documents is always administered by the court.
The party against whom the preliminary injunction is lodged may object to the injunction on the grounds that it is not justified. In this case, parties shall be summoned to attend a hearing after which the court shall issue a decision.
In addition, when it comes to injunctions regarding legal action for damages arising from infringements of competition law, the SCPA foresees the possibility of (i) removing sensitive sections, (ii) limiting the number of people that can examine the documentation, (iii) instructing experts to produce summaries of the information in an aggregated non-confidential form.
The party who is filing a preliminary injunction shall cover the costs incurred by individuals who participate in the injunction. For this purpose, the party shall provide a security when filing the preliminary injunction.
With the limitations set forth above, it is possible to file a preliminary injunction against third parties in some cases if they are in possession of the document to be exhibited, provided it is duly identified. For instance, case no. (ii) described above.
The injunction proceedings are the same regardless of the person against whom it is filed.
Under Spanish jurisdiction, discovery is not allowed and disclosure is limited to certain cases and documents (see above, section 5.2 Discovery and Third Parties).
Parties are not obliged to disclose documents that have not been requested by the counterparty and admitted by the court either during the preliminary injunction proceedings or proposed and admitted during the hearing that takes place after the filing of the lawsuit.
See section 5.1 Discovery and Civil Cases and section 5.3 Discovery in Your Jurisdiction.
Spain recognises the concept of legal privilege in the Organic Act on Judiciary Power. As a rule, communications between an attorney and their client are confidential and therefore an attorney shall not be compelled to declare any facts or news that come to their knowledge due to their professional activity.
The law does not distinguish between external and in-house counsel. However, courts tend to make such distinction in accordance with the judgment issued by the EU Court of Justice on September 14th 2010, Case C-550/07 P – Akzo Nobel Chemicals and Akcros Chemicals/Commission.
Once the court has issued the injunction, the party must always disclose the document.
Refusal to comply with the request can lead to the adoption of measures, such as (i) considering the fact admitted for the purposes of the subsequent trial, (ii) issuing of an order to enter and search the premises where the relevant document may be, or (iii) considering the copy of the document submitted by the applicant to be authentic.