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.