Brazil

• Pages: 135-138

135

CHAPTER VII

BRAZIL

A. Introduction

In common law countries such as Brazil, discovery is the pretrial phase

in a lawsuit. It enables one party to get information and evidence from the

opposing party,1 properly understand the facts of the case, assess its

probability of success, and potentially settle the case before trial. 2

As opposed to U.S. discovery, in which the parties may request “any

nonprivileged matter that is relevant to any party’s claim or defense”3—

also known as wide-ranging discovery—in Brazilian discovery, the parties

simply disclose to the other party only what they wish to disclose.

Even if evidence is requested by foreign authorities for use in foreign

proceedings, its production must comply with Brazilian legal framework,

in accordance with the limits of discovery in Brazil.

Brazilian law establishes that Brazilian authorities can provide direct

assistance for foreign requests of evidence production.4 The requirements

for these requests will be further explained throughout this chapter.

B. How to Request Evidence Production in Brazil

Foreign requests for evidence production are considered by Brazilian

law as “direct assistance requests.” The direct assistance request is the

proceeding that assures that evidence was validly produced. Those

requests may aim at judiciary assistance or administrative assistance.

Brazilian authorities are not bounded by the name of the assistance

requested by foreign authorities; they will construe and support the request

1. GEOFFREY C. HAZARD JR. & FLEMING JAMES JR. & JOHN LEUBSDORF,

CIVIL PROCEDURE 287 (5th ed. 2001).

2. FLÁVIO LUIZ YARSHELL, ANTECIPAÇÃO DA PROVA SEM O REQUISITO DA

URGÊNCIA E DIREITO AUTÔNOMO À PROVA 77 (2009).

3. FED. R. CIV. P. 26(b)(1).

4. Brazilian Code of Civil Procedure, art. 27, s. II.