Netherlands

• Pages: 313-336

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CHAPTER XV

NETHERLANDS

A. Introduction

Discovery in the Netherlands is governed principally by civil law as

codified in the Dutch Code of Civil Procedure (DCCP), as well as the

common law. The Netherlands is a party to the Convention on the taking

of Evidence Abroad in Civil and Commercial Matters (the Hague

Evidence Convention),1 which governs the taking of discovery in the

Netherlands in connection with U.S. legal proceedings. The application of

the Hague Evidence Convention to such proceedings is both informed and

limited by the Netherlands’ rules of civil procedure, as interpreted by

Dutch courts.

B. Civil Procedure in the Netherlands

1. Overview

Discovery as known in the United States is not available in the

Netherlands. In litigation before the Dutch courts, there is no restriction

on the admissibility of any form of evidence. Judges have considerable

discretion in the assessment of the evidence brought before the court.

Documents are the main form of evidence used in discovery. Testimonial

evidence is also common in Dutch proceedings, though it is closely

controlled by the court. The examination of witnesses is carried out by

judges, not attorneys. Attorneys may only request that the judge ask

particular questions of witnesses, and there is no cross-examination. Other

methods of taking evidence in the Netherlands include inspection by the

court of a certain object or place and obtaining testimony of the parties.

In recent years, Dutch procedural law has taken a more flexible

approach to document discovery. Revisions to the DCCP in 2002 have

1. Convention on the taking of Evidence Abroad in Civil and Commercial

Matters, 23 U.S.T. 2555; T.I.A.S. 7444; 847 U.N.T.S. 231; reprinted in 8

I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].

Obtaining Discovery Abroad, 3d

314

expanded the availability of document disclosure in Dutch civil litigation.2

In addition, proposed amendments to the DCCP may impact judicial

interpretation and application of the Hague Evidence Convention. As a

result, Dutch courts may become receptive to broader discovery requests.

The 2004 enactment of the European Regulation on taking evidence,

which regulates evidence gathering among European Union member states,

has also affected the application of the Hague Evidence Convention in the

Netherlands.3

The ongoing revisions to the DCCP leave Dutch civil procedure in a

state of flux. Given the changing state of the law, U.S. practiti oners should

seek advice about the current state of the law and practice.

2. Disclosure

Article 843a of the DCCP governs document discovery in the

Netherlands. It provides that anyone who has a lawful interest may, at his

own expense, demand inspection, a copy, or an extract, of certain

documents relating to a legal relationship to which he or his legal

predecessors are a party. Such a request may be made to any person who

has these documents at his disposal or in his custody. The court may not

grant a claim to produce all documents that the other party possesses. It

may only grant a claim to produce certain documents relating to the legal

relationship. Accordingly, a claimant must provide a precise description

of the documents requested. Under Article 843a, “legal relationship” is

interpreted broadly and may be formed not only through contract but also

2. See, e.g., Wetboek van Burgerlijke Rechtsvordering (Code of Civil

Procedure), translated in www.wipo.int/wipolex/en/text.jsp?file_id=

228264. Article 22 authorizes—but does not require—a judge, on his own

motion, to order a party “to produce documents relevant to the ease” (op

de zaak betrekkende hebbende bescheiden over te leggen) and contains

little guidance as to when a judge should exercise this new power or the

appropriate scope of a production order.

3. Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation

between the courts of the Member States in the taking of evidence in civil

or commercial matters, 2001 O.J. (L 174) 1 [hereinafter Regulation No.

1206-2001]. This regulation applies only to requests for evidence from

other EC member states with the key objective to speed up and simplify

the taking of evidence within the EC. For example, it accommodates video

conferencing and e-mail. (The regulation does not apply to Denmark.) For

a discussion of Regulation 1206/2001, see Arnaud Nuyts & Joe Sepulchre,

Taking of Evidence in the European Union under EC Regulation

1206/2001, 5 BUSINESS L. INT’L 305 (2004).