Document Production in Swiss Court Proceedings

For anglo-saxon lawyers, the rules on document production in Swiss State court proceedings will sound starkly different.

While there exists a duty to both parties to the proceedings and third parties to produce documents – to the extent they are not covered by privilege or other secrecy rules –, that duty is limited to the production of select documents that the requesting counterparty must specify in detail in its written pleadings.

That does not mean that only one or two documents can be requested for production. However, the request must be precise and limited in scope. While, therefore, it is possible to request the production of “all minutes of board meetings that took place between time x and time z,” the request to produce “all documents evidencing fact x” or “all the accounting documents from the period between time x and time z” are too far-reaching and not specific enough.

Fishing expeditions are, in other words, not considered permissible. As a general rule, it can be said that document production can be used to prove, or disprove, specific facts that were, before, duly alleged in the written briefs. By contrast, the purpose of document production is not to bring to light the factual basis of the requesting party’s case that will only allow that party to subsequently formulate due allegations on which it can base its case and prayers for relief.

Also, there is no pre-trial discovery. In fact, there is no full-fledged trial. While there is, typically, a court hearing during which witnesses are heard and both factual and legal arguments are made, that hearing is normally much shorter than a trial on the same topic before an English or US court would be. Instead, Swiss proceedings are front-loaded, with extensive written pleadings in which the parties must make detailed allegations, each individually corroborated by a specific reference to the underlying evidence (including, in specific cases, requests to have pieces of evidence produced by the counterparty or a third party).

This means, for one thing, that pre-trial discovery cannot be used as a costly means to increase the pressure on a counterparty. In addition, it is not possible to launch litigation based on suspicion or speculation and only then substantiate the case, and the prayers for relief, once the facts are on the table. Each party must, in essence, deal with the evidence it holds in its hands.

As a result, parties may need to resort to other avenues in order to obtain evidence before the cut-off date for making substantiated allegations and filing evidence in the proceedings. That can be proceedings in other jurisdictions (such as Section 1782 proceedings under US civil procedure law or parallel subject-matter proceedings, to the extent possible), criminal proceedings (where, in essence, the prosecutor gathers evidence without the restrictions of civil procedure law, but at the same time without the proof of a civil case as the focus), private investigations, or the like.

Also, it is important to make allegations in the proceedings in a manner that allows for the incorporation of new insights based on a document production after the first exchange of written pleadings – without having to withdraw all the previous allegations, and without having missed the cut-off date. This requires careful planning and clever procedural requests to the court.

On the receiving end of a document production request, it is equally important to take the necessary precautions so that a request by the counterparty, if made and successful, will not disprove the entirety of the allegations made in the written pleadings. What is more, the inability to abide by the terms of a document production order may, where it is reproachable, result in negative inferences by the court, or even the assumption that the counterparty’s allegations are true.

Over the past ten years during which the unified Swiss Civil Procedure Rules have been in force, our team has gained a wealth of experience in making wise – and well-timed – document production requests. We have won a number of landmark-cases where evidence obtained via such requests proved to be a game-changer in the dispute. While there may be no discovery in Switzerland, wise and strategically clever litigation will overcome the hurdles imposed by the somewhat restrictive rules on document production.

By Thomas Weibel, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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