Access to evidence under Norwegian law - Some key points -
In this newsletter, we provide some key points as to the main terms and conditions governing the obligation to grant access to evidence (i.e. "modified" discovery" / disclosure) in civil matters under Norwegian law.
The rules in this regard can mainly be found in chapter 26 of the Norwegian Civil Procedure Code of 2005 (in effect from 2008). The rules are quite complex, with numerous possibly difficult legal issues involved. Below, we only provide an overview of the laws in Norway in this regard.
Please note that in Norway there is no similar discovery process as for instance in the UK or the US. This is why we used the word "modified" in the first paragraph above.
2. General comments as to access to evidence in Norwegian court cases
The main rule – and practical starting point – is that "everyone" involved in a civil matter has a duty to provide access to evidence, e.g., written documents (including "electronically stored material") that could be relevant to the case. The primary driver behind the evidence rules is to promote the likelihood that the courts will reach decisions which are based on the correct and complete factual circumstances, and which are thus also correct and fair.
It appears from both the wording and the preparatory works (legislative history) for the above-mentioned Code that the duty is not solely the responsibility of the parties. The duty also extends to witnesses and other third parties who are responsible for, or can provide, evidence that can shed light on the facts.
If a party believes that the counterparty or a third party has evidence of importance to the case, it is common to request (Norwegian: "provosere") in a pleading that the person provide the evidence. For instance, "the plaintiff requests that the defendant produces [such and such] evidence". In practice, this is normally sufficient to allow access to the evidence. One often sees that a party first "requests" certain evidence to be submitted (voluntarily) by the other side, and/or that "information" about a certain matter is "requested" to be provided by the other party (for instance, "were the accounts analyzed before buying the shares?"), and that the other party then submit or provide the requested evidence/information.
If a request is not complied with, the requesting party may then submit a petition to the court, which may then issue a legal order to grant access to the evidence, provided that various conditions exist.
There is no obligation to first use a request before petitioning the court to grant access to evidence via an order. If one is fairly certain that a request will not be complied with, or if there is not enough time to go through two possible rounds to get access to evidence, a party may submit a petition directly to the court and ask in that petition for the court to order that certain evidence be produced by the other party.
3. Conditions for the duty to provide access to evidence (i.e., when the court should order production of evidence)
There are six cumulative conditions for someone to have a legal duty to provide access to evidence, which in short are:
- One of the parties must in a pleading request the court to order that the other party to produce evidence
- The evidence must be related to the factual issues/basis of the matter before the court and be deemed possibly relevant
- The party receiving the request must possess the evidence or be able to obtain it
- The request must be specific. For instance, while "all correspondence between A and B" may be rejected as overly broad, "the correspondence related to A's trading with B" will likely satisfy this requirement
- The evidence must not be exempted/privileged as per chapter 22 of the Norwegian Civil Procedure Act (for instance "confidential correspondence with lawyer", "business secrets" etc.) etc.
- The burden of the petition must be "proportional" to the amount in dispute. This sixth/last condition enables the court to refuse to grant a petition for access to evidence if such a decision would result in costs that are not in a reasonable relationship with the nature of the dispute (especially the amount of damages claimed)
4. Possibility of appeal
Whether the court orders a party to give access to evidence or denies a request for such an order, its decision can be appealed. The Appeals Court will generally decide such an appeal based on written submissions alone. Normally an appeal process can take up to four months. The court that handles the actual dispute between the parties will typically postpone any relevant oral hearing until after the appeal process is finally resolved.
5. Consequences of not complying with a court order to grant access to evidence
If a party does not comply with a binding order to give access to evidence, it can – depending on the circumstances - have a negative effect on how the court evaluates the evidence for the party who did not follow the order, for instance about a financial matter. Hence, the court may – as an example – find that a party who has not complied with an access to evidence order "has not, under the circumstances, proven a financial loss". A party who does not comply with a binding court order to produce evidence may also - depending on the circumstances - receive a default judgement, and other consequences may be possible as well.