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Mind the Gap: The essential and often neglected differences in Court evidence between the US and European legal systems By Constantine Kokkinos, MDI, Attorney at Law

Unlike the US judicial system, EU (civil law countries and, to some extent, the UK) jurisdictions limit the disclosure of evidence to what is offered by the parties as evidence (in support of the case and, to be exhibited at trial)[1]. According to Article 29 of the EU Data Protection Working Party, it is up to the parties to the litigation to offer evidence in support of its case. The court conducts the discovery process, which is subject to a much narrower scope, and one party to a litigation has a very limited ability to require the other party to disclose broad categories of evidence. In EU civil law jurisdictions there is no concept of pretrial discovery and the type of evidence that is offered at trial is much more restricted and specified to the scope of the trial.

Only under the following circumstances can the court, on application of either party, may order the taking of evidence prior to the commencement of the trial:

  • In cases of imminent danger, where loss or destruction of a means of proof is involved, for example, in cases where the witness testimony is deemed to be necessary for the outcome of the litigation, the court may order the examination of the witness prior to trial if the attendance of the witness at the hearing is impossible for some compelling reason (for example, absence or illness);
  • When it is deemed necessary that an object should be examined in its present state. Thus, in an action arising out of a breach of a sales contract due to the deterioration of goods, the court, in order to assess the damages, may order the examination of the deteriorated goods prior to trial, since the goods in question should be examined in their present state; and
  • When the parties agree to call evidence before trial[2].

[1] Karin Retzer and Michael Miller, "Mind the Gap: U.S. Discovery Demands versus E.U. Data Protection", Privacy & Security Law Report, 10 PVLR 886, 06/13/2011.

[2] Nikos Frangakis, Nassia Kazantzi and Hara Saounatso, "Greece: Establishing Jurisdiction", November 1996.