Legitimate spying? Disclosure in Austrian and Slovak civil proceedings

Evidentiary proceedings are the core of civil proceedings. Here, the parties substantiate their procedural position and prove the facts alleged in their pleadings. Evidentiary proceedings thus contribute to the determination of the facts forming the basis of the judicial decision. The extent of the parties' contribution depends on their respective roles in the proceedings and the distribution of the burden of proof.

Documents are considered very strong evidence with a high degree of reliability. These can include electronic documents and written digital products, such as e-mails, chat histories and transaction data on a blockchain, provided they are prepared in writing and the court can assess them directly. However, sometimes documents are not in the possession of the party wishing to rely on them, but are held by the opposing or a third party.

What if you don't have the documents?

If a party wishes to rely on documents that it does not have, they can be requested from the court, though not as part of a fishing expedition to uncover facts that the party itself did not have clarity about. Such exploratory evidence is inadmissible under Austrian and Slovak law. In both countries, the request must specify the desired document in detail, for example, by describing it as precisely and completely as possible. A blanket statement like "all correspondence" is not enough.

In Austria, the relevance for the proceedings must also be explained and the possession of documents by the opposing party or a third party must be certified. Similarly, in Slovakia the requesting party must specify which alleged facts are to be proven by the requested document, with actual possession not being a factor.

The court will decide on a document disclosure request only after having heard the opposing and third party, if applicable. Under Slovak law, the party's obligation to disclose documents based on such a court order is called an "editorial obligation".

When is disclosure obligatory?

If the opposing party itself has referred to the document for the purpose of providing evidence, or if the opposing or third party is obliged to surrender it under Austrian civil law, or if it is a joint document of the applicant and the opposing or third party, then disclosure is legally obligatory.

In contrast, the disclosure may be refused by the opposing party, but not by third parties, if (i) the content of the documents relates to family affairs, (ii) the opposing party's reputation is damaged by the disclosure, (iii) the disclosure causes harm to the opposing or a third party, or even entails criminal prosecution, (iv) the disclosure violates an officially recognised duty of confidentiality or trade secrets, or (v) other compelling reasons exist that warrant a refusal of disclosure. This reflects the principle of weighing of interests.

These rules allow the opposing party to protect its own as well as third-party corporate documents from disclosure under the broad spectrum of trade secret protection. However, the opposing party is obliged to notify and at least certify to the court an existing confidentiality obligation, from which it was not already discharged, and existing trade secrets as soon as possible. The question of whether documents are subject to a confidentiality obligation or qualify as trade secrets must be assessed on a case-by-case basis and is up to the court to decide.

What if you fail to disclose?

Non-compliance with the editorial obligation or an unjustified refusal to disclose documents is to be freely assessed by the court and, therefore, may influence the parties' procedural status. On the one hand, facts alleged by the applicant may remain unproven. On the other hand, to the detriment of the opposing party, the claimed content of the documents may be considered proven even without their disclosure. In practice, the latter is more often the case.

Austrian and Slovak law do not provide for sanctions or coercive measures such as fines, though such measures are available in the case of an order for disclosure against third parties. In addition, such third parties may be sued for the surrender and disclosure of the documents. Therefore, in principle, it is possible to obtain trade secrets of the opposing party via a third party.

Compared to other jurisdictions, the procedural possibilities in Austria and Slovakia to induce the opposing or third party to disclose documents relevant to one's own procedural position are limited. Pre-trial discovery is alien to Austrian as well as Slovak law. Nevertheless, the tools of disclosure in both countries, especially regarding trade secrets, should not be underestimated.

authors: Sarah Rosenthaler, Ján Farbiak