BRAZIL: An Introduction to Dispute Resolution: Litigation

Production of documents: Enforcement, in Brazil, of an interlocutory decision issued in the USA

Is it possible to enforce in Brazil an interlocutory decision issued in the United States ordering the production of documents? If so, what is the appropriate procedure? And what are the possible limits to compliance with this foreign order? This article aims to answer these questions in a very concise and objective manner.

Letter Rogatory

The answer to the first question is affirmative: yes, by means of a Letter Rogatory it is possible to enforce in Brazil a decision issued in the USA requesting the production of documents by a company or individual based in Brazil, for the purposes of complying with the evidentiary stage of a claim ongoing in the USA. This is called a “Passive Letter of Request” (“Carta Rogatória Passiva”), as it comes from another country to carry out proceedings in Brazil, and has the legal nature of a procedural measure, as its purpose is to carry out a specific procedural act arising from a case already commenced abroad (as opposed to an “Active Letter Rogatory” - “Carta Rogatória Ativa” –, issued by a Brazilian judicial authority).

The Inter-American Convention on Letters Rogatory, promulgated by Decree No. 1,899/1996, and its Additional Protocol (Decree No. 2,022/1996), expressly addresses with the issue, and provides, in Article 2, that letters rogatory issued in proceedings relating to civil or commercial matters by the judicial authorities of one of the member states will be used to "obtain evidence and information abroad".

Along the same lines is the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, promulgated by Decree No. 9.039/2017, which facilitates the taking of evidence between Brazil and dozens of other countries, including the United States of America.

Superior Court of Justice

In Brazil, the Superior Court of Justice ("STJ") has jurisdiction for " homologation of foreign decisions and granting of ‘exequatur’ to letters rogatory" (the term "exequatur” means "execute" or "comply") (article 105, I, i", of the Federal Constitution). The Letter Rogatory, therefore, must be filed with the STJ, and will follow the procedure set forth in articles 216-O to 216-X of its Internal Regulations, which allows for the right of parties to be heard.

Any objection filed by the target of the foreign order (a party to the foreign proceedings or a third party requested to cooperate) may only refer to the authenticity of the documents included in the proceedings, the reasoning of the decision and the compliance with the requirements set out in Brazilian legislation, among which the ones described in article 963 of the Brazilian Code of Civil Procedure ("BCCP") are worthy of notice: the decision must (i) have been issued by a competent foreign authority; (ii) be preceded by regular service of process; (iii) be effective in the country where it was issued; (iv) not offend Brazilian res judicata; (v) be accompanied by an official translation; and (vi) not violate public policy.

Brazilian Code of Civil Procedure

If the requirements at issue are met, the grounds for granting the exequatur are found in the BCCP, specifically in articles 378 ("No one is exempt from the duty to cooperate with the Courts in order to determine the truth"); 379 ("Provided that the right not to produce evidence against oneself is preserved, a party shall: (....) I - appear in court and answer any questions addressed to them; II - cooperate with the court in carrying out any court-ordered inspection deemed necessary; III - to perform any act so ordered"); and 380 ("II - to produce anything or any document in one’s possession").

However, it is certain that STJ, when deciding whether to grant the exequatur, must not only analyse whether the execution of the foreign order would violate public order or the non-self-incrimination principle, but also whether the limits set out in articles 399 and 404 of the BCCP are complied with.

Article 399

Article 399 provides that the target of the decision may not refuse to produce a certain document if (i) there is a legal obligation to do so; (ii) the document has been referred to in the proceedings to serve as evidence; and (iii) the document, by its content, is common to the parties. Contrariwise, if the order for production of documents does not fall within one of the clauses of the said legal provision, the refusal could be accepted by the Brazilian Courts.

Article 404

Article 404, in turn, establishes that the party and the third party are excused from producing the document in court if (i) it concerns family business; (ii) the disclosure may violate a duty of honour; (iii) the publicity may bring dishonour to the party or the third party, as well as their blood relatives or relatives up to the third degree, or represent a danger of criminal prosecution; (iv) the disclosure may result in the divulging of facts which, by virtue of their status or profession, must be kept confidential; (v) there are other serious reasons which, at the prudent discretion of the judge, justify the refusal of disclosure; or (vi) there is a legal provision justifying the refusal of disclosure.

In fact, the principle of international cooperation must be balanced with national rules for evidence production and submission of documents. Even though there may be an interest in cooperating with the resolution of disputes occurring abroad, it cannot be acceptable for one targeted by the Letter Rogatory to produce evidence against oneself, or to present a document that violates honour or even leads to the disclosure of facts that must remain confidential as a result of status or profession.

Discovery

It is in this respect that the analysis for execution in Brazil of the order issued in the USA can seem abnormal for American parties and attorneys: as is well known, the discovery, which occurs in the pretrial phase of American procedural law, is much broader than the production of evidence in Brazil. Discovery can be defined as the duty of both parties to disclose evidence and data that may contribute to the elucidation of the case, and this duty also extends to third parties appointed by the parties as holders of information and documents.

Both the parties and third parties have little margin for refusal to the production of information and documents, since the rationale is that both parties should have access to the same data - parity of arms – avoiding surprises for both the parties and the judges. Furthermore, the information and documents collected during discovery will not necessarily be used or admitted in trial and, in order to allow the determination of their (in)admissibility/relevance, it is necessary to have access to them.

In Brazil, however, each party is responsible for producing the evidence it deems necessary to prove the facts grounding its claim. Plaintiffs must produce the evidence that constitute their rights; respondents, on the other hand, will present the evidence that extinguish, prevent, or annul claimants’ rights. There is no duty of collaboration between parties (although there is the parties duty to act in good faith).

The opposing party or third parties may be subpoenaed to present information and documents that could aid to elucidate the case, but Brazilian procedural law allows for refusal (provided that duly grounded, under the articles mentioned above). Thus, in deciding whether to grant exequatur, the High Court must consider, on the one hand, whether the formal requirements of the Letter Rogatory have been met and whether there is a duty of international cooperation, and, on the other, whether the foreign order exceeds the limits of Brazilian constitutional and national legislation.

The limitations of Brazilian law in relation to the production of evidence, therefore, may be surprising to American attorneys and parties, but in no way do they prevent the enforcement of decisions issued by American authorities It is paramount, however, that national rules be considered prior to the procedure seeking the exequatur, so that, by analysing the documentation to be requested, the chances of success of the procedure are increased.