Early Production of Evidence: A Remarkable Tool in Brazil

An effective civil procedure system that provides society with the recognition and protection of their rights is crucial to maintaining the constitutional guarantees of a democratic state of law. The enactment of a modern Brazilian Civil Procedure Code in 2015 has had, beyond other important issues, a noble motivation: to create and provide effective judicial procedures to avoid increasing litigious lawsuits – including inconsistent cases or even frivolous ones – that could be solved without expensive and lengthy proceedings such as available conflict resolution mechanisms.      

One innovative legal mechanism that rises from this context is the procedure for gathering evidence before the party decides to file for a lawsuit, denominated early production of evidence.

In the previous Civil Procedure Code, the party could only ask for early production of evidence within the proper preparatory lawsuit in course as an injunction request, having proved urgency (therefore being obliged to file for its main lawsuit in the next 30 days). Conversely, early production of evidence allows the interested party to request the judge to order the counterparty to present specific evidence, which can be any provided by law, in an autonomous proceeding not bound to any other and without necessarily proving any urgency. The proof of urgency (such as the risk of perishing of evidence) is only one of three different hypotheses provided by law; it is no longer a mandatory legal requirement.

The early production of evidence under the terms of the Brazilian Civil Procedure Code of 2015 is not a litigious proceeding, so the judge in charge will make no value judgment of the facts and evidence provided during the court proceeding.  

After the conclusion of the proceeding and in light of the evidence provided, the interested party will analyse and decide whether there is a consistent case to be filed before the judiciary. Note that the filing of the main action by the interested party that chooses to file for early production of evidence is not mandatory.

Under the Brazilian Civil Procedure Code of 2015, the (early) production of evidence gained the status of “autonomous right” precisely because it does not depend on a “main lawsuit” to be produced. Also, this innovative legal mechanism has been inspired by some of the characteristics of the discovery proceeding widely used under Anglo-Saxon law.

Despite the fact that the early production of evidence is not a litigious lawsuit and that the judge in charge shall make no value judgment of the facts and evidence provided during the proceeding, the interested party should necessarily present the reasons that justify the need to obtain the evidence requested and precisely indicate the facts to which the evidence is related. 

This legal requirement is important to avoid distorting the purpose of the early production of evidence, therefore avoiding illegal attempts to generically explore the facts exposed with the intention of finding anything that could justify the filing of a future lawsuit. This prohibited practice is known as “document hunting” or a “fishing expedition”.

Beyond that, as already mentioned above, the interested party should demonstrate that the early production of evidence is needed on at least one of three grounds:

Like the discovery stage within a lawsuit, the early production of evidence allows the production of expert evidence, the hearing of witnesses and the opposing party, in addition to access to documents.

According to the legal provision, once the production of the requested evidence is ordered by the judge, no defence may be presented or appeal filed by the counterparty (because of the non-litigious nature of the measure). Nonetheless, it is important to mention that recent court decisions are establishing exceptions to this this legal restriction.

In January 2023, one of the biggest retail companies in Brazil published a material fact informing the market and its shareholders that it had identified accounting inconsistencies in the company’s financial statements involving at least BRL 20 billion.

One day after the material fact was published, the company filed a provisional injunction to try to suspend the enforceability of certain obligations related to its financial and debt instruments. Such request was granted on 13 January 2023. Shortly after, on 19 January, the company filed for bankruptcy protection appointing total debts of approximately BRL 40 billion.

In reaction to the material fact that raised the accounting inconsistencies, some of the biggest creditors immediately filed several early production of evidence actions requesting access to different documents and electronic messages involving the officers of the company. In doing so, they sought to become aware of the facts and identify the parties responsible for the inconsistencies in the company’s financial statements, in order to use the evidence gathered to possibly file an indemnification action in the future.

Despite the fact that the requests were a bit too wide and generic, at least two of them were granted giving the creditors access to the email boxes of the officers and documents of the company. The Appellate Court of São Paulo maintained such orders.

However, the Brazilian Federal Supreme Court has granted an injunction requested by the retail company to suspend access to the mailboxes of the company’s officers on the grounds that the lower court order violated the confidentiality that protects the communication between the company, its officers and their lawyers. Already under analysis is a request to limit the effects of this injunction, applying it only to the messages regarding legal advice.

A few other early production of evidence actions filed by different creditors contained more specific and restricted requests, which were also granted without violation of any confidentiality rights.

The early production of evidence action is an important tool inserted in the Brazilian legal system because, as the examples mentioned above demonstrate, alongside the courts’ control of the proceeding to ensure compliance with legality, it allows the parties to gather evidence regarding the facts involved in a certain context, in order to increase their knowledge and assessment of their rights – and therefore their chances of success – prior to deciding whether to file the main lawsuit or execute an agreement to settle the dispute.

This was exactly the legislature’s intent when creating and passing the bill to the Brazilian Civil Procedure Code in 2015.