In a recent decision (Ö 4634-0928, April 2011), the Supreme Court considered whether it is possible for a party to obtain, by means of a court order compelling the production of written evidence, access to an expert opinion which its opponent did not want to use in the dispute. In its decision the Supreme Court disagreed with the conclusions of the district court and court of appeals.
The bankruptcy estate of GDS Bil i Stockholm AB i brought an action in the district court for recovery against International Motors (Nordic) AB in accordance with Chapter 4, Section 5 of the Bankruptcy Act. Within the context of this action, International claimed that GDS should be obliged to produce an expert opinion prepared by an authorised public accountant on behalf of its bankruptcy administrator. The expert opinion formed the basis of the bankruptcy administrator's report. Pursuant to Chapter 38, Section 2 of the Code of Judicial Procedure, a party that is in possession of a written document which may be "assumed to be material as evidence" is under a duty to produce the document.
International claimed that the expert opinion could be assumed to be material as evidence with regard to when GDS became insolvent. For its part, GDS argued that the expert opinion did not constitute a document that was generally covered by the duty to produce documents. Clearly, the materiality as evidence of an opinion containing details of when GDS became insolvent could be assumed within the context of an action for recovery pursuant to Chapter 4, Section 5 of the Bankruptcy Act.
The Supreme Court noted that the purpose of this discovery rule is to ensure that a party which requires a document for evidentiary purposes can access the written document. Ultimately, it is intended to ensure that a party can protect its interests by means of an order compelling discovery based on a legitimate interest in evidence. The Supreme Court further stated that an expert opinion normally does not constitute written evidence, since the expert's observations are based on an assignment from the client and "the information he may provide is by its nature replaceable". The court went on to explain that "[k]nowledge of the facts in question could, in principle, thus have been obtained by engaging someone else with comparable expertise to perform an identical engagement".
The main rule may thus be deemed to be that an expert opinion does not constitute written evidence and thus is not covered by the duty to produce in accordance with Chapter 38, Section 2 of the Code of Judicial Procedure. However, it was also noted that there are grey areas which may make a determination difficult. One situation contemplated by the Supreme Court in which an expert opinion may be regarded as constituting a written document and may thus be covered by the duty to produce is where the expert's observations, due to specific circumstances, are or become unique in the sense that their evidentiary weight cannot be gained in any other way. The court cited the example of audited accounts which have disappeared. In such circumstances, the expert would be under a duty to testify, and a written opinion on the observation would similarly be deemed to constitute written evidence within the meaning of Chapter 38, Section 2. In this case, no facts were asserted which suggested that information in the requested expert opinion could be proven only by means of such opinion. The motion for an order compelling the production of written evidence was thus denied.
Situations in which expert observations are unique are generally rare. Accordingly, and in keeping with precedent, the actual result of the decision of the Supreme Court is that it will be highly unusual for an expert opinion to be found to constitute written evidence and thus be covered by the duty to produce.
For further information on this topic please contact Björn Tude or Pontus Scherp at Gernandt & Danielsson Advokatbyrå by telephone (+46 8 670 66 00), fax (+46 8 662 61 01) or email ([email protected] or [email protected]).