Litigation

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

Pending trial, documents served with the defence are held by the court and remain with the court until the judgment. If the complete file is not available in the court when the final decision is made, the claim is declared inadmissible.

The lawyers, the courts and the arbitrators must preserve all legal documents for three years after the decision has been issued or the matter has ended, pursuant to article 2961 of the Civil Code.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

Declarations or certification released by a public official are considered privileged evidence if they are not declared false after a special proceeding.

Opinions issued by in-house lawyers or third parties can be shown in court but not admitted as evidence.

Legal exchange of correspondence regarding a settlement agreement and correspondence between legal entities expressly referred to as confidential cannot be shown in court. This is sanctioned by article 28, first paragraph of the Forensic Code of Law 2014 (the Code of Conduct for Italian Lawyers), which has been in force since 16 December 2014.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

Prior to trial, the parties do not exchange any documents.

In exceptional cases of urgency (for example, if there is a well-founded fear that a witness may be about to die) parties may request that evidence be taken before the trial begins, or request to verify the status of the sites or the quality or condition of things, and may require a prior technical assessment or judicial inspection.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

Normally, witnesses give oral evidence only. In rare cases, and only if the parties agree, the judge can ask the witness to give written evidence, answering a series of questions posed by the parties and admitted by the judge. The legislature has expressed a wish to introduce compulsory written evidence to try to speed up the proceedings, but to date has not succeeded.

Experts appointed by the parties or by the judge give written evidence and, if necessary, the judge can ask the appointed expert for oral clarification on issues.