LitigationEvidence – documents
Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?
Parties are not normally obliged to retain documents before the start of litigation. However, if there is a risk that evidence may be lost or difficult to obtain and no trial is pending, a request may under limited conditions be made to a court in order to preserve evidence for the future. A person obliged to produce documents may be compelled to do so under penalty of a fine. Destroying, rendering unserviceable or concealing documents after a request for preservation of evidence has been made are actions sanctioned with a fine or imprisonment of up to four years. Concerning electronic documents, such a sanction is only possible when the document has a sign of origin that can be reliably controlled.
As a general rule, the parties are not required to share relevant documents or information. However, a party may request the court to order its counterparty to provide documents if:
- the counterparty is in possession of documents that it is assumed to be of importance as evidence in the particular case; and
- the request is limited to certain documents, a certain category of documents or to all documents that are relevant to a clearly described and specified theme of proof.
In addition, the court shall consider the importance the documents might have as evidence in relation to the counterparty’s interest in not disclosing the documents. Thus, a request for documents will be granted only if the court finds the request proportionate having considered the parties’ opposite interests. The production of documents may also be ordered by the court in relation to third parties.Evidence – privilege
Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?
Documents covered by legal privilege can be withheld from the opponent and the court. Legal privilege applies to documents that originate from, for example, advocates and their counsel, physicians, dentists, midwives and trained nurses, and that contain information entrusted to or discovered by them in their professional capacity. In this respect it should be noted that advice from in-house lawyers is not protected by privilege.
Furthermore, it is possible for a party to withhold documents that would involve disclosure of trade secrets, unless there is an extraordinary reason requiring disclosure of the document. As a general rule, personal notes produced exclusively for private use are also excluded. This principle has been extended in court practice to also include notes prepared exclusively for a company’s internal use.Evidence – pretrial
Do parties exchange written evidence from witnesses and experts prior to trial?
The Swedish Code of Judicial Procedure is based on the principle of orality. This means that the main rule is that witnesses do not provide the court with a written witness statement, but appear in person for the examination. In fact, written witness statements are only allowed under particular circumstances, namely if:
- it is specifically authorised by law;
- the examination of the witness cannot be held at, or outside, the main hearing, or otherwise before the court; or
- there are special reasons with regard to the costs, or the inconvenience that an examination at, or outside, the main hearing assumingly implies.
In addition, written witness statements may be allowed if the parties so agree and the court does not find this manifestly inappropriate. It should be noted that the courts tend to give written witness statements less value than an oral testimony before the court. However, in case of an application for interim measures, written witness statements are allowed and often relied on by the court.
Instead of having written witness statements, the parties are required to state in their submissions which witnesses they invoke, what the witness will testify about and what circumstances the witness shall prove. Except for the aforesaid, the content of the witness evidence does not have to be exchanged prior to examination of the witness at the main hearing.
Experts shall, unless the court prescribes otherwise, submit a written opinion to the court. After the opinion is submitted, it shall be held accessible to the parties. The expert’s evidence shall cover the task assigned to him or her by the court or a party. There are no restrictions regarding what type of evidence the expert may give. However, the expert report must contain information that is relevant for the case.Evidence – trial
How is evidence presented at trial? Do witnesses and experts give oral evidence?
Witnesses give evidence orally at trial where they may be subject to cross-examination. The examination is left in the hands of the parties, starting with the party who has invoked the witness, followed by a cross-examination by the opposing party. The party who has invoked the witness may thereafter ask additional questions for clarification purposes (subject to the cross-examination), if permitted by the court. The court may ask additional questions to the witness, preferably only for clarification purposes.
At trial, the witness has to take an oath. A witness who refuses to take the oath may be fined or put in custody. Witnesses who give false information or withhold the truth may be sentenced to a fine or imprisonment (maximum four years).
It is possible to hear a witness via teleconference or videoconference if the court finds it appropriate and the parties and the witness consent thereto.
An expert shall give evidence orally at trial if a party requests it and the examination of the expert is not without importance, or if the court otherwise finds it necessary. If an expert gives evidence at trial, the same rules as for witnesses apply (see ‘Witnesses’, above). However, it should be noted that an expert cannot be put in custody for refusing to take an oath, but he or she may be fined.