UPC CFI, LD Brussels , 14 April 2026 : Expanded cumulative conditions on assessment of production of evidence.

Order to produce evidence within 21 days – application not premature merely because all parties' arguments have not been finalised. (Article 59 UPCA, Rule 190.1 RoP)

The Court must consider the cumulative conditions following from LD The Hague Order of 14 October 2024 (Winnow v Orbisk) when assessing an application to produce evidence. 

Condition 1 - 

The requesting party must have presented evidence “reasonably available” in support of its claims, this assessment is based on a prima facie approach and is twofold : 

(a) Did the Defendants present “reasonable available” evidence to support its underlying assertions (a) and (b)? 

(b) As an implied condition, could the requested evidence enable the Defendants to conclusively prove their assertions (a) and (b). 

Condition 2- 

The evidence to which access is requested must (a) be “specified” and (b) lie in control of the other party. 

Condition 3 (Rule 262A RoP) - 

Other party’s confidential information should be protected 

Condition 4 is assessed on a double level regarding proportionality, equity, and fairness (Article 41(3) , 42 UPCA). 

Condition 4(a) - the “timing” of the application and considering the stage of the proceedings.[…] 

And Condition 4(b)- regarding each individual request as a final assessment. 

Application not premature - 

as a general principle, once an applicant deems that the conditions are met, it can submit a Rule 190 application at any stage of the proceedings.

The grant is based on the position which the defendant will take when complying with the order.

IPPT20260414, UPC CFI, LD Brussels, GC Aesthethics v Establishment Labs