Article 59

Order to produce evidence

1.   At the request of a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the control of the opposing party or a third party, the Court may order the opposing party or a third party to present such evidence, subject to the protection of confidential information. Such order shall not result in an obligation of self-incrimination.

2.   At the request of a party the Court may order, under the same conditions as specified in paragraph 1, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.

Case Law

Court of Appeal

IPPT20240924, UPC CoA, Guangdong OPPO v Panasonic
Appeal against order rejecting a request for production of evidence admissible (R. 220.1(c) RoP, Article 59 UPCA). It does not matter whether the impugned order grants or rejects the request for production of evidence. On a proper interpretation of R.220.1(c) RoP, it should be understood as: “orders on applications referred to in …”. Order to produce evidence is not only open to a claimant, but also to a defendant, such as in the present case, an order to produce (counter)-evidence. (Article 59 UPCA, Rule 190 RoP, Article 6 Enforcement Directive). In case of a FRAND-defence an order to produce evidence (R. 190 RoP) must strike a balance between the defendant’s interest in obtaining evidence which may be useful for its FRAND-defence, and the interest of the other party and its contracting parties in protecting confidential information. Disclosure of evidence to be limited to what - at the discretion of the court – is strictly relevant, proportionate and necessary. Margin of discretion includes decision-making on the request in accordance with what the judge-rapporteur, the presiding judge or the panel has decided on the order in which issues are to be decided pursuant to R.334(e) RoP. The assessment of a request for an order to produce evidence may depend on the stage of the proceedings. Such a request may be considered not to meet the criteria of necessity, relevance and proportionality at one stage of the proceedings, but could be considered to meet those criteria at a later stage.