In an earlier post, I interviewed Patricia Veronica Castaño about litigation in Argentina. During our interview, I learned that there is no pre-trial exchange of evidence in Argentine litigation, but that there can be early evidentiary proceedings. I was intrigued about what those proceedings were like, and so I spoke to Enrique Maria Tourvel Munilla, the head of litigation at DS Navarro Castex Abogados in Buenos Aires to learn more.

Why should you continue reading this post about evidentiary proceedings in Argentina?

You are interested in learning more about the world’s largest country’s complex legal system
This blog’s first post about Chinese litigation left you in intolerable suspense
You have a trial that starts in a Chinese courtroom in fifteen minutes and you are scrambling to find information on the internet in English on what’s about to happen

Enrique Maria Tourvel Munilla is the head of litigation at DS Navarro Castex Abogados in Buenos Aires. This interview has been lightly edited.

So how can a litigant obtain evidence from another party before trial in Argentina?

Our national procedure system (or Procedure Code) establishes two big ways of producing evidence before trial, even though both of them requires the involvement of the judge and, in one of them, of the counterparty also.

These two ways are: "Preliminary Diligences" ("Diligencias Preliminares") and "Anticipated Proof" ("Prueba Anticipada").

What are the differences between those two methods?

There are two main differences between Preliminary Diligences and Anticipated Proof.

One big difference is in the purpose of these methods. The object of the Preliminary Diligences is the production of evidence that is necessary to file the lawsuit. The object of the Anticipated Proof is to ensure to the Court that the evidence will not disappear before trial.

Another fundamental difference between them is that the Preliminary Diligence does not require the involvement or notification of the counterparty, while the Anticipated Proof procedure requires the participation of the counterparty.

What does a litigant need to do in order to make a Preliminary Diligence petition?

Our National Procedure Code establishes some cases in which this petition proceeds, but the admission of this petition is not fixed to them.

The petition could be admitted if the presenter proves the necessity of the evidence for the commencement of the lawsuit. For example, our National Procedure Code rules that the lawsuit must contain the amount claimed when it is possible to determine it. If the impossibility of the determination derives from some information held by a third party - a bank for example- and the attempts to obtain this information were thwarted, the judge can order the bank to give this information to the plaintiff so he can establish precisely the amount claimed.

The Anticipated Proof

This procedure requires the participation of the counterparty. There are four cases where this petition proceeds:

to ask for the deposition of a witness that will leave the country, or he is of advanced age, or that is seriously ill;
to request a judicial recognition of documents or sites in their current condition;
to ask for reports that leads to information that could then disappear (companies and traders are obliged to maintain accounting documents for 10 years in Argentina, if the plaintiff can convince the judge that when arriving to the evidence period this information could not exist anymore, then this petition could be admitted);
the exhibition, safeguarding or seizure of documents.

This petition to court is essential in our country due to the long time that trials should take. Sometimes, during this period, some information could be destroyed, disappeared or simply modified by the passage of time. We can bring this action to avoid these undesirables consequences.

Do parties make these petitions in writing or orally?

Most of our legal civil and commercial system haven't adopted yet the oral way, we still submit every petition in writing. Then, in compliance with the requirements for each of the measures, we must draw up a court file and submit the request in writing to the judge.

With the Preliminary Diligence petition, the submitter must allege that the information he is asking for is necessary to file the suit and cannot be obtained other way. For the Anticipated Proofs, the petitioner must prove that the evidence that he is asking for may be destroyed or impossible to produce in the pertinent time of the trial.

Does the opposing side write a response?

With regard to the Preliminary Diligences, there is no intervention from the opposite side, who would only get involved when the principal lawsuit is submitted, after this abbreviated process.

Anticipated Proofs require the participation of the opposing party, since the evidence collected - under normal circumstances - should be done during the trial process and with the control of both parties.

Image credit: https://commons.wikimedia.org/wiki/File:Palacio_de_Tribunales_I_Córdoba_(Argentina)_2006-01-12.jpg

How long does it take the judge to decide these applications?

The judge must decide upon the filing of the petition by the petitioner. This should take between 5 to 10 days.

Do these applications require sworn statements from witnesses?

No, they do not.

How often do courts grant these applications? Are they hard to get? Are they common or unusual?

The interpretation of the applicable rules is extremely restrictive. They are hard to get and really unusual.

Do business people take efforts to prevent emails and other documents from being subject to these orders?

The truth is that they do not have much room for maneuver to avoid the judge's order. As far as emails are concerned, in our legal system, correspondence is constitutionally protected, so it would not be possible to ask for an expert opinion on emails that the party did not participate in.

Once you get the evidence, are there rules about keeping it confidential or private?

No, there are not. The limitation of the evidence presented will be directly related to the issue at hand. As a general rule, commercial proceedings in Argentina are open to the public, but there are exceptions that may lead to their restriction.

Gathering and Preserving Evidence in Litigation in Argentina