12.6.6 Gathering of information
Without prejudice to the information provided in Section 12.6.8 on confidentiality below, the LEC expressly and extensively deals with parties’ ability to collect information from each other and from third parties in support of their rights.
12.6.6.1 Preliminary proceedings
In the framework of preliminary proceedings,85 prior to and in preparation for court proceedings, a party intending to bring legal action for the infringement of an industrial property right can apply for the exhibition of banking, financial, commercial or customs documents issued within a specific period of time and assumed to be in possession of whom may be sued as liable.
This application must be accompanied by prima facie evidence of the existence of the infringement, which may consist of the presentation of a sample of the specimens, goods or products in which the infringement has occurred.
The applicant may request that the Clerk issue a testimony of the exhibited documents if the served party is unwilling to hand them over for incorporation to the proceedings.
12.6.6.2 Exhibition and production of documents during the proceedings
Once the trial has begun, the plaintiff may seek exhibition of the same documentation described for preliminary proceedings above.
In addition, the LEC establishes a duty of exhibiting documents amongst the parties. Each party may thus seek that the other parties exhibit any documents that are not in their possession and which refer to the matter at issue in the proceedings or the value of the evidence.
There are strict consequences for unjustified failure to comply with this duty, up to the point where a court may, taking into consideration other evidence, attribute probative value to the version such document’s contents may have given, or to a non-certified copy of such document if filed by the applicant for exhibition.
The exhibition of documents by third parties may also be allowed, but subject to greater restrictions.
The exhibition of documents in the possession of non-litigant third parties may only be sought where the court deems that knowledge of such documents is important for the purposes of issuing judgment. The judge must also hold a prior hearing with the third party concerned.