The Discovery Procedure and Czech Civil Litigation: A Path to More Effective Evidence-Gathering?

Keywords: discovery; evidence-gathering; disclosure of documents; civil procedure; informational asymmetry; duty to produce documents; duty to clarify

Abstract: This article explores the potential and challenges of introducing the discovery procedure into Czech civil litigation. In Anglo-American legal systems, discovery is a pre-trial phase during which parties may obtain necessary evidence from opposing parties or third parties based on civil procedure rules, using a variety of methods. The article focuses on whether this concept could build upon the existing duty to produce documents under Section 129 of the Czech Code of Civil Procedure and become part of the so-called duty to clarify, which is currently only inferred from case law, although the proposed new Civil Procedure Code aims to codify it explicitly. The article analyses how a similar approach to discovery has already emerged in the Czech legal context in the Act on Compensation for Damage in the Area of Competition Law and in the Act on Collective Civil Proceedings, which includes a procedure for the disclosure of documents. Both examples address situations in which the claimant is often at an evidentiary disadvantage and suffers from informational asymmetry. The article thus reflects on the extent to which this experience could be extended to general civil proceedings and whether an expanded duty to produce documents could help bridge the evidentiary gap in ordinary trial proceedings.