I OVERVIEW

Discovery is defined as 'compulsory disclosure, at a party's request, of information that relates to the litigation'.2 This pretrial stage consists of requests for admission of certain facts, performance of interrogatories, requests for production of documents and depositions, among others. The aim of this procedure is to avoid 'surprise evidence' at trial, but it can also encourage settlement.

In Argentina, this process is neither available nor regulated. The process for the offering and collection of evidence, including electronically stored information (ESI), is a matter subject to judicial control. Upon filing and responding to a judicial complaint, each of the parties has the right to offer and produce, within the judicial file and under the court's direction and control, the evidence it deems necessary and appropriate to prove its statement and justify its arguments. In this scenario, a party may resort to broad means of proof, including documents or information held by the counterparty or even by third parties.

The above, however, does not preclude the rights of a party to collect or produce the necessary evidence (including ESI) prior to the formal commencement of a litigation or the allocated time for evidence to be produced in a litigation. Regulations regarding different forms of obtaining pretrial evidence are contained in each province's procedural code.3 Although every province has its own particularities, most procedural codes recognise three ways in which a plaintiff (or a defendant, when applicable) may require the production of evidence prior to a litigation: preliminary investigations, anticipated proof and interim measures. The decision in each instance must be authorised by the court.

Preliminary investigations are available for those who intend to sue or who, with reasonable grounds, expect to be sued.4 They provide the opportunity to obtain certain information needed for the claim or the response, without which the process could not take place. Although this measure is requested prior to the trial (which is the same for discovery), it is always requested before a court of law. If it is possible to obtain the information through extrajudicial means, the request for preliminary investigations shall not proceed.

Even though each procedural code mentions different situations in which preliminary investigations can be requested, case law has recognised that those are only examples, and that any similar measure requested to comply with the aim of the procedure may be granted by the judge if it is needed for the claim or response, as applicable. The plaintiff in a case concerning inheritance, for example, may request that a will be exhibited if he or she believes that he or she is an heir and there is no way of obtaining the will without going to the courts. This amounts to a preliminary investigation.

Anticipated proof may be requested by a party that is or will be part of a claim and has justified reasons to believe that it will be impossible or very difficult to produce evidence during the litigation.5 The National Procedural Code (Article 326(2)) provides that anticipated proof can be requested to obtain 'judicial recognition or an expert opinion to record the existence of documents, or the status, quality or condition of things or places'. Additionally, subsection 4 states that 'the exhibition, safekeeping or seizure of documents concerning the object of the claim' can also be requested. In both cases, ESI can be requested through the use of this procedure. Anticipated proof means that the plaintiff can obtain evidence outside the usual time frame (that is, after filing or responding to a claim), which can then be preserved. It is a measure that is permitted in exceptional circumstances and only when deemed essential. The request for anticipated proof is also usually granted without the prior involvement or participation of the counterparty.

Finally, interim measures may be requested before or after a claim is filed, and aim to protect a party's assets, rights or proof when it is not possible to wait for the final resolution of the claim to obtain them (e.g., in a case concerning construction, a party may request the court to suspend the work being done if, by the time the resolution is final, the damage will be irreparable).6 They are usually granted without the prior involvement and participation of the counterparty.

Regarding payment of costs, although there are some exceptions, the losing party shall pay all costs and fees related to the claim,7 including all measures requested by the winning party.

II YEAR IN REVIEW

No change in legislation regarding ESI is expected to happen in the near future. Nevertheless, each year additional case law dealing with different forms of ESI is established and, in particular, with different ways of ensuring its access and preservation. Courts have been setting a trend that allows a more flexible interpretation regarding ESI, which equates the effects of ESI with those of written documents.

A few years ago, courts were more reluctant to give full evidential value to different forms of ESI (e.g., emails or text messages). In a case in 2007, the National Commercial Court of Appeals8 stated that an email that did not comply with the requirements set forth in the Digital Signature Law9 could not be given evidential value, because the authentication provided by the digital signature was essential.

In recent years, courts have been more flexible with their interpretation of ESI as a means of proof.10 In a case in 2014, the court decided that 'if the email has been sent without an electronic signature, the court must weigh it according to the rules of rational criticism, taking into account whether it has been recognised or not by the party against whom it is intended to assert; if an informatics analysis has been carried out in that case to demonstrate its authenticity and inalterability determining the date of sending, sender, recipient, attachments, etc.'.11 Therefore, the incorporation of a digital signature has become less important when determining the evidential value of an email (or any other ESI) – it has been recognised that the key factors to consider are authenticity and lack of alteration. Experts that are able to assess whether ESI has been tampered with or if it is authentic have been allocated more important roles by the courts.

Case law has also been establishing the requirements for ESI to be disclosed before trial through one of the three methods of pretrial production of evidence mentioned in Section I. The argument that the opposing party is in a position to hide or destroy certain documents is not sufficient for a court to grant and allow the production of anticipated proof. It is necessary to demonstrate, at least summarily, that the party intends, or has indicated its intention, to do so, especially if the party requesting disclosure seeks a surprise seizure of documents or ESI.12

III CONTROL AND PRESERVATION

There are no specific rules regarding control in the context of ESI, therefore general procedural rules apply. These rules state that a court must order a party in possession of evidence to produce it within a specific time.13 If the party does not produce the evidence and does not provide a sound reason and, based on other elements of judgement, the existence of the evidence and its content are manifestly credible, there will be a presumption of guilt. The concealment of evidence can be considered proof that the evidence exists. In certain cases, the non-disclosure can be justified, for example, because of attorney–client privilege (see Section V).

Adverse inferences are the only sanctions that the law applies to parties that do not produce – or preserve – evidence under their control, when required to do so. Parties are not subject to a duty (failure of which would be penalised) or an obligation (compliance with which could be coercively demanded by the other party), but they are constrained by a procedural burden of good faith and collaboration in the production of evidence, which governs the entire litigation process and, specifically, the preservation and production of evidence that could be in the parties' control. If this procedural burden is breached, it could mean that the party in question is deemed to have evidence that is harmful to its case.14

Case law has stated that procedural law fails to impose on the parties duties and procedural obligations, but places the emphasis on the burden of proof. The burden of proof is a procedural notion that enables the judge to evaluate the evidence to decide a case when there is no certainty about the facts that should be the basis of the decision. It also establishes which of the parties is interested in proving the facts in order to avoid unfavourable consequences.15

Preservation of ESI is a complex subject. Although Argentine legislation does not have any specific rule determining the length of time that ESI must be kept, the Civil and Commercial Code16 stipulates that, in general, documents should be preserved for 10 years. Therefore, it is reasonable to assume that ESI should also be preserved for 10 years. Preservation not only implies not destroying the records, but also maintaining them so that they do not suffer deterioration due to the passage of time or exposure to any harmful elements, allowing them to be consulted or made available if required. With regard to ESI, it will be necessary to guarantee its authenticity, so that the origin of the information is certain.17

IV REQUESTS AND SCOPE

Even though the parties to a lawsuit are not obliged to meet in the context of disclosure of ESI that may be useful for a lawsuit (nor are there lists drawn up to obtain the information), there are certain rules that parties should abide by regarding the request for and scope of the production of evidence. These rules would apply to ESI.

The first rule is the duty to offer evidence on time. In every lawsuit, the parties must file the documentary evidence on which their case is based. The law explicitly establishes that the documentation the parties possess must be submitted by them when filing the complaint or upon answering the complaint, as applicable. This duty forbids the parties from submitting documentation at other times, unless it refers to documentation that has come to their attention later in the process. They must stipulate under oath or in a statement that they had no knowledge of it when the claim started.18 If, according to reasonable criteria, the existence and contents of the documents are credible, failure to present them will result in a presumption that they are harmful to the party's case.19

Moreover, when the documentary evidence is not available, the party in question must provide a description of it, including its contents, location and details of the public agency or individual holding it.

The second rule is the duty to present the essential documents for the resolution of the dispute. Article 387 of the Civil and Commercial Code provides that: 'The parties and third parties who have essential documents for the resolution of the dispute shall be obliged to present them or to indicate the notarial record or file where the original documents are kept.'

Regarding documents in the possession of third parties, Article 387 provides (as a general principle that also applies to ESI) that third parties shall be sent a notice of demand to present the documents, and that those parties may (1) present the documents requested at trial or (2) object to their presentation if the documents are exclusively owned by them and disclosure may cause them harm. In the latter case, the notice of demand may be dismissed and the third party may be released from the duty to present documents if the objection is duly grounded.20

The third rule relates to the burden of proof, construed as the legal principle that determines who is obliged to prove a certain fact before the court. The general principle21 is that the burden of proof shall be borne by the party affirming the existence of a controversial fact or of a legal provision that the court does not have a duty to know (excluding, therefore, the applicable law). Each party must prove the facts on which it is grounding its claim, defence or motion. Because of this duty (as provided by civil procedure), the powers of the court to order evidence, on its own initiative, are exceptional and incidental.

However, when establishing the applicable principles for civil liability, Article 1735 of the Civil and Commercial Code provides that 'the judge may distribute the burden of proof or, having acted with due diligence, may consider which party is in a better position to provide it.'22 This Article includes the principle of dynamic burden of proof, which means that, exceptionally and taking into account the circumstances of each case, the court may shift the burden of proof to the party that is in a better position to provide evidence, or, if there is little or no evidence, to the party that is in a better position to prove the facts of its case.

V REVIEW AND PRODUCTION

The use of advanced analytical tools is not prevalent in the analysis, review and production of evidence.

Communications between a lawyer and his or her client are protected by attorney–client privilege, which is found in different laws, procedural codes and the Constitution. Attorney–client privilege is very strict and provides lawyers with many tools to avoid being forced to produce evidence in their power delivered to them by their clients, subject to the fact that they were acting as their attorneys.

For example, in a very famous case in Argentina, a lawyer filed a claim to declare the unconstitutionality of a law and its regulatory decree that imposed an obligation for telephone companies to record certain information in telephone communications. His arguments included that this constituted a violation of his rights to privacy, but also that it harmed the privilege of confidentiality that, as a lawyer, he holds in communications with his clients. The Supreme Court ratified the decision taken by the lower courts and stated that this legislation was in fact unconstitutional as it did not respect the right to privacy and professional secrecy.

A lawyer is only permitted to reveal information when (1) the client allows him or her to do so, (2) when the information is necessary for the attorney's own defence and (3) when a competent judge authorises the attorney to reveal it, for reasons that must be expressly indicated and assessed. If the lawyer produces the privileged information and one of the above exceptions does not apply, he or she will be subject to penalties. The court must not, however, take it into account when deciding on the matter.

The work-product doctrine does not exist in Argentina. However, we believe that a lawyer's work-product is protected by attorney–client privilege. If a lawyer is requested to produce his or her work-product in a trial, the same protection granted for communications must apply as the work-product originated from the information provided by the client.

As mentioned in Section III, the court determines the time frame within which parties must produce the evidence. According to the National Procedural Code, the time frame should not exceed 40 working days. In practice, however, it lasts much longer as the courts extend it as long as is necessary to have all the proposed evidence duly produced.

As stated in Section IV, only evidence that is directly related and essential to the case can be offered in trial. If evidence is protected under contractual or legal confidentiality, or if the type of evidence being brought is not admitted by the law or cannot be admitted for procedural reasons, then a party can challenge the production of it. Additionally, a party may argue that the evidence produced is against public policy or morals and request that it be considered 'confidential' and only made available to the involved parties.

If a party fails to comply with these obligations, which would also apply to ESI, then the court may impose progressive pecuniary sanctions aimed at ensuring that the party complies with its mandate. The amount of the sanctions will be determined by the court in favour of the party affected by the breach.

VI PRIVACY ISSUES

The Data Protection Law23 defines personal data as information of any type that refers to determined or determinable natural or legal persons.24 If ESI to be disclosed contains personal data, then the Data Protection Law and its regulatory decree25 are applicable.

Handling of personal data always requires the consent of the data owner. One of the exceptions set forth in the Data Protection Law is when the personal data is collected for the exercise of functions proper to the powers of the state or by virtue of a legal obligation. When the handling of personal data is required under one of the three methods of obtaining pretrial evidence (see Section I), the court will exercise its judicial power to request it. The consent of the data owner is not required in these cases.

Regarding cross-border transfers, the Data Protection Law states that the transfer of personal data (of any kind) with countries or international or supranational organisations that do not provide adequate levels of protection is prohibited. However, if the cross-border transfer is requested as part of an international judicial cooperation process, the prohibition will not apply.

If an Argentine party wishes to produce evidence that has been requested internationally, it must ensure that the evidence complies with Argentine law.

Additionally, the Confidentiality Law26 states that individuals or legal entities may prevent information that is legitimately under their control from being disclosed to third parties, or acquired or used by third parties in a manner contrary to honest commercial practices, provided that the information (1) is confidential, in the sense that it is not generally known or easily accessible to persons in that field of work, (2) has commercial value because it is confidential and (3) the person who controls it has taken reasonable measures to keep it confidential. ESI is specifically considered when the Law details how 'confidential information' can be stored.

VII OUTLOOK AND CONCLUSIONS

Although it is unlikely that any specific law regarding ESI – or disclosure as part of procedural law – will be passed in the coming years, the laws regarding production and preservation of evidence need to be updated to cover all measures that can be used in litigation. Courts have been updating the cases where ESI can be produced in the past years, since they are the ones that are presented with real cases and have the need to protect plaintiffs and defendants requesting their collaboration regarding preservation and production of ESI, mainly when it is under the other party's control.

It is expected that the rules applicable to pretrial production of evidence will continue to be made more flexible, as a lot of information is now stored electronically and a delay in its production can mean that evidence is lost.


Footnotes

1 Adrián Furman and Martín Torres Girotti are partners, and Catalina Malara is an associate, at Bomchil.

2 Black's Law Dictionary (Seventh Edition), p. 478.

3 Under Argentine law, each province has its own procedural code. However, the Civil and Commercial Code applies to all provinces.

4 Article 323, National Procedural Code.

5 Article 326, National Procedural Code.

6 Articles 195 et seq., National Procedural Code.

7 Article 68, National Procedural Code.

8 National Commercial Court of Appeals, Chamber D, 16 February 2007, Henry Hirschen y Cía SA v. Easy Argentina SRL.

9 Law 25,506.

10 Molina Quiroga, Eduardo, 'Evolución de la jurisprudencia en Derecho Informático', SJA 11 July 2018.

11 Civil and Commercial Court of Appeals of Córdoba, First Chamber, 22 May 2014, Pisanu, Juan Mauro v. Carteluz SRL s/ ordinario Otros.

12 Scotti, Héctor Jorge, 'Una interesante resolución en materia de prueba anticipada'.

13 Article 387 et seq., National Procedural Code.

14 Código Procesal Civil y Comercial de la Nación: Comentado y Anotado, Kielmanovich, Jorge L.

15 National Commercial Court of Appeals, Chamber C, Bellini, Gabriel y otro v. Lee, José L, 26 May 1995.

16 Article 328, Civil and Commercial Code.

17 Comments on Article 328, Civil and Commercial Code. Marisa Herrera, Gustavo Caramelo and
Sebastián Picasso.

18 Código Procesal Civil y Comercial de la Nación: Concordado con los códigos provinciales. Análisis doctrinal y jurisprudencial, Elena I Highton – Beatriz A Areán, Volume 6, p. 381.

19 Article 388, National Procedural Code.

20 id., footnote 14.

21 Article 377, National Procedural Code.

22 Article 1735.

23 Law 25,326.

24 Article 2.

25 Regulatory Decree 1558/2001.

26 Law 24,766.