The early production of electronic evidence must be founded on concrete fear

Division C of the National Court of Appeals in Civil Matters dismissed a request made by the plaintiff in a case which sought to secure an expert opinion on the authenticity of an e-mail before the defendant was made aware of the existence of the legal proceeding (National Court of Appeals in Civil Matters, Division C,.” Pollastrini, Guido Oscar v. Prisma Medios de Pago S.A. and other”, Docket No. 2623/16, decision dated April 19, 2016).

In this case, the plaintiff filed a motion for the early production of evidence consisting of an expert opinion on an e-mail which it claimed to have received from the defendant. It invoked Section 326 of the Civil and Commercial Procedural Code on early production of proof dealing with preliminary measures. The court of first instance refused the request. The plaintiff appealed.

The Court of Appeals confirmed the lower court’s decision. In doing so, it made a clear distinction between preliminary measures which are available in preparation for the legal process and those which seek to safeguard or produce evidence in advance. It held that the plaintiff’s petition fell within the latter category, which is exceptional by nature. The ruling further stated that early production of evidence must be based on founded fears regarding the viability of production at a later date. Consequently, a hypothetical fear or a fear based on speculation is insufficient. The plaintiff must demonstrate that there are concrete and objective reasons to fear that it will be impossible or very difficult to produce the evidence at the proper procedural stage. 

On this basis, the Court held that the plaintiff had not provided elements which founded a concrete fear and confirmed the prior ruling. This decision relates to recent discussions regarding the procedural mechanism for early production of evidence and its implementation for electronic documents. As electronic documentation becomes more important, requests based on concerns for its vulnerability are appearing. This, in turn, led to considerations on the exceptional nature of early production of evidence, and its relation to electronic documents.