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Right of Information: Preserving Evidence for Future Legal Proceedings

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In the event that evidence is at risk of being lost or difficult to obtain, and no legal proceedings are currently pending, courts may take steps to preserve the evidence for future use. This can include witness examinations, expert opinions, and documentary evidence.

Preserving Evidence in the Absence of Legal Proceedings

Such measures are often sought in cases where a potential witness is terminally ill and has a limited life expectancy. While there is no published case law on this topic, it is reasonable to assume that similar rules would apply in less typical situations, such as when someone attempts to destroy or suppress evidence.

Limitations of Preserving Evidence

However, the rules for taking evidence for future legal proceedings are unlikely to be effective in cases where they cannot be applied ex parte. In addition, these measures are relatively rarely relied upon, and different rules may apply if legal proceedings are already pending.

Discovery

In cases where legal proceedings have been initiated, general discovery rules may be relied upon to obtain documentary evidence. However, the purpose of discovery is not to preserve documents per se, but rather to obtain evidence from the opposing party. A document production order will only be granted when a party can convince the court of the specific evidentiary value of a particular document in the pending proceedings.

Exemptions from Disclosure Obligation

There are several exemptions from the disclosure obligation, including:

• Correspondence between close family members
• Legal professional privilege
• Self-incriminating documents
• Personal notes
• Trade secret information

Party-Conducted Search at Defendant’s Premises

In civil cases, there are no rules that would allow a party to conduct a search at the defendant’s premises or seize evidence itself. In intellectual property cases, such searches must be exercised through the Enforcement Authority.

Criminal Proceedings

Different rules apply in criminal proceedings, which give law enforcement authorities wide powers to secure evidence. For example:

• Transcripts from early interrogations with suspects and witnesses may be used during the main hearing

Unlawful Suppression of Evidence

Under Swedish law, the deliberate destruction or suppression of documentary evidence is punishable.

Conclusion

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This article has been contributed by Simon Arvmyren and Sverker Bonde of Delphi.