The Discovery of Evidence Introduced by the New Code of Civil Procedure of Panama

Published on Aug 28, 2024

Our lawyers in Panama, experts in Litigation, share with us this article on the "Disclosure of Evidence", known as "Discovery" in common law. This concept, a novel addition in the new Civil Procedure Code, will come into force in October 2025.   

 

Before delving into the topic, it is important to explain that the disclosure of evidence, or discovery, is a concept derived from Anglo-Saxon Law. It involves a formal procedure conducted prior to the beginning of a trial, where the parties involved (plaintiff and defendant) prepare their case by exchanging information about the evidence and/or witnesses that they will present. This process allows each party to anticipate the evidence the opposing party will introduce and aims to prevent surprises from evidence that might have been concealed or withheld. Essentially, the goal is for all evidence to be disclosed before the trial begins, enabling each party to develop their legal strategy without unexpected obstacles, thus ensuring the process progresses smoothly and efficiently. 

 

The new Code of Civil Procedure, adopted by Law 402 on October 9, 2023, specifies in Title II, Chapter III, Section 1ª, that any attorney duly authorized within the process may request from the opposing party, up to ten days before the preliminary hearing, the disclosure of information and the provision of documents.  

 

The means for such disclosure of evidence are the following: 

 

  • Affidavits by means of oral or written questions, 

  • Written interrogatories addressed to the parties, 

  • Provision and exhibition of documents and other objects,  

  • Permission to enter land and other property for the purpose of inspection and for other purposes,  

  • Physical or mental examinations,  

  • Request for admission of facts and recognition of things or documents related to the subject matter of the proceeding.  

 

This disclosure of evidence may be conducted between the parties involved in the process, without the need for judicial intervention, except for the circumstances stipulated by the code. 

 

The new regulations specify the matters that are subject to disclosure, which we can mention the following: 

 

  • The existence, description, nature, custody, condition, and location of any books, papers, and other objects and documents, whether maintained in physical, digital, or electronic form and whether in the possession, custody, or control of the requested party.  

  • The identification and contact details of all persons with knowledge of any matter subject to disclosure, including whether they will testify as witnesses at trial, and specifying in each case if they will be called to testify. 

  • The calculation of the claimed amount and all supporting documents or evidence, including all documents substantiating the extent and amount of damages claimed. 

  • The identification of all documents or evidence that will be used during the process to support or defend the claims at issue. 

 

It is worth mentioning that the new Judicial Code establishes certain limitations on the disclosure of evidence. In this regard, at the request of the party from whom the disclosure of evidence is requested and, for just cause, the court shall issue such rulings as may be necessary to protect the requested party against annoyance, humiliation, unjustified expense, and any other abuse, including the following: 

 

  • That disclosure shall not be permitted,  

  • Allowing disclosure only under specific terms and conditions, such as time, date, and place, 

  • Permitting disclosure by means other than the one requested, 

  • That certain matters are not investigated or that the scope of the disclosure is limited to certain matters,  

  • That the disclosure be made only in the presence of persons designated by the court,  

  • That, once an affidavit is sealed, it may only be unsealed by order of the court,  

  • That a trade secret or other confidential business research, discovery or information shall not be disclosed,  

  • That the parties simultaneously submit to the court certain documents or information in sealed envelopes to be opened only when ordered by the court. 

 

There are, in turn, sanctions for contempt of the order of disclosure of evidence, according to which the person who fails to comply with the request for disclosure of evidence or who makes improper use of the information, in accordance with the provisions of the Code of Civil Procedure, will incur in contempt of court and will be punished with corporal constraint, which will be decided by the judge hearing the case, additionally the person found guilty of this contempt must pay the expenses and legal fees that the processing of the request for disclosure may have generated to the requesting party and affected by the breach. 

 

The introduction of the disclosure of evidence, or discovery, is expected to mark a significant milestone in the development of civil proceedings in Panama. This measure is expected to fundamentally change the approach to litigation, leading to a faster and fairer justice system.  

 

Do not hesitate to contact us if you require more information about this subject. 

 

The information provided by ARIAS® is presented for informational purposes only. This information is not legal advice and is not intended to create, and does not constitute, an attorney-client relationship. Readers should not act upon this information without seeking advice from professional advisers.