(July 25, 2019) On May 28, 2019 the Supreme Court of Norway ruled that parties to a civil dispute could be requested to produce digital documents only if the request is sufficiently specific and includes only relevant evidence, and the cost of producing the evidence is proportional to the value of the dispute. (Norges Høyesterett [Norwegian Supreme Court], HR-2019-997-A (sak nr. 18-186326SIV-HRET) (May 29, 2019), Supreme Court website.)
The case involved a Norwegian and a Swiss corporation that were doing business. The Norwegian company sought to rescind the contract because of nondelivery. (Id. para. 2.) The Norwegian company won in first instance. Then, the Swiss party, as part of its appeal, proceeded to request that all documents that were electronically stored and pertained to communications between four people undertaken within a two-year time frame be produced. (Id. paras. 5 & 7; see also Eidsivating lagmannsrett [Eidsivating Appeals Court], LE-2018-76187 (Nov. 7, 2018), Lovdata website (by subscription).) The Appeals Court granted the request for producing the evidence. (LE-2018-76187.) The Appeals Court said that because the documents were stored electronically they should be “easy to search and sort.” (Id. para. 37.) That decision was appealed by the Norwegian corporation to the Supreme Court.
Law on Evidence Production
Under Norwegian law, the production of evidence is governed by the Norwegian Dispute Act. (Lov om mekling og rettergang i sivile tvister (Tvisteloven) [Act on Mediation and Procedure in Civil Disputes (the Dispute Act)] (LOV-2005-06-17-90), Lovdata website, unofficial English translation.)
The Dispute Act provides as follows:
(1) Everyone is obligated to make available as evidence objects that are in their possession or that they can obtain possession of.
(2) In order to satisfy the obligation in subsection (1), the court may order the parties and other persons to answer questions about whether they are aware of items of evidence, and to conduct necessary investigations in such respect. They may also be ordered to prepare comparisons, extracts, or other reviews of information that may be gathered from items of evidence.
(3) The court may refuse access to evidence pursuant to subsections (1) or (2) if such access would incur expenses that are not reasonably proportionate to the dispute and the potential value of the evidence, or if the party [requesting the evidence] has approximately the same possibility of obtaining access to such evidence. The court may make access to evidence conditional upon an advance of the expenses involved from the person having requested access. (§ 26-5 Tvisteloven, all translations by author.)
The Act further provides that a request for evidence must be specified in such a way that it is “clear which objects the request [for evidence] applies to,” though the court may “relax the specification requirement when it is unreasonably complicated to comply with and there is a clear possibility that the requirement will provide access to evidence.” (Id. § 26-6(1) & (2).)
Supreme Court Ruling
While the Appeals Court found that because the documents were stored electronically they would be easy to sort, and thus were sufficiently specified to meet the requirements of section 26-6, the Supreme Court ruled that the document request did not sufficiently meet the requirements of relevancy, specificity, and proportionality. (HR-2019-997-A para. 93.)
The Supreme Court focused on different expert testimony than the Appeals Court, and found that to produce all specified documents would be quite time-consuming, and would cost the Norwegian company some 11.7 million Norwegian kroner (about US$1.35 million). (Id. para. 49.) Thus, it determined that the request was not proportional. The Court concluded that the Appeals Court had not correctly estimated how burdensome the production would be for the Norwegian company. (Id. para. 50.) The Appeals Court had found that it would be sufficient to only search the emails of the four relevant Norwegian employees, whereas the Supreme Court, relying on the opinion of a discovery expert, concluded that to conduct the search for the requested evidence (i.e., complete the discovery procedure), the company would have to search the company server and emails of all 200 employees. (Id. para. 52.) The Supreme Court argued that such an extensive search for evidence was not intended by the legislature, as the legislature had specifically mentioned that it did not intend to introduce an American-style discovery process in Norwegian civil procedure. (Id. para. 32.) The Supreme Court cited the Norwegian legal history of the bill (id. para. 30), which specifically states that
[t]o implement discovery in the Norwegian legal process to the extent recognized in, especially, American law, but also in British law, is, in the opinion of the [Civil Dispute] Commission, out of the question. It would fundamentally undermine the serious considerations that favor a more efficient – also cost effective – civil procedure.” (NOU 2001:32 A at 465.)
The Court remanded the case to the Appeals Court, requiring that the Appeals Court also evaluate whether the request for evidence violated section 22-5 of the Dispute Act, which prohibits evidence that is protected by privilege rules. (Id. para. 91.)
Thus, the Court found that even electronic documents must be specified and relevant, and the cost of producing them proportional to the dispute.