Securing and obtaining evidence is often critical to the success of legal proceedings.
Securing and obtaining evidence is often critical to the success of legal proceedings.
Securing and obtaining evidence is often critical to the success of legal proceedings. With the enactment of the Evidence Law Simplification and Modernization Act on Jan. 1, 2025, civil evidence law will be radically modernized. This new legislation brings important improvements that make the practice of law more efficient and accessible. At Guldemond Lawyers, we are fully prepared for these changes and will be happy to advise you on the extensive possibilities under the new law.
The legislative amendment introduces four major innovations that significantly affect the process of gathering evidence. Firstly, it becomes possible to combine different evidence in one request. Where previously separate procedures were required for, for example, a witness examination and an expert opinion, these can now be combined in one request. This leads to significant time and cost savings and makes the process more efficient. It also explicitly establishes and clarifies the right to inspect documents. The law codifies the conditions under which parties are entitled to inspect documents held by the other party or third parties. This creates more legal certainty and makes it easier to surface relevant documents, which may be essential to your case. Another important change is that the possibility of seizing evidence, previously based mainly on case law, will now have an explicit legal basis. This strengthens the position of parties who fear that important evidence may be lost or manipulated. With this legal anchorage, attachment of evidence becomes a powerful tool in civil procedural law. Finally, the law emphasises and strengthens the judge’s active role in evidence issues. The judge will have more opportunities to engage with the parties on the facts and evidence. This promotes more efficient and focused litigation, where the judge can direct the information needed to reach a fair verdict.
For ongoing proceedings, transitional law is important. The new law applies to all proceedings initiated after 1 January 2025, as well as to appeal proceedings commencing after this date and follow-up proceedings in pending cases after this date. Proceedings started before 1 January 2025 will be settled under current law. It is therefore important to anticipate the changes in good time if you are considering starting proceedings or if your case continues into the new year.
Evidence seizure is a powerful tool to secure relevant evidence before it can disappear or be manipulated. Under the new law, this practice, which previously developed in the courts, will have a firm legal basis. This provides greater clarity and certainty for parties seeking to secure evidence.
Evidence seizure can be placed on a wide range of materials, including physical documents and records, digital data carriers, e-mail boxes and servers, cloud storage and online accounts, business assets and products, and electronic equipment. This broad scope makes it possible to safeguard all relevant information, regardless of its form.
Several conditions must be met for evidence seizure. There must be an urgency; there must be a well-founded fear that the evidence will be lost, hidden or manipulated. In addition, the material to be covered must be defined in a concrete and specific manner. A generalized request is insufficient. Finally, you must show that you have a legitimate interest in securing the evidence, related to a (potential) legal proceeding.
The judicial officer plays a central role in the execution of evidence seizure. After obtaining leave from the preliminary injunction judge, the bailiff will place the attachment at the specified locations. In digital evidence seizures, the bailiff works with forensic IT specialists to secure data. The bailiff ensures the integrity of the evidence and manages it until the proceedings.
In the modern world, much evidence is digital. Securing it poses specific challenges that require expertise and diligence. The use of forensic IT specialists is crucial for safe and reliable copying of digital data. Search terms and methods need to be determined in advance to perform targeted searches and mitigate privacy risks. It is essential to ensure data integrity and prevent data from being corrupted during the process. Privacy and data protection are key concerns. Data subjects’ privacy must be taken into account, in line with the General Data Protection Regulation (GDPR). Information covered by confidentiality, such as correspondence with lawyers, should be shielded. Practical implementation includes making exact copies of storage media, securing email servers and cloud storage, and making forensic copies of databases without disrupting operational systems.
The right of inspection is an essential tool for accessing relevant documents held by the opposing party or third parties. The new law clarifies and strengthens this right, making it easier to obtain the necessary information.
To successfully invoke the right of inspection, you must show that you have a concrete and legitimate interest in inspecting the documents. The request must be specific and focused on specific documents or categories of documents. Vague or general requests are rejected to prevent abuse. The right of inspection applies in the context of a legal relationship involving you. This term is interpreted broadly to include situations where you have a potential claim.
Even if these conditions are met, inspection may be denied on compelling grounds, such as trade secrets, privacy interests or confidential information. The judge weighs whether the interest in inspection outweighs the objections and whether less intrusive means are available. We help you formulate a strong request and anticipate possible counterarguments.
De rechter weegt af of het belang van inzage opweegt tegen de bezwaren en of er minder ingrijpende middelen beschikbaar zijn. This can be done prior to proceedings, as an independent request to strengthen your evidentiary position before you start proceedings. Even during an ongoing proceeding, the right of inspection can be used as an incident to the main case to obtain additional documents. In urgent cases, it is possible to seek injunctive relief through summary proceedings.
The new law significantly strengthens the possibilities for preliminary evidence transactions. This gives you the opportunity to strengthen your evidentiary position and better assess your litigation chances. With the change in the law, it is possible to combine several pieces of evidence in a single request, leading to more efficient litigation and cost savings.
The use of preliminary evidence operations requires a thoughtful strategy. It may be helpful to do this before the main case begins to assess your chances and possibly promote a settlement. Even during settlement negotiations, preliminary evidence transactions can serve as a means of pressure or clarification. In some cases, it makes sense to do this in parallel with other proceedings to obtain information that is useful in other cases.
A preliminary examination of witnesses is a powerful means of getting witnesses to testify under oath. This can help establish facts, strengthen your legal position and assess whether initiating proceedings is appropriate. We will guide you in selecting witnesses, formulating questions and preparing for the hearings.
For complex technical or financial issues, a preliminary expert opinion may be conclusive. An independent expert examines certain aspects and reports his findings. We advise you on the choice of expert, the assignment wording and the use of the report in your case.
In some cases, it is helpful for the court to assess the situation on the spot, for example, in construction disputes, disputes over the condition of property, or damage cases. We handle the practical organization of a site inspection and viewing and ensure that all relevant aspects are brought to your attention.
Evidence issues often require urgency and a strategic approach is essential. Guldemond Advocaten has in-depth expertise and is fully aware of the latest developments in evidence law and its practical application. We offer personal assistance and think with you to develop a strategy tailored to your specific situation and goals. With practical solutions, we ensure efficient execution of evidence transactions, with attention to detail and an eye for quality. In digital evidence seizures, we collaborate with renowned forensic IT specialists to achieve the best results. Our experience and expertise enable us to effectively support you in securing evidence and strengthening your legal position.
Do you have questions about evidence seizures, inspection rights or preliminary evidence proceedings? Or would you like to know how the new legislation affects your business? If so, please contact Guldemond Advocaten.
