The evidence production phase plays a key role in a lawsuit, and may be decisive for its success – or not. The current Code of Civil Procedure (CPC) introduced the early production of evidence as an autonomous claim. Therefore, the production of evidence will no longer be a procedure phase, or an injunction plead, but a litigation claim, which expanded – and greatly – its suitability.

What previously required the proof of urgency can now be filed with the certainty that evidence will be produced but not analyzed by the judge. As a result, the involved amount will not be related to the economic benefits expected by the Plaintiff which will reduce the payment of judicial costs and, except in cases of resistance by the defendant, lawyers’ fees do not apply. Moreover, art. 382, §4, of CPC does not allow the parties to file a defense or an appeal, except in case of total dismissal of the early evidence claim.

In accordance with the Article 381 of the CPC, the filing of the lawsuit to be suitable requires the demonstration that the evidence is needed to:

• prevent certain facts from becoming impossible or very difficult to be verified;
• enable an alternative dispute resolution; or
• avoid or justify the assessment of future claims.

Except for the first hypothesis, which is still related to the urgency requirement, the others can be claimed with greater flexibility.

In addition to facilitate the production of evidence, the new Code of Civil Procedure was even more generous in trying to forbid any kind of defense or appeal to reduce the number of disputes and, as in other articles of the new CPC, to stimulate alternative dispute resolution methods and the autonomy of the parties.

As a result, in theory, the party can avoid the knowledge phase of the lawsuit and move straight to the production of different types of evidence (cumulation is allowed). This wide range of scenarios in which the early production claim is suitable is combined with the restriction of eventual defense or appeal and the lower risk regarding the payment of judicial costs and lawyers’ fees, which reduces the financial exposure of filing such type of claim.

Despite the legal provisions mentioned above, case law has already reduced some attractive points of the demand, mainly to prevent abuses and ensure due compliance with principles of civil procedural law.

Effects on the corporate context

In corporate law, the early production of evidence claim has benefited mainly minority shareholders and started to be used as an instrument to access information of the company and to exercise the right of supervision. This is so because the claim can be filed only with a short description of the context involved, based on the Article 381 of the CPC. Therefore, minority shareholders gained a judicial means of requesting the disclosure of documents regarding the company without incurring in significant costs. In this case, it would not be necessary to effectively litigate against the company, the other partners or the managers.

Furthermore, considering that the power to determine the delivery of a specific document is exclusive of the judicial courts, the advance production of evidence may be used for the minority shareholders to disassociate from an arbitration clause. This hypothesis, however, is discussed by scholars.

In case law it is already possible to identify lawsuits regarding the early production of evidence filed by minorities to obtain:

• accounting and financial information of the company, even to determine the calculation of amounts due in cases such as withdrawal
• documents related to corporate transactions; and
• contracts in general, including those related to strategic issues or related parties, for example.

Therefore, it is perceived the use of the early production of evidence lawsuit by minority partners to obtain access to sensitive information about the company, corporate transactions, including in relation to valuation, and investigation of unfair competition.

Due to the increased use of the early production of evidence lawsuit, doctrine and case law began to modify the understanding towards Article 382, §4º, of the CPC, which prevented, completely, the presentation of defense or appeal, except when the early production of evidence is totally rejected.

Therefore, for example, is already allowed defense on procedural issues or the filing of an appeal, including the arguments related to:

• interest in court pleading;
• possibility of access to confidential documents; or
• legitimacy for a certain party to be able or not to require the submission of a certain document or the production of any evidence.

This modification of the legal provision ensures the application of principles of civil procedural law such as broad defense and contradictory – principles that were even enhanced in the current CPC, by means of hearing the parties after any new document be attached to the case or after a judge’s decision on a subject not yet addressed by the parties.

In addition to procedural defenses, in the corporate context, it is also necessary to determine the extent and scope of the right of supervision and access to information by minority shareholders.

Although the right of supervision is an essential right of the shareholder, pursuant to Article 109, III of the Law 6,404/76, it is neither unlimited nor unrestricted and must be exercised in the form of the law. The same reasoning applies to other corporate types, especially to limited companies.

It is undeniable that the duty to supervise – as well as any other right – cannot be exercised in an abusive manner or to impair the progress of social business and the management of the company.

In addition, it should be recognized that many documents and data that minorities intend to access can be strategic for the company, subject to confidentiality obligations or even related to business secrets or competitive sensitive information.

In cases such as these, the judge is expected be reasonable when evaluating in a balanced way the right of supervision of minority shareholders, the merits of the request and the impacts on the company, including in relation to the confidentiality of documents presented in the lawsuit.

Another concern is with the equal treatment of the shareholders. When not all shareholders are parties to the demand, could the management disclose information to the shareholders who have filed such a measure or should it guarantee the same access to the others?

Case-law required the demonstration, by the plaintiff, of the suitability of the measure, its interest in court pleading and, finally, its legitimacy for such a claim, which will only be analyzed after the judge's assessment of procedural issues related.

On the one hand, the relevance of the early evidence lawsuit to the legal system is undeniable, on the other hand, it is also undeniable that the easing of requirements should not be used as a loophole for abuses. In the corporate context, this has even more relevance, to preserve the conduct of the corporate businesses. It is expected that the measure could be an additional tool for minority shareholders without reverting into an abusive practice.