The Disclosure of Evidence in Panama

Yuri Moreno and Mario Herrera, lawyers at ARIAS Panama who are experts in Litigation,  share with us this article on the “Disclosure of Evidence”, known as “Discovery” in Anglo-Saxon Law; a novel figure that has been introduced in the new Civil Procedure Code, which will come into force in October 2025.

Before going into the subject, it is worth explaining that the disclosure of evidence or discovery is a figure that comes from Anglo-Saxon Law and consists of a formal procedure, prior to the start of a process, through which the parties (plaintiff and defendant) prepare their case by exchanging information about the evidence and/or witnesses that they will present at trial. This process allows the parties to know, in advance, what evidence the other party will present and its main objective is to ensure that the parties are not surprised by evidence that has been hidden or reserved by the other party. In other words, the idea is that all the evidence is put on the table before the process begins, so that each party has the opportunity to put together its legal strategy without surprises or obstacles, thus ensuring that the process advances expeditiously.

The new Code of Civil Procedure, adopted by Law 402 of October 9, 2023, in its Title II, Chapter III, Section 1, provides information on the disclosure of evidence, indicating that any of the legal representatives who are duly constituted within the process may require the other during the course of the process and only up to ten days before the preliminary hearing, the disclosure of information and the provision of documents.

The means to carry out such disclosure of evidence are the following:

• Affidavits through oral or written questions,
• Written interrogatories addressed to the parties,
• Supply and display of documents and other objects,
• Permission to enter land and other property for the purpose of inspection and for other purposes,
• Physical or mental exams,
• Request for admission of facts and recognition of things or documents related to the subject matter of the process.

This disclosure of evidence may always be carried out between the parties involved in the process, without the need for intervention by the Judge, except in the circumstances provided for in the code.

The new regulations establish which matters are susceptible to disclosure, among which we can mention the following:

• The existence, description, nature, custody, condition and location of any books, documents and other objects and documents, whether stored physically, in digital or electronic format and whether in the possession, custody or control of the requested party.
• The identification and contact details of all persons who have knowledge of any matter that must be disclosed, whether or not they will testify as witnesses during the trial, specifying in each case whether or not they will be called to testify.
• The calculation of how the amount of the claim is arrived at and all documents or evidence supporting said amount, including all documents corroborating the extent and amount of the damages claimed.
• The identification of any document or evidence that will be used during the process to support or defend the claims that are the subject of the process.

It should be noted that the new Judicial Code establishes certain limitations on the disclosure of evidence. In this regard, at the request of the party to whom the disclosure of evidence is requested and for just cause, the court will issue the resolutions that are necessary to protect the requested party against inconvenience, humiliation, unjustified expenses and any other abuse, including the following:

• That disclosure is not permitted,
• That disclosure is permitted only under certain specific terms and conditions, including time, date and place,
• That the disclosure is made only by one of the means of disclosure other than the one requested,
• That certain matters are not investigated or that the scope of disclosure is limited to certain matters,
• That the disclosure be made only in the presence of persons designated by the court,
• That, once a sworn statement has been sealed, it can only be opened by court order,
• That a trade secret or other research, discoveries or commercial information of a confidential nature 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 also sanctions for contempt of court orders for disclosure of evidence, according to which the person who fails to comply with the request for disclosure of evidence or who misuses the information, in accordance with the provisions established in the Civil Procedure Code, will incur contempt of court and will be punished with corporal punishment, which will be decided by the Judge who hears the case. In addition, the person found guilty of this contempt must pay the legal fees and expenses that the processing of the request for disclosure may have generated for the requesting party and affected by the non-compliance.

The introduction of the disclosure of evidence or discovery will mark a milestone in the development of civil proceedings in Panama. It is expected that this figure will completely change the way of litigating and that this will result in justice that is faster and more equitable.

Do not hesitate to contact us if you require more information about the subject in question.