On the issue of obtaining evidence from a procedural opponent

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In any court hearing, there is a need to provide documentary evidence. If a party cannot obtain them on their own, they can ask the court to do so by filing a petition to obtain documents. An example of this document and the features of its preparation are described in detail below.

Sample - petition to obtain documents (word)

When to submit

Each party to the process has the right to ask the court to request evidence (documents) if it objectively cannot obtain it. That is, an individual, a representative of a company or other legal entity can count on the fact that the court, using its powers, will forcibly request papers that:

• objectively necessary to consider the case and make a decision;
• cannot be obtained by the party independently.

It may be necessary in cases where we are talking about the requisition of documents that the other party deliberately withholds, for example:

1. The ex-wife filed a claim against her husband for payment of alimony in full. The husband pays them from his salary, but also has other official income (for example, from renting out an apartment). The wife cannot objectively obtain documentary evidence of this fact (request a lease agreement or a bank account statement). Therefore, it is worth filing a petition so that the court makes a decision on the forced collection of documents.
2. During the official marriage, the spouses took out a consumer loan and purchased a car with these funds. The loan was taken out in the name of the husband, and the car was also registered in his name. After the divorce, the husband hid all the relevant papers, and at the same time does not consider it necessary to divide the jointly acquired property. Therefore, it makes sense to ask the court to forcefully demand evidence: confirmation of the car’s registration with the traffic police, a loan agreement with a bank, as well as a purchase and sale agreement.
3. The employee was on a long business trip, during which the unscrupulous employer fired him “at his own request” by issuing a corresponding order. At the same time, the employee was given a work book and a paycheck, but he cannot ask for an order or an entry in the documentation log. Therefore, you should file a petition and ask the court to compulsorily demand these and other documents.

On the issue of obtaining evidence from a procedural opponent

It is known that both the civil and arbitration process represent a certain abstract model consisting of various adversarial mechanisms. The essence of the adversarial process is the active role of the parties and the passive role of the court in collecting evidence. In other words, the parties act, the parties prove - they prove those facts to which they refer as the basis for their claims and objections (Part 1 of Article 65 of the Code of Arbitration Procedure of the Russian Federation, Part 1 of Article 57 of the Code of Civil Procedure of the Russian Federation).

Proof is an important element of cognitive activity. Before giving a legal qualification, searching for a rule of law, the court must determine the range of facts that are subject to legal qualification.

In theory, proof can be understood as an activity aimed at establishing all factual circumstances for the purpose of their further interpretation through the rule of law, as well as the activity of argumentation and convincing third parties of the truth of the information presented. One way or another, the point of proof is to achieve the truth through establishing facts. And the desire to achieve truth is one of the goals of justice.

Leaving outside the scope of our discussions the question of what is the fate of the evidence requested by the court on its own initiative in the framework of an adversarial process, let us consider the following question: can the court in an adversarial process assist a party in the implementation of its procedural rights and request evidence from its procedural opponent? Those. help “obtain” evidence regarding those facts, the burden of proof of which lies on one side, and the evidence itself is on the other side?

If we compare the provisions of Part 9 of Art. 66 of the Arbitration Procedure Code of the Russian Federation and Part 3 of Art. 57 of the Code of Civil Procedure of the Russian Federation, one gets the impression that it is possible to demand evidence from a procedural opponent in an arbitration process, but not in a civil process. After all, if in the first case a fine for failure to provide evidence to the court can be imposed on any person from whom evidence is requested, then in the second case - only on a person who is not a participant in the case.

Obviously, the court cannot oblige a party to provide evidence if it comes to proving facts in the interests of such a party. In this case, the court can only invite the party to present evidence.

There is also no great doubt about the possibility of obtaining evidence from persons not participating in the case. Such persons do not have an independent interest in the outcome of the case; failure by such persons to provide evidence at the request of the court is an act of contempt of court.

The situation is more interesting in the case where evidence is required from the defendant, i.e. a person who has an independent interest in the case, moreover, directly opposed to the interest of the plaintiff, who is charged by law with the obligation to prove the circumstances to which he refers in support of his claims or objections.

Is it possible to say that demanding evidence from a procedural opponent violates the principle of adversarial action?

In judicial and arbitration practice, opinions on this matter are divided. Some courts say that demanding evidence from a procedural opponent goes against the principles of equality and competition (see a selection of judicial acts, paragraphs 1-4):

1. Decision of the Court of Justice of the Kostroma Region dated March 20, 2020 in case No. A31-15215/2019

In accordance with Art. 65 of the Arbitration Procedure Code of the Russian Federation, each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections.

At the same time, the court draws attention to the fact that, in accordance with Art. 66 of the Arbitration Procedure Code of the Russian Federation, the court does not have the right to demand evidence from the defendant, since the provision of documents is a right, and not an obligation, of a party to the case (Article 41 of the Arbitration Procedure Code of the Russian Federation).

2. Decision of the Samara Regional Court dated March 12, 2020 in case No. A55-35223/2019

By virtue of Part 2 of Art. 7 of the Arbitration Procedure Code of the Russian Federation, the court provides equal judicial protection of the rights and legitimate interests of all persons participating in the case. According to Part 2 of Art. 8 of the Arbitration Procedure Code of the Russian Federation, the parties enjoy equal rights to file challenges and petitions, present evidence, participate in their research, speak in judicial debates, present their arguments and explanations to the court, and exercise other procedural rights and obligations provided for by the Code.

In accordance with Parts 1 and 2 of Art. 9 of the Arbitration Procedure Code of the Russian Federation, the court does not have the right, by its actions, to put any of the parties in a preferential position, as well as to diminish the rights of one of the parties. Proceedings in the arbitration court are carried out on an adversarial basis. Persons participating in the case have the right to know about each other’s arguments before the start of the trial. Each person participating in the case is guaranteed the right to present evidence to the court and the other party in the case, is provided with the right to submit petitions, express his arguments and considerations, and give explanations on all issues arising during the consideration of the case related to the presentation of evidence.

By filing a petition to obtain evidence from the defendant, the plaintiff actually imposes on the defendant the obligation to prove his own claims, which contradicts the principle of adversarial parties, established by Art. 9 Arbitration Procedure Code of the Russian Federation.

Based on the foregoing, the court considers it necessary to refuse the plaintiff’s request to obtain evidence.

3. Decision of the Court of Justice of the Komi Republic dated February 17, 2020 in case No. A29-16738/2019

The legal mechanism provided for in the article of the Arbitration Procedural Code of the Russian Federation does not apply to the parties (the court does not have the right to demand evidence from the plaintiff and defendant, including under the threat of a fine) - otherwise the adversarial principle would be violated. Providing evidence is the right of a party, the refusal to exercise which may lead to a risk in the form of a court making a decision not in favor of this party (Part 2 of Article 9 of the said code), and coercion to use this right is not allowed in any form.

4. Decision of the Court of Justice of the Rostov Region dated November 28, 2019 in case No. A53-12538/2019

The plaintiff’s request to demand evidence from the defendant, namely, information about the payments he received, was rejected by the court as directly contradicting the principle of adversarial proceedings (article of the Arbitration Procedural Code of the Russian Federation), the principles of equality and equal rights of the parties (articles of the Arbitration Procedural Code of the Russian Federation), and also the concept of a fair trial (article of the Arbitration Procedural Code of the Russian Federation). The court does not have the right to force one of the parties to disclose evidence in favor and in the interests of the other party. The presentation of evidence in accordance with the article of the Arbitration Procedural Code of the Russian Federation is the right of the party, but not the obligation.

Comment: from the proposed sample we can conclude that judicial practice has a difficult time understanding adversarial law. Courts do not distinguish between cases where a) a party does not present evidence in its own interests. Indeed, the plaintiff or defendant cannot be obliged to prove, because proof is a right, not an obligation; b) the burden of proof lies on one side, but the evidence is in the possession of the other party - in this case, the court, at the request of a party, is obliged to request evidence from the procedural opponent, since the failure of the procedural opponent to provide this evidence (even incriminating it) is an obstacle to the administration of justice and can significantly complicate establishing the truth in the case.

Guided by the idea that the court acts in the interests of legality, a party who, for objective reasons, cannot independently exercise its procedural rights, should be able to seek assistance from the judiciary, and the judiciary should provide this assistance (Part 3 of Article 9 Arbitration Procedure Code of the Russian Federation, Part 2 of Article 12 of the Code of Civil Procedure of the Russian Federation).

However, everything turned out to be not so bad, and in practice there are still cases when courts demand evidence from a procedural opponent (or at least name the conditions for such demand) (see the selection of judicial acts, paragraphs 5-9):

5. Decision of the Arbitration Court of the Sverdlovsk Region dated March 13, 2020 in case No. A60-55087/2019

According to Part 1 of Art. Arbitration Procedural Code of the Russian Federation The Arbitration Court accepts only that evidence that is relevant to the case under consideration.

It follows from the above that a petition to obtain evidence must be granted only if the circumstances indicated in such a petition, which can be established as a result of an examination of the relevant evidence, are included in the circle of circumstances relevant to the consideration of the present case, and the establishment of these circumstances without them is impossible.

Having assessed the range of circumstances relevant to the consideration of this dispute, taking into account the subject of the stated claim and the arguments given in support of it, as well as the evidence presented in the case file, the court comes to the conclusion that the circumstances in support of which the defendant is seeking the indicated evidence are not are significant for the dispute under consideration.

6. Decision of the Administrative Court of the Krasnodar Territory dated March 14, 2020 in case No. A32-38339/2019

The plaintiff's representatives supported the previously stated petition to obtain evidence from the defendant.

The court, having considered the plaintiff’s request for evidence, taking into account the opinions of the defendant’s representatives and third parties, considered it not subject to satisfaction, since the evidence requested by the plaintiff does not affect the outcome of the consideration of the case.

7. Resolution of the Administrative Court of the Republic of Karelia dated February 25, 2020 in case No. A26-2448/2019

The plaintiff petitioned to obtain evidence from the defendant (a log of laying the asphalt concrete mixture, a log of testing samples of the asphalt concrete mixture, a log of incoming quality control of materials, an as-built diagram of the asphalt concrete pavement (to determine the location of laying the sweep purchased from the plaintiff), a contract for work at the distribution site C terms of reference and estimate) and asked to consider the issue of ordering a forensic examination after receiving the required evidence.

Considering the petition to be justified, by a ruling dated October 4, 2019, the court demanded the listed documents from KomplektStroy LLC.

8. Decision of the Primorsky Territory AS of 02/06/2020 in case No. A51-23156/2019

The court, having considered the petition to obtain evidence in accordance with Art. of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), refused to satisfy it, since the requested document does not have legal significance for considering the case on the merits.

9. Resolution 9AAS dated 08/01/2019 in case No. A40-42578/2017

By the ruling of the court of first instance dated January 15, 2019, in the framework of this bankruptcy case, the bankruptcy trustee’s petition to obtain evidence was granted. Certified copies of the contracts were requested from the Defendant.

The documents requested by the court, including the contested agency agreement, were presented by the Defendant.

Comment: the condition that the requested evidence must be important for the correct resolution of the dispute seems justified to us. It makes sense to request evidence from a procedural opponent only when it contains information not about any facts, but only about those that the parties dispute.

At the same time, in civil and arbitration proceedings there is not and cannot be the right of the defendant not to testify against himself, since such a right exists for a private entity only in vertical relations, i.e. private-public.

Requesting evidence from a procedural opponent at the request of the opposite party is aimed at achieving the main goal of justice, which is to protect violated rights, freedoms, and legitimate interests of citizens and organizations. Therefore, the private interest of the procedural opponent, hidden in his own “non-incrimination,” should be refracted through the goals of justice both in arbitration and civil proceedings.

Sample and drawing rules

The document is drawn up in any form, but when working with the text, it is necessary to explain in detail what kind of evidence needs to be obtained and for what purpose, i.e. You need to answer at least 3 questions:

1. What is the evidence?
2. What does this evidence prove?
3. Why is this evidence important in this case? (Why is it impossible to do without it?)

The general structure of the petition is typical for this type of document:

1. “Caption” indicating the name of the court and full name, contact information of the parties.
2. Statement of the circumstances of the request.
3. A clear statement of the request.
4. Description of applications, if any.
5. Date, signature, signature transcript.

Expert opinion

Salomatov Sergey

Real estate expert

The petition can be submitted by either the party itself or its representative (provided that he is acting under a power of attorney signed by a notary).

Features and design rules

In accordance with procedural law, the petition must have the following structure:

1. Introductory part. Includes a “header” that indicates the name of the court, full name. and the applicant's contact details, as well as the case number.
2. Main part. Here you need to outline the essence of your request: what information needs to be requested, what legally significant circumstances it confirms, why you cannot get it yourself, and who has it.
3. Resolution part. In this paragraph, it is necessary to indicate the requirement itself, for example, “I ask you to request reports of road accidents from the Krasnensky Ministry of Internal Affairs of the Belgorod Region.”
4. Your signature and date of application. This is followed by a list of applications (if necessary).

Possible reasons for deviation

Typically, courts always grant such requests, since this is largely in their interests: without solid evidence, it will be extremely difficult to make a reasoned decision. However, in some cases, the judge may decide that the request should be denied. The reasons may be as follows:

1. It is not indicated which specific documents, and for what specific purposes, must be requested. In this sense, a citizen should be extremely careful. Otherwise, it is unclear what exactly the party wants to prove using these papers.

2. It is quite common for a petition to be submitted clearly untimely. For example, if the judge decided that it was time to sum up the results and go to make a decision, and at this moment a request is submitted, he may consider this an abuse of law, citing, for example, Article 10 of the Civil Code. Such justification in some cases may be purely formal, so the citizen should continue to defend his rights while filing an appeal.

3. Finally, if a citizen asks for documents that he can obtain himself

In any case, the party whose request is denied may file an appropriate appeal after the decision has been rendered.

When is a Petition Required?

The inability of one of the parties to obtain the necessary documents may be due to two main reasons;

• the other party knowingly withholds or fails to provide the relevant documents.
• the requested information constitutes a secret protected by law, for example, information about income, health contained in a criminal case and a number of others listed in Decree of the President of the Russian Federation of March 6, 1997 No. 188 “On approval of the list of confidential information.”

If a party to a lawsuit is confident that the provision of such information as evidence in the case is necessary, then it can file a corresponding petition.

According to Art. 57 Code of Civil Procedure of the Russian Federation:

1. Evidence is presented by persons participating in the case. Copies of documents submitted to the court by a person participating in the case are sent or handed over to other persons participating in the case if they do not have these documents, including in the case of filing a statement of claim and documents attached to it with the court by filling out the form posted on the official website of the relevant court on the Internet.

The court has the right to invite them to provide additional evidence. If it is difficult for these persons to provide the necessary evidence, the court, at their request, assists in collecting and requesting evidence.

2. A petition to request evidence must indicate the evidence, and also indicate what circumstances that are important for the correct consideration and resolution of the case can be confirmed or refuted by this evidence, indicate the reasons preventing the receipt of the evidence, and the location of the evidence. The court issues a binding request to the party to obtain evidence or requests evidence directly. The person who has the evidence requested by the court sends it to the court or hands it over to the person who has the corresponding request for presentation to the court.

3. Officials or citizens who are unable to provide the requested evidence at all or within the period established by the court must notify the court about this within five days from the date of receipt of the request, indicating the reasons. In case of failure to notify the court, as well as in case of failure to comply with the court's requirement to present evidence for reasons recognized by the court as disrespectful, a court fine is imposed on the guilty officials or citizens who are not persons participating in the case in the manner and in the amount established by the chapter 8 of this Code.

4. The imposition of a fine does not relieve the relevant officials and citizens who own the requested evidence from the obligation to present it to the court.

The application must indicate what evidence is required (its name, details, other signs by which it can be identified). The petition also indicates why this evidence is needed, what grounds for claims or objections to the claim can be confirmed (refuted) by this evidence. A mandatory condition is to indicate in the application why the applicant cannot independently, without the help of the court, present the necessary evidence. The petition indicates the name of the organization from which evidence is to be requested and its address.

It is advisable to make a request for evidence in writing and submit it to the court through the office. You can submit an application at any time before a court decision is made.

Compilation rules

There is no approved form of a petition to obtain evidence in a civil case in the legislation. That is, it can be compiled in any form. It is acceptable (although not advisable) to express it orally directly during the court hearing. But it’s better to draw up a written document that consists of the following parts:

1. Hats. Contains information about the parties to the process (full name or name of organization, address and other contact information) and about the court in which the case is being heard.
2. Document titles.
3. Description of the case (number, name of the court, subject and parties to the dispute).
4. A brief statement of the main circumstances of the request.
5. The wording of the request (mention of Article 56 of the Code of Civil Procedure of the Russian Federation about the party on whom the burden of proof lies; an indication of where and why the requested evidence is located; an explanation of the reasons for the impossibility of obtaining the required document independently with references to legislation where possible; an explanation of what and from whom must be required; reference to Article 57 of the Code of Civil Procedure of the Russian Federation).
6. List of accompanying documents.
7. Dates and signatures with transcript.

Particular attention should be paid to 4 points, which are clearly stated in paragraph 2 of Art. 57 of the Code of Civil Procedure of the Russian Federation and therefore mandatory:

• what exactly is evidence;
• its location;
• what the requested evidence must prove;
• reasons (including legal ones) that prevent you from independently obtaining evidence.

There are several ways to submit your application.

1. Send by mail. In this case, the form of a registered letter with a list of the attachments and a notification of delivery is highly desirable.
2. Through the court office. One copy remains in court, and the second copy is marked with receipt.
3. Directly to the judge during the hearing. In this case, the law provides for immediate consideration of the application. (Article 121 of the Code of Criminal Procedure of the Russian Federation). If immediate consideration is not possible, the court has the right to do this within 3 days.