For most in-house counsel, the thought of defending a civil case brought against the company is typically an unpleasant proposition—even more so when the matter is proceeding in a foreign or unfamiliar jurisdiction in which the substantive law and court procedures differ from those in one’s home jurisdiction.
But different procedures, even if unfamiliar, can sometimes be advantageous to a defendant. This is particularly true with respect to certain aspects of the discovery process in Thai civil court proceedings. For in-house counsel in certain jurisdictions, the specter of litigation not only entails the potential risks posed to the company and the time and financial costs inevitably incurred, it can also mean lengthy and costly discovery battles. However, as discussed in more detail below, due to the nature of Thai discovery procedures, these types of discovery battles are typically rare in Thai civil court proceedings. Further, due to the limited scope and mechanisms for discovery practice in Thailand, the whole discovery process tends to be rather expedient and straightforward, particularly when compared to that in jurisdictions with extensive discovery practice.
In this article, the authors provide an overview of some of the more notable features of the process for discovery under the Thai Civil Procedure Code (“CPC”), particularly those that may differ from those in jurisdictions with a more vigorous and wide-reaching discovery process. (We note that this article addresses only discovery procedures in civil proceedings in Thai courts; the discovery process in criminal proceedings is subject to the Thai Criminal Procedure Code and differs from the process in civil courts in some respects.)
Rules of Evidence
Before taking a closer look at some of the discovery provisions in the CPC, it is important to understand a few fundamental principles of Thai evidence law, as these provide the general guidelines that a Thai court will use in its assessment of the admissibility of evidence.
The CPC provides that, except for facts that are “generally known,” “indisputable,” or admitted or deemed to be admitted by the parties, the determination of questions of facts in a case shall be made by relying on evidence. The CPC also gives judges wide discretion over proceedings in their courtrooms. With respect to the admissibility of evidence, the court has the discretion to reject any evidence that is superfluous or irrelevant to the subject matter of the case.
These general provisions are significant with respect to the discovery process because they provide the limited scope of evidence that will be admissible in court proceedings, and also establish the judge’s role as the gatekeeper for such evidence.
Discovery procedures are set out in the CPC. However, as noted above, these procedures and the accompanying discovery mechanisms are rather limited in scope. Some of the key features of these procedures include the following:
No litigation holds. Except where otherwise required by law or regulations, Thai law and procedure impose no duty on a party to preserve evidence in anticipation of litigation. (A notable example would be the requirement under the Labor Protection Act that an employer retain certain employment records of an employee for at least two years after the termination of the employee.) Having said that, as discussed below, a party who is unable to produce certain documentary evidence could potentially be faced with an adverse inference imposed by the court due to the absence of that document. Further, the Thai Criminal Code provides that destruction of evidence is a criminal offense.
Limited initial disclosures of evidence. Parties are not required to produce lengthy initial disclosures or mandatory disclosures of the witnesses and documentary evidence on which they intend to rely during trial. Instead, under the CPC, each party is required to submit a list of witnesses and documentary evidence at least seven days before the hearing at which the evidence will be taken. For supplementary lists of additional witnesses or evidence, each party is required to submit this list within fifteen days from the hearing at which the evidence was presented.
As a practical matter, the parties will often agree to exchange initial versions of these lists much earlier in the proceedings, such as at the time of the submission of the complaint or the answer.
In practice, the parties may agree to exchange written witness statements at least seven days before the hearing at which the testimony of that witness will be presented. The court may also prefer this approach, as it saves time by allowing the written statement to effectively take the place of a direct examination. At the hearing, the witness would then be asked to attest to the content of the statement and, if applicable, to provide any additional testimony, after which the parties will proceed with the cross examination of the witness. So while pretrial depositions (whether oral or written) are not included among the discovery mechanisms in a Thai court, parties will often have a written witness statement in advance of the hearing date from which to plan their cross examination of that witness.
No separate procedures for disclosures of expert witnesses or their opinions. As an initial matter, we note that the CPC includes provisions for the use of court-appointed experts under certain circumstances. For such experts, the court can exercise its discretion to require the expert to produce a written opinion. For a party that wishes to rely on the testimony of its own (i.e., not court-appointed) expert witness, there is no separate procedure for the disclosure of that witness or the discovery of his or her testimony. Instead, an expert witness is treated like any other witness and disclosed in accordance with the list of witnesses and evidence mentioned above. Further, the production of expert reports separate from and in addition to the testimony of the expert witness is not contemplated in the CPC. The expert’s opinion will instead be included as part of his or her testimony, either given orally during the trial hearings or provided in advance as part of a witness statement (just as with other witness). Again, as there are no pretrial depositions in Thai court proceedings, the parties will not have the opportunity to examine an opposing expert prior to the trial hearings.
No “fishing expeditions” for documentary evidence (and, accordingly, no need to make large document productions in response to the same). One of the more significant features of the Thai discovery process that distinguishes it from the process in some other jurisdictions is its requirement for specificity in any request for documentary evidence in the possession of the opposing (or a third) party. In other words, the broad requests for extensive types and amounts of documents with which some counsel might be familiar (and frequently inconvenienced) are not part of the discovery mechanisms provided in the CPC.
What the CPC provides instead is a process through which a party can ask the court to issue a subpoena for any documents that it cites in its list of evidence that are in the possession of the opposing party. (The CPC also provides a similar process for documents in the possession of a third party, but for the purposes of this article, we will focus on those with the opposing party.) The relevant provision reads as follows:
Section 123: Where the original of the document which was cited as evidence by any party is in possession of the opposing party, the party who cited such document may, instead of filing a copy thereof, file an application by motion with the Court for an order to direct the opposing party to file the original. If the Court considers that the document is important evidence and the application is well-grounded, it shall issue an order to direct the opposing party to file the original within a reasonable time as the Court deems appropriate. If the opposing party who possessed the original fails to comply with such order, the allegations of the application concerning facts to be proved by the documents shall be deemed to have been admitted by the opposing party.
The language of Section 123 raises several important issues:
- The requested document must be known to exist. In other words, the party making the request cannot simply issue a broad and speculative request for documentary evidence that may or may not actually exist. Section 123 anticipates that the requesting party is aware that the document being requested actually exists and is in the possession of the opposing party.
- The requested document must be identified with some level of specificity. Again, the requesting party cannot issue a broad request for a wide range or category of documents (e.g., “Any and all email correspondence and other communications between January and June 2021 referring to the incident.”). Instead, the request must be for a specific document or documents that the requesting party knows or has reason to believe is in the possession of the opposing party. While the request could potentially refer to more than one specific document, any multiple documents requested should also be readily identifiable (e.g., “Quarterly sales reports for 2019-2021” or “Email correspondence between Mr. A and Ms. B regarding request for sick leave referenced in March 19, 2020 email to the defendant.”) as opposed to simply being encompassed in a broader request (e.g., “Any and all reports or other communications regarding sales between 2019-2021” or “Any and all correspondence between Mr. A and Ms. B between January and April 2020 regarding request for sick leave.”) The idea is to identify the requested document with enough specificity to enable the producing party to identify the document and determine whether it is actually in its possession.
- The court must consider the requested document to be “important evidence.” Even if the two points above are satisfied, a court will not grant a subpoena unless the requested document itself is “important evidence.” So it is not enough that the requesting party believes that while the document itself may not constitute important evidence, there is a possibility that the document could lead to important evidence. The requested document itself must be important. This also relates back to the rules of evidence mentioned earlier, which provide that a judge has the discretion to reject any evidence that is superfluous or irrelevant to the subject matter of the case.
- An adverse inference will be drawn against a party that fails to produce the requested document. As noted below, the party from whom a document is requested can object to the subpoena on certain grounds. However, should the court reject the objection and still order the party to produce the document, and should the party fail to do so, the allegations regarding the facts to be proved by the document will be deemed admitted by the opposing party. Similarly, a separate provision of the CPC provides that if a party has damaged, destroyed, or concealed a document with the purpose of preventing the opposing party from citing it as evidence, an adverse inference will also be drawn against the party at fault.
In addition to the above, it should also be noted that refusing to comply with a subpoena is a criminal offense under Thai law, the potential punishments for which can range from imprisonment up to six months, or fines of up to THB 10,000, or both.
Possibility of dismissal of subpoenas issued for documents. If the party to whom a subpoena has been issued objects to the subpoena, it can file a petition to dismiss to the subpoena. The potential grounds for arguing for the dismissal of a subpoena for documents include the following:
- The requested document is irrelevant to the facts to be proved by the parties or to the subject matter of the case.
- The request is too broad, too vague, etc., to enable the party to identify the document or to determine whether the document is in its possession.
- The request is overly burdensome.
- The requested document does not exist or is not in the party’s possession.
- Production of the requested document is prohibited by law.
- Production of the requested document could potentially cause damage to a third party.
- The requested document is confidential or privileged.
Regarding objections based on confidentiality or privilege, we note that Thai law recognizes attorney-client privilege. Like in other jurisdictions, absent certain circumstances, lawyers in Thailand are prohibited from disclosing confidential information about their clients. Additionally, under the Thai Penal Code, the disclosure of confidential information by a lawyer (among other professions) or the lawyer’s assistant or trainee can constitute a criminal offense under certain circumstances.
In the context of a dispute over the production of a document, however, while a party can object to a subpoena on the basis of confidentiality, privilege, or any of the other grounds mentioned above, the decision of whether to enforce or dismiss the subpoena will be up to the discretion of the court.
The discovery methods and procedures for civil cases under the CPC tend to result in proceedings in which lengthy and costly discovery battles are relatively rare, particularly when compared to discovery practices in the United States or some other jurisdictions with more demanding discovery procedures. For a corporate defendant in a Thai civil case, this can result in saving not only the time and expenses often associated with these discovery battles, but also in reducing the risk of having to produce potentially sensitive and/or damaging documents in response to broad discovery requests. Instead, in accordance with the CPC, a defendant can expect to be asked to respond to more narrow requests for specific documents or a specific range of documents. Even then, a defendant can still object to a subpoena on grounds such as those listed above, but the outcome of any such objection will be solely up to the court. So while a defendant may still end up being required to produce certain documents, this result would come at the end of a relatively efficient, fast, and straightforward discovery process.