How do common-law and continental European systems differ in requiring people to produce documents?

Common-law and continental European (civil-law) systems differ significantly in how they compel the production of documents during legal proceedings.

Common-Law Systems

In common-law jurisdictions, particularly in the United States, the discovery process allows parties to compel adversaries and third parties to produce documents and tangible objects for inspection before trial. This is often done without prior court approval. If a document is held by an opponent or a third party, a party may seek a subpoena duces tecum to force its production. The best evidence rule further reinforces the obligation to present original documents. In other common-law systems outside the U.S., discovery is generally more limited, often restricted to documents that are specifically identified and admissible as evidence.

Continental European Systems

In contrast, continental European systems generally lack a broad obligation for parties to produce documents. Judges typically order the production of evidence as the relevance of such information emerges during hearings. Parties are generally only required to produce documents if there is a specific obligation under substantive law, with Sweden being a notable exception that has developed more extensive production requirements. While a party intending to use a document must make it available to the other side, there are few procedures to secure information from an adversary in advance of a lawsuit, except to preserve evidence in danger of being lost.