Yes. There are three ways to gather evidence in the Netherlands in aid of foreign litigation:

First, via the Hague Convention in the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (the "Hague Evidence Convention"). The Netherlands implemented this convention via the Evidence Convention (Implementation) Act. This act creates the possibility to gather evidence from witnesses or experts via a letter of request.

Second, via the Council Regulation ((EC) No. 1206/2001) on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters ("Evidence Regulation"). This regulation covers the taking of evidence in civil or commercial matters and only applies to EU Member States (except Denmark). In principle, the Evidence Regulation does not have an exclusive, but a facilitating effect, so that the applicability of this regulation does not have to preclude the submission of a claim for discovery to the Dutch court, if possible, on the basis of Article 843a of the Dutch Code of Civil Procedure ("DCCP") (see below). On November 25, 2020, Europe adopted a new regulation (Regulation (EU) 2020/1783). This new regulation will apply from July 1, 2022. One of the changes is that the new regulation provides for the obligation to process requests for evidence by electronic means (Article 7). Another change is that the new regulation aims to promote better, more frequent and faster use of direct taking of evidence in another EU Member State by hearing witnesses via videoconferencing (Article 12(4)).

Third, evidence can be gathered in aid of foreign proceedings via various national law instruments.

1. Document discovery

Based on Article 843a DCCP a party can seek a court order for the production of documents in the possession of an opposing party or a third party. This request can be made pre-trial or in the context of pending litigation in the Netherlands. A request can however also be made in a separate (summary) proceeding. It is not a requirement that proceedings on the merits of the dispute are or will be conducted in the Netherlands. The hallmark decision in this regard is Supreme Court 8 June 2012, ECLI:NL:HR:2012:BV8510 (Abu Dhabi Islamic Bank/ABN AMRO). This case concerned a matter in which Abu Dhabi Islamic Bank was involved in foreign litigation against a party that had purportedly committed fraud. Abu Dhabi Islamic Bank requested documents relevant to those proceedings from ABN AMRO in the Netherlands. The Supreme Court Judgment clarifies that the document discovery provision can be invoked if the documents are needed for litigation abroad.

2. Seizure to preserve evidence

Another example is a request for an ex parte preservation of evidence order (i.e. Anton Piller order, Articles 730, 843a and 1019b DCCP). It concerns a protective measure whereby the petitioner has leave to secure specific documents even before the claim for inspection or copying of those documents is made.

A preservation of evidence order can be requested in an international context. A good example is Supreme Court 28 September 2018, ECLI:NL:HR:2018:1775 (Dow Chemical/Organik). Parties had been involved in proceedings pertaining to the infringement of intellectual property rights in the United States. A U.S. judge had made an 'initial determination' that there had been spoliation of evidence in the United States. Dow Chemical subsequently, and successfully, requested an evidence preservation order. It sought to preserve evidence on computers at a factory of Organik in Rotterdam, the Netherlands.

In order to be able to attach evidence, permission from the court is required (a so-called attachment permit ('beslagverlof')). The request must meet specific (statutory) requirements. The court will carry out a marginal review of the request for seizure of evidence: it will only assess whether the conditions for the seizure have been fulfilled. If the court grants the request, a party is not (yet) allowed to review the seized documents. The party will need to initiate inter partes disclosure proceedings to access the materials.

3. Various other statutory provisions

Dutch law contains numerous statutory provisions that grant access to specific types of information. One example is Article 39f of the Judicial Data and Criminal Records Act. This provision enables victims under certain conditions to acquire information that has been obtained in criminal investigations by the Dutch Public Prosecutor. This provision can be used to obtain information needed for litigation abroad (see Supreme Court 20 April 2012, ECLI:NL:HR:2012:BV3436 (Staat/Trafigura)).

Yes, the Netherlands is a party to the Hague Evidence Convention.

Regarding the Hague Evidence Convention, the Netherlands made use of the option on the basis of Article 23 of this convention to make a reservation in respect of requests in the context of pre-trial discovery of documents. The Netherlands clarified that this reservation means it is not possible to require a person (i) to state what documents relevant to the proceedings are or have been in his possession or custody or at his disposal; or (ii) to produce all documents other than the particular documents specified in the request and which are, in the court's opinion, in his possession or custody or at this disposal. This reservation does therefore not exclude pre-trial requests for the production of documents. It only serves to avoid (too) broad requests.

On top of the statutory requirements in the Hague Evidence Convention, a party should also take into account the statutory requirements in the Evidence Convention (Implementation) Act. This act does not contain stricter requirements than the Hague Evidence Convention. It does contain procedural requirements, such as language requirements.

The Evidence Regulation is implemented by means of the EC Evidence Regulation (Implementation) Act. This act contains procedural rules but does not contain any stricter requirements than the Evidence Regulation itself. The EU Council and the domestic legislator assume that overly broad fishing expeditions fall outside the scope of the Evidence Regulation.

There are no other statutory requirements specifically for obtaining evidence in aid of foreign litigation.

Parties are free to gather evidence themselves, without the need for any approval by a court or administrative body. If opposing parties and third parties cooperate, there will be no need to ask approval or to invoke the Hague Evidence Convention or Evidence Regulation. A decision on the granting of a request under one of these instruments does require some form of approval.

The appropriate forum for making information requests:

Hague Evidence Convention: Information requests under the Hague Evidence Convention can be made in two ways. First, the requesting court can gather information by sending a letter of request to the court addressed. In the case of examination of witnesses or expert evidence, the letter of request shall be sent to the court in whose area the witnesses or experts, or the greatest number of them, are domiciled or reside. Where the letter of request is to be executed in different jurisdictions, each of the courts of these jurisdictions shall be competent to execute the letter of request in its entirety (see Article 5(2) of the Evidence Convention (Implementation) Act).

Second, the Hague Evidence Convention creates the possibility for investigative measures to be taken in another state - for example hearing witnesses and experts - by diplomatic or consular officials (Articles 15 and 16 of the Convention) or by commissioners appointed as such by the court before which the proceedings are conducted (Article 17 of the Convention). This is the extrajudicial method of gathering evidence. To this end, permission is required from the competent authority designated by the state where the investigative acts are performed. In the Netherlands, this is the preliminary relief judge ('voorzieningenrechter')) of the District Court in the district where the investigative act is to be performed.

In the case of examination of witnesses or experts by commissioners, the district where the investigative act is to be performed shall be the district where the witnesses or experts, or the greatest number of them, are domiciled or reside (see Article 22 of the Evidence Convention (Implementation) Act).

Evidence Regulation: The Evidence Regulation, like the Hague Evidence Convention, has two forms of taking of evidence abroad (the requested state), namely the letter of request to the court of the requested state so that it may carry out the requested taking of evidence (Articles 10-16 of the Evidence Regulation), and the direct taking of evidence by persons designated for that purpose under the law of the Member State of the requesting court: a judicial officer or another person, such as an expert (Article 17 of the Evidence Regulation).

The appropriate forum in the Netherlands in case of a letter of request is the District Courts. The request to perform an act of taking of evidence is made to the court within whose jurisdiction the execution of the request is to take place. In the case of the examination of witnesses or experts, the request shall be made to the court in whose area the witnesses or experts, or the largest number of them, are domiciled or reside. If the request will have to be executed in different jurisdictions, each of the courts of these jurisdictions shall be competent to execute the request in its entirety.

Witness evidence and expert evidence can be obtained via the Evidence Regulation and the Hague Evidence Convention. In that case, a party can request via the requesting authority for, for example, an examination of witnesses. The Dutch court will apply Dutch Procedural Law when executing the request, but at the same time it will facilitate requests for specific methods as much as possible. For example, in one case regarding the Evidence Regulation, the Rotterdam District Court facilitated a cross-examination (which is not a known method of gathering evidence used in the Netherlands). In another case, the court agreed to the use of a stenographer. The same court, however, decided not to allow video recordings to be made during a witness hearing in view of inter alia (i) the objection of the witness and (ii) the fact that these recordings had limited added value compared to the stenographer's report.

Written questions, interrogatories and depositions as such are not methods of gathering evidence in the Netherlands. However, this does not affect the fact that it is possible to make use of such instruments in the Netherlands. If the parties involved cooperate on a voluntary basis, no permissions or procedures are required. If a witness is not cooperative, the relevant Dutch authority will cooperate in, for example, taking depositions in the Netherlands on the basis of the Hague Evidence Convention.

Document discovery is possible via various (national law) instruments. For example via a claim instituted on the basis of Article 843a DCCP (see our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?"). Via this article, a party can request documents, whereby documents must be interpreted broadly and includes not only written documents but also photographs, films, USB sticks, DVDs, etc.

In the context of civil proceedings, the party who possesses documents that are requested to be produced may refuse the production if there are compelling reasons for doing so, such as the fact that confidential (personal and business) data, medical or financial data are involved. The party claiming the existence of compelling reasons will have the burden of showing which documents are privileged and the importance of confidentiality. The court handling the document production request must decide on the compelling reasons invoked, by giving reasons and weighing all the interests involved.

Regarding witness evidence, it is in principle up to the professional entitled to refuse to give evidence whether something has been entrusted to him in his capacity. As a result, a lawyer, a doctor, a priest or a public notary determines whether his right to refuse to give evidence applies.

This is the case because the basis of professional privilege is that the pursuit of truth must give way to the public interest that anyone can freely seek advice and assistance from certain professionals. Only if it is beyond reasonable doubt that what has been provided to the person entitled to refuse to give evidence has not been entrusted to him in a professional capacity, a claim to privilege will be set aside.

As the privilege serves a public interest and not (only) the individual interest of the person who turns to the professional for assistance and advice, it is not up to the client or patient to determine whether the privilege will be invoked. A client or patient can waive the professional's obligation of confidentiality. That however does not imply that the professional involved can no longer invoke the privilege. In that case, it will be up to the professional to decide what is more important, the interest in maintaining professional secrecy or the interest in discovering the truth.

The judge in charge of the examination of witnesses shall decide whether the reliance of a witness on the privilege is justified. The decision may be appealed.

The right to refuse to give evidence concerns everything communicated to the person entitled to give evidence in his capacity, so that in the question of whether the right to refuse to give evidence can be invoked, no distinction can be made between more or less confidential data.

In general, a person bringing a claim against another must have sufficient interest in the claim being granted (Article 3:303 Dutch Civil Code). If evidence is clearly non-admissible in the foreign jurisdiction in which the action is pending, it is doubtful whether there could be a legitimate interest.

Notably, one of the requirements of a claim on the basis of 843a DCCP is that a party has a legitimate interest (see our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?"). If the evidence is not admissible in the foreign jurisdiction in which the action is pending, it will most likely be difficult to prove that there is a legitimate interest. This may be different if (i) it is not yet clear whether the requested documents will be admissible at a later date, or (ii) a party could show that it is likely that the evidence can contain important leads to obtain other admissible evidence.

Lastly, it is worth mentioning that a request on the basis of the Evidence Regulation may not be made for the purpose of enabling the parties to obtain evidence that is not intended to be used in proceedings already pending or contemplated (see Article 1(2) of the Evidence Regulation). It could be argued that if a party already knows the evidence it is requesting cannot be used in the relevant proceedings, it cannot make such a request on the basis of the Evidence Regulation.

Dutch law does not contain any provisions for the taking of depositions. However, this does not affect the fact that the relevant Dutch authority will cooperate in taking depositions in the Netherlands if requested on the basis of the Hague Evidence Convention.

Dutch law does not contain any legal obstacles to the taking of evidence by video-link on the basis of the Hague Evidence Convention. See for the use of video-link under the Hague Evidence Convention and also the Guide to Good Practice on the Use of Video-Link under the Evidence Convention, Hague Conference on Private International Law 2020. All Dutch courts have computers, internet access and audio and videoconferencing equipment to facilitate the necessary.

The Evidence Regulation provides that the court requesting the taking of evidence in another Member State may (either via the direct way or indirect way), when doing so, request the use of modern communication technology, in particular video-conferencing and teleconferencing. Such a request must in principle be complied with (see Article 10(4) and Article 17(4) of the Evidence Regulation).

When focusing on Dutch procedural law, Article 166(3) DCCP stipulates that examination of witnesses must take place at the hearing. Parties have the right to be present during the examination of witnesses in their case and to put questions to the witness. The court will make a report of the examination of witnesses.

We note that the Dutch legislator introduced a temporary COVID-19 law. This law stipulates that, if due to the outbreak of COVID-19, holding a physical hearing is not possible in civil and administrative court proceedings, the oral proceedings shall be conducted by two-way electronic means of communication (see Article 2 Temporary Act COVID-19 Justice and Security).

Yes, the Netherlands has made use of Article 23 of the Hague Evidence Convention which allows states to make a reservation in respect of requests in the context of pre-trial discovery of documents. The Netherlands clarified that this reservation means it is not possible to require a person (i) to state what documents relevant to the proceedings are or have been in his possession or custody or at his disposal; or (ii) to produce all documents other than the particular documents specified in the request and which are, in the court's opinion, in his possession or custody or at this disposal. This reservation does therefore not exclude specific pre-trial requests for the production of documents. It only serves to avoid (too) broad requests (see also our response to "Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes.").

There are no other "Blocking Statutes" that limit the extent to which residents in the Netherlands may give evidence in a foreign court’s civil or criminal proceedings.

Yes, citizens may voluntarily give evidence in foreign proceedings. However, it is conceivable that they will violate other legal obligations in doing so. For example, if a citizen has agreed to stringent confidentiality provisions in a contract.

The answer to question 1 would be different in the event that the place of arbitration is outside the Netherlands.

Pursuant to Article 1074b DCCP, the Dutch court is competent to grant assistance to arbitration taking place outside the national borders. This may be an arbitration that has yet to be commenced, but may also be a pending matter. It is obvious that a party will request the Dutch court only in situations where Dutch witnesses, experts or locations are involved. It should be noted that Article 1074b DCCP does not provide that a party can request the Dutch judge to order inspection, copy or extract of certain documents. This article only relates to a pretrial witness examination, a pretrial expert examination or a pretrial site inspection. This does not exclude that a party can also apply to the judge to obtain written evidence in preliminary relief proceedings on the basis of Articles 843a and 1074a DCCP.

Article 1074b DCCP does not create jurisdiction for provisional measures of evidence. This will need to be examined separately.

According to the questionnaire relating to the Hague Evidence Convention, the Netherlands has already received or presented requests for information in aid of arbitration proceedings (abroad) on the basis of the Hague Evidence Convention.

The answers to the other questions would not differ (materially).