Yes. Polish jurisdiction permits gathering evidence in aid of foreign litigation in civil and commercial matters (gathering evidence in aid of foreign criminal investigation or litigation is regulated separately).

The scope and requirements for the execution of requests for gathering evidence in aid of foreign litigation are, depending on the case, regulated by EU Regulation No. 1206/2001 Taking of Evidence in Civil and Commercial Matters (and as from July 1, 2022, by EU Regulation 2020/1783 Taking of Evidence in Civil and Commercial Matters Recast), bilateral or multilateral conventions, or based on local law on the basis of the principle of reciprocity.

The EU Regulation applies to cooperation in civil and commercial matters between parties from Poland and other EU Member States, except Denmark, and prevails in relation to matters to which it applies over other provisions contained in bilateral or multilateral agreements or arrangements concluded by the Member States, and in particular the Hague Convention of 1 March 1954 on Civil Procedure and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

Poland is a party to two major multilateral conventions on mutual legal assistance in civil and commercial matters - the Hague Convention of 1 March 1954 on Civil Procedure and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. 

Poland has also concluded bilateral international agreements on mutual legal assistance in civil and commercial matters with Algeria, Morocco, Tunisia, Libya, Syria, Iraq, Egypt, Cuba, North Korea, China, Vietnam, Ukraine, Belarus, Russia, Turkey, Mongolia.

Yes, Poland is a party to the Hague Evidence Convention since 1996. Poland has made, however, several reservations and declarations to the Convention:

1. Poland does not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents;
2. Poland accepts letters of request only in the Polish language or with an attached Polish translation; it does not accept letters of request in either English or French (Poland has excluded the application of Article 4 para. 2 in its territory);
3. Poland excluded the application in its territory of all provisions of Chapter II, with the exception of Article 15 (i.e. Poland accepts only the taking of evidence by diplomatic officers or consular agents with respect to nationals of the state they represent and does not accept the taking of evidence by a person appointed as a commissioner);
4. Poland declared that it does not recognize the illegal referendum in Crimea and the illegal annexation of the Autonomous Republic of Crimea and the city of Sevastopol to the Russian Federation and therefore in principle considers the provisions of the Convention to continue to apply to the Autonomous Republic of Crimea and the city of Sevastopol as part of the territory of Ukraine; Poland has also declared that it will not engage in any direct communication or interaction with the illegal authorities in the Autonomous Republic of Crimea and the city of Sevastopol, as well as in certain districts of the Donetsk and Luhansk oblasts of Ukraine, and will not accept any documents or requests emanating from such authorities or through the authorities of the Russian Federation, but will only engage with the central authorities of Ukraine.

The full and up to date list and text of declarations and reservations made by Poland can be accessed at the HCCH website: https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=512&disp=resdn

In general, the gathering of evidence in aid of foreign litigation is conducted by a local court in the place where the evidence is located (pol. sad rejonowy) and pursuant to local laws (i.e., the Polish Civil Procedure Rules, which apply to the taking of evidence in both civil and commercial cases). To such an extent as is not contrary to the fundamental principles of Polish public policy, the local court may also observe any requirements for taking evidence as requested by a foreign court. 

The court which is to take evidence in aid of foreign litigation may refuse to do so or may refuse to observe any specific requirements for taking evidence as requested by a foreign court. Each instrument providing for mutual legal assistance provides for specific grounds of refusal.

In cases where the direct taking of evidence in the territory of Poland is contemplated, prior permission will generally need to be sought. Each mutual legal assistance instrument provides a specific procedure for the direct taking of evidence. According to the EU Regulation, courts may request for the taking of evidence directly in another member state, but a request to the central body or to the relevant authority of that Member State must be submitted. Furthermore, the direct taking of evidence may only take place if it can be carried out on a voluntary basis without the use of coercive measures. Requests which require approval must be made using a special form. A request to examine a person should not be executed where the person concerned invokes the right to refuse to give evidence or is prohibited from giving evidence: (a) under the law of the Member State of the requested court; or (b) under the law of the Member State of the requesting court, and such right or prohibition has been specified in the request, or, if necessary, at the instance of the requested court, has been confirmed by the requesting court. Moreover, the execution of a request may only be refused on grounds other than those referred to above, where one or more of the following grounds apply: (a) the request does not fall within the scope of this Regulation; (b) the execution of the request does not fall within the functions of the judiciary under the law of the Member State of the requested court; (c) the requesting court does not comply with the request of the requested court to complete the request for the taking of evidence within 30 days of the requested court asking it to do so; (d) a deposit or requested advance is not made within 60 days of the requested court asking for such a deposit or advance.

The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters requires approval for the direct taking of evidence by a court or administrative body. The execution of a Letter of Request may be refused only to the extent that - a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary, or b) the state addressed considers that its sovereignty or security would be prejudiced thereby. Execution may not be refused solely on the ground that under its internal law the state of execution claims exclusive jurisdiction over the subject matter of the action or that its internal law would not admit a right of action on it.

The central body or competent authority responsible for requests pertaining to the direct taking of evidence in the territory of Poland, both under the EU Regulation and the Hague Evidence Convention is:

Ministry of Justice (Ministerstwo Sprawiedliwości)

Department for International Cooperation and Human Rights (Departament WspóÅ‚pracy MiÄ™dzynarodowej i Praw CzÅ‚owieka)

Al. Ujazdowskie 11

00-950 Warsaw

Tel./Fax: +48 22 23-90-870 +48 22 628 09 49

Direct evidence taking may also be based on local laws, namely the Polish Civil Procedure Rules.

In general, all types of information relevant to the case at hand can be sought as long as it is not protected by secrecy law or law of privilege (e.g. attorney-client, medical doctor, mediator, etc.). In most cases, the court can examine a witness orally or request him or her to provide their testimonies in writing. The court can also request the production of documents, expert reports, and site inspections. The court can also compel the production of documents from third parties, although, in our view, it should exercise third-party disclosure orders with due observance of the principle of proportionality.

In general, Polish courts conduct gathering of evidence in aid of foreign litigation based on local laws. They can, however, observe any requirements made by a foreign court to the extent that those requirements are not contrary to the fundamental principles of public policy. Depositions are not explicitly envisaged in Polish Civil Procedure Rules. However, it is our view that they could be taken if requested by a foreign court, as we maintain that depositions are not within the purview of Polish public policy principles.  

This issue is not specifically regulated by law. We believe that courts should not execute the request to gather evidence if it was clear that it would breach the law of privilege. Another view is, however, that the court may execute a request to gather evidence and the entity who holds the privileged information or document could rely on it and refuse to testify/answer a specific question or produce a document.

There is no general formal requirement to establish a priori that the information being sought is allowable in the country of origin of the request for legal assistance. However, in some instances - particularly if the evidence sought in the territory of Poland takes the form of testimony of a person that has a privilege or duty to refuse to give evidence under the laws of the country of origin of the request, the existence of such a privilege or duty should be referred to in the letter of request or confirmed later, for that person to be able to effectively claim the right or duty to refuse.

We understand that the term “deposition” means taking a sworn out-of-court oral or written testimony of a witness for subsequent use in litigation. In that sense, depositions are not allowed by Polish Civil Procedure Rules. In practice, it is common to conduct interviews with potential witnesses prior to issuing a claim. Such interviews need to be held on a voluntary basis and witnesses must not be coached.

It is debatable whether depositions in aid of foreign litigation could be taken on a voluntary basis. We believe that depositions, including those taken remotely on a voluntary basis, do not breach international or local laws.

Although Polish Civil Procedure Rules do not provide for depositions in local litigation, we maintain that this does not prevent the authorization of depositions in aid of foreign litigation. Polish Civil Procedure Rules allow the taking of evidence in aid of foreign litigation in accordance with foreign laws as long as they are not in breach of fundamental principles of public policy. They also allow a foreign court or individual to be authorized to take evidence in Poland directly, including remotely. Hence, it is our reading of those rules that a local court could authorize depositions in Poland, including when conducted remotely.

Poland has not adopted any "Blocking Statutes" whose purpose would be to prevent individuals or corporates from offering evidence to foreign courts or foreign courts from taking evidence directly from individuals or corporates in foreign territory without recourse to convention-certified procedures.

There are no laws preventing individuals residing in Poland or corporates seated in Poland from offering evidence to foreign courts on a voluntary basis.

It is debatable whether foreign courts can, on a voluntary basis, examine a witness residing in Poland via a video link or request an individual or corporate to produce documents. Some commentators say that remote examination of witnesses, especially by courts from civil law jurisdictions, amounts to an exercise of state powers (acta iure imperi) and, therefore, may be in breach of the principle of territoriality and result in an abuse of procedure set forth in mutual legal assistance instruments. We consider that as long as the examination of a witness is conducted on a voluntary basis and no sanctions are imposed (contempt of court or equivalent), it is not prevented by international and local law. Also, based on our experience, foreign courts do examine witnesses residing in Poland via video link without seeking prior permission from the Polish authorities. Also, Polish courts routinely reach out directly to individuals residing overseas without following any mutual legal assistance procedures and conduct their oral examination via a video link or alternatively request them to provide witness statements in writing or produce documents in their control 

In all cases, when an individual or corporate is offering evidence to a foreign court on a voluntary basis the issue of the permissibility of it from the perspective of data protection laws should be determined.

Arbitral proceedings are private in nature and hence arbitral tribunals may request individuals or corporations in Poland to produce evidence (documents or witness testimonies) on a voluntary basis. Arbitral tribunals seated in Poland or elsewhere do not have the power to compel individuals or corporations to produce evidence. If needed, however, arbitral tribunals seated in Poland or elsewhere can seek assistance from state courts. State courts can gather evidence in aid of arbitral proceedings and to this end may exercise their statutory powers to compel individuals or corporations seated in Poland to produce evidence.