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[null,"Prepared By:","Contributors:"]
[null,"Demarest Advogados"]
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["Gathering Evidence in Aid of Foreign Litigation Guide"]
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["Report Generated: 11/19/2025"]
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["View your report results on next tab"]

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["Question","Brazil"]
["Lex Mundi Gathering Evidence in Aid of Foreign Litigation Guide"]
["Does your jurisdiction permit gathering evidence in aid of foreign litigation?","Yes, it does.\n"]
["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.","Yes. The \nConvention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “\nHague Evidence Convention”) has been in force in Brazil since April 27, 2017 (by means of \nDecree 9,039/2017).\nThe \nHague Evidence Convention is in force in Brazil with the following particularities: (i) all letters rogatory sent to Brazil must be accompanied by a translation into Portuguese (declaration in relation to \nArticle 4, paragraph 2, pursuant to \nArticle 33); (ii) judicial authorities of a requesting state may assist the execution of letters rogatory in Brazil if authorization has been granted by the executing authority (declaration in relation to \nArticle 8); (iii) taking of evidence by diplomatic representatives, consular agents or commissioners is not allowed (reservation to \nChapter II, pursuant to its \nArticle 33); and (iv) Brazil will not comply with letters rogatory that have been issued for the purpose of obtaining what is known, in common law countries, as “pre-trial discovery of documents” (declaration in relation to\n Article 23).\nIn terms of other multilateral agreements, Brazil is also a signatory to (among others) (i) the\n Inter-American Convention on Letters Rogatory (Panama /1975) and \nAdditional Protocol (Montevideo/1979), in force in Brazil by means of \nDecrees 1,899/1996 and \n2,022/1996, respectively, as well as (ii) the \nProtocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labor and Administrative Matters of MERCOSUR (Las Leñas/1992), in force by means of \nDecree 2,067/1996.\nThe processing of the request for international legal cooperation to obtain evidence abroad may be based on a treaty in force between Brazil and the requested/requesting State, or in its absence, on the basis of reciprocity. If a treaty exists, the requirements listed therein must be followed for the purposes of such requests. Some treaties provide for specific forms that must be completed by the requesting State -- in the absence of a specific form, a letter rogatory is used.\nThe relevant local rules that must be complied with regarding letters rogatory are found in the \nBrazilian Civil Procedure Code (“\nCPC” - \nLaw 13,105/2015) and in the \nInternal Rules of the Brazilian Superior Court of Justice (“\nIRSCJ”). \nArticle 27, II of the \nCPC establishes that “\nInternational legal cooperation shall comprise [...] the gathering of evidence and information”. In its turn, the requirements for letters rogatory are established in \nArticle 260 of the \nCPC, which are: (i) the naming of the issuing judge and the judge who is to execute the act; (ii) the entire content of the motion, of the judicial order and of the power of attorney granted to the lawyer; (iii) the mention of the procedural act that establishes its purpose; (iv) the conclusion with the signature of a judge.\nThe requirements and process for granting exequatur to letters rogatory are contained in (i) \nArticles 960 to 965 of the \nCPC; and (ii) \nArticles 216-O to \n216-X of the \nIRSCJ. In sum, letters rogatory must (a) be issued by an authority with jurisdiction; (b) be preceded by suitable service of process; (c) be effective in the country where it was issued; (d) not violate a res judicata decision in Brazil; (e) be accompanied by an official translation, unless there is waiver provided for in a treaty; (f) not manifestly violate public policy. Exequatur will not be granted where a letter rogatory is found to be contrary to national sovereignty, human dignity and/or public policy (\nArticle 216-P of the \nIRSCJ).\n"]
["Do requests for gathering evidence require approval by a court or administrative body?  Please indicate the appropriate forum for making such requests.","Yes. In Brazil, the Ministry of Justice (through the Department for the Recovery of Assets and International Legal Cooperation) acts as the central authority for purposes of the \nHague Evidence Convention and, as such, is responsible for processing requests for legal assistance based on the convention.\nIn sum, the letter rogatory from the Central Authority of the requesting state is received by the Brazilian Ministry of Justice, which analyzes the documentation to verify whether all the formal requirements have been met.\nIf the requirements are not met, the Ministry of Justice will forward the information on the inadequacy of the letter rogatory to the Central Authority of the requesting state, so that it can complement the request with the necessary documentation.\nOn the other hand, if the requirements are met, the letter rogatory will be submitted to the Superior Court of Justice for the granting of exequatur, based on the rules set out above. If exequatur is granted, the Superior Court of Justice will forward the letter rogatory to the competent federal trial court for enforcement.\nAs mentioned above, Brazil approved the \nHague Evidence Convention with reservations and only accepts that evidence is produced in its territory by the Judiciary.\n"]
["What types of information can be sought?  Requests for Documents?  Written questions? Depositions?","There are no restrictions as to the types of information that can be sought. The most common requests are the ones for the obtention of documents, expert evidence and witness testimony.\nPlease note, however, that such acts must be undertaken in Brazil exclusively before Brazilian judicial authorities.\nOn the other hand, Brazil will not comply with letters rogatory that have been issued for the purposes of obtaining “\npre-trial discovery/disclosure of documents”.\n"]
["Who bears the burden of showing whether any privileges apply?","As a rule, the party who raises the existence of privilege will have the burden of proving it. In this sense, \nArticle 404 of the \nCPC establishes the grounds based on which a person (be it a party or a third party) may be exempted from disclosing documents in court (such as if the document disclosure entails the disclosure of facts regarding which, by reason of status or profession, he/she must maintain confidentially). Additionally, under \nArticle 402 of the \nCPC, if a third party refuses to comply with the obligation to disclose or denies having possession of a document, the judge shall schedule a special hearing to take the third party’s testimony, as well as that of the parties and, if necessary, of witnesses, after which judgment shall be rendered on this issue of document exhibition.\nRegarding privilege under Brazilian law, \nLaw No. 8.906/1994 (the \nBrazilian Bar Association Statute – the “\nBBA Statute”) and the \nBrazilian Bar Association Code of Ethics and Discipline (the “\nBBA Code”) prevent lawyers from disclosing privileged documents before courts without client’s consent. The lawyer’s duty of professional secrecy does not depend on the client’s instruction. In this regard, among other relevant provisions, \nArticle 36 of the \nBBA Code provides that “\nprofessional secrecy is a matter of public policy, regardless of the client's request of any reservation”. Moreover, the \nBBA Statute provides that violation of professional secrecy without good reason is a disciplinary infraction (\nArticle 34, VII). The protection against self-incrimination is also applied extensively in Brazil. The right not to self-incriminate corresponds to a fundamental human right under \nArticle 5, LXIII, of the \nBrazilian Constitution.\nOther relevant provisions of Brazilian law follow this same rationale, e.g., \nArticle 388 of the \nCPC provides the grounds based on which a party may not be obliged to testify (such as regarding facts that he/she is obliged by virtue of his/her office or profession to keep confidential.\n"]
["Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending?\n","Under \nArticle 963, III, of the \nCPC, one of the mandatory requirements for conceding exequatur to a letter rogatory is the showing that the order is effective in the requesting State. Additionally, under \nArticle 216-Q of the \nIRSCJ, in the process of granting exequatur before the Superior Court of Justice, the opposing party’s defense can only be based on the authenticity of the documents, the intelligence of the decision and the observance of the requirements set out in the \nIRSCJ.\n"]
["If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.)","As an initial remark, the taking of depositions (and production of other evidence) for use in foreign courts is an act that may be undertaken in Brazil only by Brazilian judicial authorities (i.e., they may not be taken as an out-of-court oral testimony by lawyers, as is commonly done in the U.S.). In domestic proceedings in Brazil, there is no pre-trial deposition -- witness testimony is exclusively produced at a hearing held in the evidentiary phase by live testimony.\nIn any event, the use of videoconference has become a common practice in Brazilian courts over the past years, particularly since the creation of the electronic judicial procedure by means of \nLaw 11,419/2006. The National Council of Justice’s \nResolution 105/2010 sets out rules regarding the documentation of hearings held by videoconference. The \nCPC also provides for the use of videoconferences (see, e.g., \nArticles 236, § 3; 385, § 3; 453, § 1; 461,\n\n§ 2 and 937, § 4 of the \nCPC).\nThus, if the judicial authority of the requesting state requests the use of video links, the Brazilian Central Authority will ask the Brazilian judicial authority to evaluate such request.\n"]
["Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings?","There are no other limitations apart from the rules specified above.\n"]
["May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding?  If not, what procedure must be followed before they can give evidence?  If such restrictions exist, are they enforced in practice?","There are no rules expressly prohibiting citizens residing in Brazil from voluntarily giving evidence in a foreign proceeding. However, we reiterate that, in Brazil, the production of evidence for use in foreign courts can only be undertaken by judicial authorities (i.e., they may not be taken as an out-of-court). Therefore, since the involvement of the Brazilian Judiciary system is required, witness testimony is generally obtained by means of a letter rogatory.\n"]
["Would your answers differ materially if the foreign proceeding is arbitration, and if so how?","If the foreign proceeding is an arbitration, there is some debate as to whether the request for production of evidence in Brazil must be done by means of a letter rogatory (\nArticle 960, § 1 of the \nCPC) or an arbitral letter issued by the foreign arbitral tribunal (“\ncarta arbitral”) to Brazilian courts (\nArticle 22-C of the \nBrazilian Arbitration Act: “\nThe arbitrator or the arbitral tribunal may issue an arbitral letter for the national court to practice or determine the performance, in the area of its territorial competence, of an act requested by the arbitrator”).\nWhile for letters rogatory, the first exequatur of the arbitral tribunal’s order must be granted by the Superior Court of Justice -- and then enforcement must be carried out before the competent federal court --, the same would not apply to arbitral letters (which are usually used in the context of domestic proceedings). If an arbitral letter is used, enforcement of the arbitral tribunal’s order would be sought before the competent state court in Brazil. It should be noted, however, that the possibility of resorting to the special/expedited proceeding of arbitral letters in this international context is still the focus of heated debates among commentators and authorities.\nIn both scenarios, the corresponding letters shall comply with the requirements set out in \nArticle 260 of the \nCPC and be accompanied by the arbitration agreement, the proof of appointment of the arbitral tribunal and the arbitrators’ acceptance of the function (\nArticle 260, § 3 of the \nCPC).\nFinally, the proceeding for the enforcement of the arbitral letter may be confidential in cases in which the arbitration agreement contains a confidentiality provision, under \nArticles 189, IV of the \nCPC and \n22-C, sole paragraph of the \nBrazilian Arbitration Act.\n"]