By Richard W. Wigley and Xu Jing of King & Wood’s Intellectual Property Group

Among the most frequent questions posed by overseas corporate counsel overseeing litigation involving their companies in P.R.C. courts are those questions relating to evidence collection. For the attorneys from the United States, those questions will often focus upon the "discovery" practices of P.R.C. courts. As they come from a litigation environment which often has liberal discovery options, it often comes as a surprise to foreign attorneys – especially U.S. attorneys – that the P.R.C. legal system has no direct equivalent to U.S.-style discovery practices. Collecting the required evidence in support of litigation in the P.R.C. is subject to very different guidelines from those guidelines of many foreign jurisdictions. This article will take a very brief look at evidence collection practices in the P.R.C. and offer some potential alternatives in the P.R.C. to "discovery" practices.

Guidelines for Evidence submission to P.R.C. courts can be found in Chapter VI of the Civil Procedure Law of the P.R.C. ("Civil Procedure Law") 1, as well as in Some Provisions of the Supreme People’ s Court on Evidence in Civil Procedures ("Provisions") 2. In the P.R.C., as noted in Civil Procedure Law, parties are responsible for submitting their own evidence 3 and that evidence can take the form of “(1) documentary evidence; (2) material evidence; (3) audio-visual reference materials;(4) testimony of witnesses; (5) statements of parties; (6) expert conclusions; and (7) records of inquests.” As opposed to, for instance, certain foreign courts which may have a preference for, say, witness testimony, P.R.C. courts have a preference towards documentary evidence, though all of types of evidence noted above are acceptable. Specifically, the "testimony of witnesses" is less prevalent in P.R.C. courts in civil litigation than in, for instance, U.S. courts.

In addition to a focus on documentary evidence by the P.R.C. courts, there are very clear guidelines established so that all evidence, including documentary evidence, may have to be offered to the Court under time constraints that may seem limiting to some foreign attorneys. As per Article 33 of the Provisions, the time period for producing evidence can be as little as 30 days from the time the Court accepts the case and serves notice to the parties of the evidence production period 5, though a period of 60 days may be more typical in foreign-related cases (though a request for an extension of the evidence submission period is required). The 30-day period (minimum) noted shall start from the date that the party receives the notice for evidence production. On the one hand, fans of judicial efficiency may applaud the desire of the P.R.C. bench to push along these lawsuits, but for the litigating parties, these limited evidence production periods can often strain their abilities to collect relevant evidence.

Evidence "formed" outside the P.R.C., as per Article 11 of the Provisions, will have to be notarized and legalized accordingly. 6 Furthermore, Article 12 of the Provisions notes that any foreign language evidence will have to be translated into the Chinese language and the translations, as well as the original documents/materials will have to be submitted to the Court. 7 For parties with foreign interests, the Court may provide some leeway and extend the evidence production period when there are certain requirements for overseas-originated evidence through the above-noted request for an extension of the evidence submission period.

All of the above may lead a U.S. attorney to believe that evidence collection in the P.R.C. is not much different that that of in a U.S. jurisdiction, but at some point in the litigation process there will often be the inevitable question: "but what about discovery?"  In the P.R.C., parties cannot merely make a discovery request of the opposing party, as the relevant statutory law (i.e. the Civil Procedure Law) has no provisions allowing for U.S.-type discovery. What then is a party to do if it desires certain evidence which is held by another party, but cannot simply compel the other party to turn over the evidence via a discovery request? Two alternative means of gaining access to information held by the other party with the full support and approval of the Court are via: 1) An Order for Evidence Preservation and/or 2) Court-requested Expert Conclusions or Opinions.

Article 74 of the Civil Procedure Law provides that  "when there is the likelihood that evidence may be destroyed or lost or difficult to obtain later on, the participants in proceedings may apply to the People’ s Court for the evidence to be preserved. The People’ s Court may also on its own initiative take measures to preserve such evidence". 8 Though it should not be seen as a given that a specific P.R.C. court will grant an Order for Evidence Preservation, it is often a valuable tool used by litigating parties to gain access to the opposing parties evidence which is "difficult to obtain" .9 As noted in the Provisions, however, there are time constraints associated with requests for evidence preservation (7 days prior to the end of the evidence production period) and a guarantee may be required. 10

Upon gaining access to an opposing party" s evidence, it is possible for the party to use the evidence directly in support of its case or to, alternatively, have an "expert"  issue an Expert Opinion on a subject matter based on the evidence preserved. Article 61 of the Provisions allows that "the parties concerned may apply to the People’ s Court to have one or two persons with professional knowledge to appear in court to make accounts of the specialized questions relating to the case". 11 These "experts" can take advantage of evidence collected by the party, as well as evidence preserved under an evidence preservation order.

However, if the evidence sought is not available via direct means or via an evidence preservation order, there exists the possibility that a party may have the Court obtain certain evidence in support of a professional evaluation to be overseen by the Court. Article 72 of the Civil Procedure Law provides that "when the People’ s Court deems it necessary to make an evaluation of a specialized problem, it shall refer to an authentication department authorized by law for the evaluation". 12 When combined with the Court’ s authority to "obtain evidence from the relevant units or individuals, and such units or individuals may not refuse to provide evidence"  as defined in Article 64 of the Civil Procedure Law, this allows that if the Court’s expert needs access to evidence held by the opposing party in order for the Court to obtain an expert opinion (where such evidence is not protected or privileged), the Court has the power to grant to the expert that access. 13

While many foreign (and specifically U.S.) attorneys overseeing litigation in the P.R.C. will still often lament the lack of discovery procedures in China, there are, as noted above, some tools available to gain access to the needed evidence held by the other party. As to which option(s) may work best for a specific litigation in the P.R.C., as always, the first step it to contact an appropriate and duly-registered P.R.C. attorney.

Note: this publication is for informational purposes only and it does not constitute a legal opinion.

1Civil Procedure Law of the People’s Republic of China, promulgated and effective on April 9, 1991, Amended on October 28, 2007

2Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures, promulgated and effective on April 1, 2002.

3Supra 1 at Article 64.

4 Id. at Article 63.

5Supra 2 at Article 33.

6 Id. at Article 11.

7 Id. at Article 12.

8 Supra 1 at Article 74.

9 Id.

10Supra 2 at Article 23.

11 Id. at Article 61.

12 Supra 1 at Article 72.

13 Id. at Article 64.