Norway
The discovery process for civil proceedings before Norwegian courts is not expansive. Each party is under a general duty to present such evidence as is necessary to establish a proper and complete factual basis for the court’s decision. That general duty includes an obligation to disclose the existence of material evidence that is not in the other party’s possession, provided there is good reason to believe that the other party is not aware of such evidence. This obligation extends not only to documents supportive of a party’s case, but also to documents that are detrimental to it, if such documents are in a party’s possession or if a party is able to access them through a third party it controls. However, these disclosure obligations do not extend to privileged information communicated between a party and its lawyers (including in-house counsel). In addition, there are other categories of documents that may be exempted from production, including documents containing commercially sensitive information.
In practice, disclosure of documents is achieved through a process of documentary requests. Each party to civil proceedings has the right to request the other party or third parties to produce specific and narrow categories of documents relevant to the matter. The request has to be specifically identified and so-called “fishing expeditions” are prohibited. If a party or third party does not comply with the documentary request, the court may order the party to submit the requested evidence. Such a decision is not enforceable against the parties - only against third parties. However, failure to comply with an order to disclose documents may of course be given weight in the court’s assessment of the evidence and judgment. Further, both parties to the proceedings and third parties may be compelled by the court to respond to a request as to whether it is aware of evidence and to carry out necessary investigations for that purpose. However, the court may not request disclosure of evidence of its own initiative.
Before the commencement of legal proceedings disclosure of documents can be sought where they are of significance in a dispute to which the applicant may become a party or intervener, and there is either: (i) a clear risk that the evidence will be lost or considerably weakened, or (ii) there are other reasons why it is “particularly important” to obtain access to the evidence before legal proceedings are instigated. The latter threshold is somewhat unclear; the legislator refers to the lack of access to evidence as a potential barrier for a negotiated agreement between the parties, however, such a threshold would be higher than the threshold which applies to evidence disclosed after the commencement of proceedings.