Can a Japanese Court Order Document Production from the Opposing Party or Third Parties?

Japanese Attorney at Law - Bengoshi L.L.

30 May 2025 • 8 min read

In the pursuit of truth and fairness in civil litigation, access to relevant documentary evidence is often paramount. However, crucial documents may reside in the hands of the opposing party or even non-party third parties. Japanese civil procedure provides a mechanism to compel the production of such documents through a "Document Production Order," or Bunsho teishutsu meirei (文書提出命令). While this tool is vital for evidence gathering, it operates under specific rules and with notable limitations, particularly when compared to the broad discovery processes found in jurisdictions like the United States. Understanding how this system works is essential for any business navigating legal disputes in Japan.

I. Understanding Document Production Orders (Bunsho teishutsu meirei) in Japan

A. Purpose and Legal Basis (Code of Civil Procedure, Arts. 219 et seq.)

The primary purpose of the document production order system in Japan is to help discover the truth by enabling parties to access relevant documents held by others, thereby alleviating the imbalance of information that can exist between litigants. The legal basis is found primarily in Articles 219 through 228 of the Code of Civil Procedure (Minji Soshō Hō 民事訴訟法).

This system empowers a party to petition the court to order another party (or a third party) who possesses a specific document to produce it for inspection by the court and, if deemed appropriate, by the requesting party.

B. Who Can Request and Who Can Be Ordered?

Requesting Party: A party to the lawsuit (plaintiff or defendant) can file a motion for a document production order.
Ordered Party: The order can be directed at:
- The opposing party in the litigation.
- A non-party third party who holds the document.

C. Key Distinction from U.S.-Style Discovery

It is crucial for those familiar with U.S. discovery to understand that the Japanese document production order system is significantly more limited and targeted:

No Broad "Fishing Expeditions": Japanese law does not permit general requests for "all documents related to X." The requesting party must identify the specific document(s) sought or at least describe them with sufficient particularity.
Emphasis on Specificity: The motion must detail why the specific document is relevant and necessary.
Judicial Gatekeeping: The court plays a more active role in scrutinizing the necessity and propriety of the request before issuing an order, rather than relying on party-driven broad discovery.
Limited Scope of Depositions and Interrogatories: While not the focus here, it's worth noting that oral depositions and written interrogatories as understood in U.S. discovery are also far more restricted or non-existent in general Japanese civil practice.

II. The Process of Requesting a Document Production Order

A. Filing a Motion (Mōshitate 申立て)

A party seeking document production must file a formal motion with the court where the lawsuit is pending.

B. Requirements for the Motion (Code of Civil Procedure, Art. 221)

Article 221 mandates that the motion for a document production order must specify:

Designation of the Document (Bunsho no hyōji 文書の表示): The document(s) sought must be identified as clearly as possible. This can be by title, date, author, recipient, or a sufficiently specific description of its nature and content to allow the holder to identify it.
Gist of the Document (Bunsho no shushi 文書の趣旨): A summary of what the document is about or what it contains.
Holder of the Document (Bunsho no shojisha 文書の所持者): The party or third party alleged to be in possession or control of the document.
Fact to be Proven (Shōmei subeki jijitsu 証明すべき事実): The specific fact(s) in issue that the requesting party intends to prove by means of the document. This establishes relevance.
Grounds for the Obligation to Produce (Teishutsu gimu no gen'in 提出義務の原因): The legal reason why the holder is obligated to produce the document. This often refers to the general obligation under Article 220 or specific circumstances that overcome any claimed privilege.

If the motion lacks sufficient specificity, the court may dismiss it or order the requesting party to clarify.

III. The General Obligation to Produce Documents

The starting point under Japanese law (Code of Civil Procedure, Art. 220, main sentence) is that a holder of a document generally cannot refuse to produce it when ordered by a court in the course of litigation to which it is relevant. However, this general obligation is subject to significant exceptions.

IV. Grounds for Refusing Document Production (Exceptions to the Obligation - Code of Civil Procedure, Art. 220, Items 1-4)

Article 220 lists several categories of documents that a holder may refuse to produce. These exceptions are crucial and often the subject of legal argument.

A. Documents Prepared Solely for the Holder's Internal Use (The "Self-Use Document" Proviso - いわゆるjiko shiyō bunsho 自己使用文書) (Art. 220, Item 4, introductory part, often interpreted in conjunction with its spirit)

This is one of the most frequently invoked and debated grounds for refusal, particularly concerning internal corporate documents. While Article 220, Item 4 directly lists specific privileged categories (see below), its introductory part states "...documents prepared exclusively for the use of the holder (excluding documents possessed by the State or a local public entity, which are prepared by a public officer in the course of his/her duties)..."

Interpretation: The scope of "documents prepared exclusively for the use of the holder" (often termed jiko shiyō bunsho) is not always clear-cut. It generally aims to protect documents that are purely for internal deliberation, internal notes, or drafts that were never intended for external disclosure and whose disclosure would unfairly prejudice the holder by revealing internal thought processes not meant for public consumption.
Corporate Internal Documents: This can include internal memos, meeting minutes intended only for internal strategy, internal investigation reports (though this can be contentious if they relate to the facts in dispute), and drafts of communications.
Balancing Act: Courts often engage in a balancing act, considering the nature of the document, the purpose of its creation, the extent to which it was kept confidential, the requesting party's need for it, and whether non-disclosure would severely impede the discovery of truth.

B. Specific Privileged Categories under Article 220, Item 4 (a) to (d):

These are more specific exemptions within the broader category of potentially non-producible documents.

Item 4(a): Risk of Criminal Prosecution or Maintenance of Reputation for Self or Close Relatives: Documents that could lead to criminal prosecution or conviction for the holder, their spouse, certain relatives, or individuals in similar close relationships, or documents that could harm their reputation.
Item 4(b): Professional Secrets (Shokugyō no himitsu 職務執行シタル者又ハ職務上ノ秘密ニ関スル事項ニシテ黙秘ノ義務アルモノ): Documents concerning secrets learned by certain professionals in the course of their duties, where they have a legal or professional duty of silence that has not been waived. This includes:
- Doctors, dentists, pharmacists, midwives.
- Attorneys-at-law (bengoshi 弁護士), patent attorneys (benrishi 弁理士), notaries.
- Religious officials.
  The scope of attorney-client privilege in Japan, particularly for in-house counsel communications, is narrower and less clearly defined than in common law systems, although protections for litigation-related documents prepared with external counsel are generally recognized.
Item 4(c): Technical or Professional Secrets (Gijutsu-jō matawa shokugyō-jō no himitsu 技術上又は職業上の秘密): This is a vital exception for businesses, covering trade secrets, proprietary know-how, confidential research and development data, customer lists, and other sensitive commercial information.
- Requirements for Protection: To claim this privilege, the holder must typically demonstrate:
  - The information is genuinely a secret (not publicly known or easily ascertainable).
  - It has commercial value due to its secrecy.
  - Reasonable steps have been taken to maintain its secrecy.
  - Disclosure would cause significant competitive or financial detriment to the holder.
Item 4(d): Documents Prepared Exclusively for Self-Use (Reiteration/Clarification): This explicitly covers documents prepared exclusively for the use of the holder (as mentioned above, linking back to the broader jiko shiyō bunsho concept).

C. Other Grounds for Refusal (Art. 220, Items 1-3):

Item 1 (Cited Documents): Documents that the holder themselves has cited or referred to in the litigation.
Item 2 (Right to Demand): Documents that the requesting party is independently entitled by law to demand delivery or inspection of (e.g., a beneficiary's right to inspect certain trust documents).
Item 3 ("Benefit/Relationship Documents" - Rieki bunsho / Kankei bunsho 利益文書・関係文書): Documents prepared primarily for the benefit of the holder or their close relatives, or concerning legal relations between the holder and such persons. This often overlaps with privacy concerns.

V. In Camera Proceedings (インカメラ手続 - In kamera tetsuzuki)

When a holder objects to producing a document, claiming one of the above exemptions (especially under Item 4 concerning secrets or self-use), the court faces a dilemma: how to assess the validity of the objection without forcing disclosure of the very information sought to be protected?
Article 223, Paragraphs 3 to 7 of the Code of Civil Procedure provide for an in camera procedure:

Purpose: To allow the court to privately examine the document in question to determine whether an obligation to produce it exists, or whether an exemption applies, without disclosing the document's contents to the requesting party at this stage.
Procedure: The court can order the holder to submit the document directly and solely to the court. The judge(s) then review the document in camera (i.e., in private chambers). The requesting party (and their counsel) typically cannot inspect the document during this in camera review. The court hears arguments from both sides on the applicability of any claimed privilege.
Importance: This is a crucial procedural safeguard, particularly when valuable trade secrets or highly sensitive personal information are at stake. It allows for a judicial determination while attempting to minimize premature or unwarranted disclosure.

VI. Document Production Orders Against Third Parties

Under Article 226 of the Code of Civil Procedure, the court can also issue a document production order against a non-party third party if the requirements for such an order (similar to those for parties) are met.

Courts may exercise greater caution when ordering production from a non-party, balancing the requesting party's need for evidence against the burden and potential intrusion upon the third party.
The third party also has the right to claim the exemptions under Article 220.

VII. Sanctions for Non-Compliance with a Production Order

Failure to comply with a document production order without legitimate grounds carries consequences:

A. Against a Party (Code of Civil Procedure, Art. 224):

If a party fails to produce a document as ordered, the court may, in its discretion, deem the opposing party's allegations concerning the description or purport of the document to be true (an adverse inference, often referred to as shinjitsu gisei 真実擬制 – presumption of truth).
If it is extremely difficult for the opposing party to make specific allegations about the document's content or to prove facts by other means, the court may deem the facts that the opposing party sought to prove by that document as true.
This can be a very powerful sanction, potentially deciding a key factual issue against the non-complying party.

B. Against a Third Party (Code of Civil Procedure, Art. 225):

A third party who fails to comply with a production order without just cause may be subject to a non-penal fine (karyō 過料) imposed by the court. There is no direct power of contempt to imprison a non-complying third party for this.

VIII. Practical Implications for Businesses

Document Management and Retention Policies: The potential for document production orders underscores the importance of having robust and consistent document management and retention policies. Knowing what documents exist, where they are, and how they are classified can be critical.
Protecting Trade Secrets and Confidential Information:
- Proactively identify and implement measures to protect genuine trade secrets (e.g., access controls, confidentiality markings, NDAs). This strengthens the basis for claiming the "technical or professional secrets" exemption.
- Be prepared to utilize the in camera procedure if ordered to produce potentially sensitive documents.
Responding to Production Requests:
- Carefully analyze any motion for document production. Assess whether the documents are sufficiently identified and whether any legal grounds for refusal apply.
- If grounds for refusal exist, assert them clearly and specifically.
- If an in camera review is ordered, cooperate with the court.
Managing Expectations (Compared to U.S. Discovery): Businesses (and their U.S. counsel) accustomed to the breadth of American discovery must understand that Japanese document production is a more targeted, judicially supervised process. Requests must be specific, and broad "fishing expeditions" for unknown documents are generally not permitted. The focus is on producing identified or identifiable documents relevant to specific facts to be proven.

Conclusion

Document production orders (Bunsho teishutsu meirei) serve as an important, though not unlimited, evidence-gathering tool in Japanese civil litigation. They aim to strike a balance between the need for truth-finding and the protection of legitimate interests in confidentiality and privacy. For businesses, understanding the specific grounds for requesting and resisting production, the critical role of in camera review for sensitive materials, and the potentially severe consequences of non-compliance is essential for effectively navigating legal disputes and managing documentary evidence within the Japanese legal framework.