Can You Force Document Production in Japanese Litigation? The 'Bunsho Teishutsu Meirei' System Explained

In any civil litigation, documentary evidence often plays a pivotal role in establishing facts and determining the outcome of a dispute. But what happens when crucial documents are in the hands of the opposing party or even a third party who is unwilling to voluntarily disclose them? Japanese civil procedure provides a mechanism to address this: the Bunsho Teishutsu Meirei (文書提出命令), or Order to Produce Documents. This system allows a party to petition the court to compel the holder of a document to submit it for use as evidence. It's important to understand that Japan does not have the broad, party-driven pre-trial discovery processes common in jurisdictions like the United States; the Bunsho Teishutsu Meirei is a specific judicial tool employed during the course of pending litigation. This article will explore the scope of this system, the grounds for ordering document production, common exceptions that protect confidentiality, procedural aspects such as in camera review, and the significant consequences of non-compliance.

The Rationale and Evolution of Document Production Orders

The primary purpose of the document production order system is to ensure that parties have access to relevant documentary evidence necessary for proving their claims or defenses, or for accurately understanding the truth of the matters in dispute. By facilitating access to pertinent information, the system aims to promote fair and just outcomes based on a more complete factual picture.

This mechanism is particularly crucial in situations where there is a significant information asymmetry—where one party, often a corporation, financial institution, or governmental body, exclusively possesses documents vital to the other party's case. The illustrative case in Chapter 3-12 of the reference material, concerning a failed sublease business venture where the plaintiff sought internal bank documents (such as loan approval forms and internal policy directives) to prove the bank's alleged misrepresentations or failure to disclose risks, exemplifies such a scenario.

Historically, prior to the major reforms of the Code of Civil Procedure (CCP) in 1996 (which came into effect in 1998), the grounds for compelling document production under the old CCP (Art. 312) were relatively limited. Production was primarily ordered for:

1. Documents explicitly cited by the holder in the litigation itself.
2. Documents which the applicant had a substantive legal right to inspect or demand delivery of (e.g., under a contract or specific statute).
3. Documents created for the benefit of the applicant or concerning a legal relationship between the applicant and the document holder.

However, even under the old regime, there was a discernible trend in case law towards interpreting these grounds more broadly, particularly in contexts like medical malpractice where patient records held by hospitals were crucial, or in product liability cases. This trend was driven by a growing recognition of the need to rectify evidentiary imbalances and enhance the court's ability to find the truth.

The General Obligation to Produce Documents under the Current CCP (Article 220)

The 1996 CCP reforms significantly expanded the general obligation to produce documents. The current Article 220 CCP now establishes a much broader, more general duty, while also delineating specific exceptions. The categories of documents that are generally subject to a production order include:

• Item 1: Documents that the holder has referred to in the litigation for the purpose of their own allegations or defense.
• Item 2: Documents that the party applying for the order has a substantive legal right to demand the holder to deliver or allow inspection of (e.g., a shareholder's right to inspect company accounting books under the Companies Act).
• Item 3: Documents that were prepared for the benefit of the applicant, or documents concerning a legal relationship between the applicant and the document holder. These are often termed "interest documents" (rigai bunsho) or "legal relationship documents" (hōritsu kankei bunsho).
• Item 4 (The General Category): This is the cornerstone of the expanded obligation. It makes any other document producible, unless it falls into one of the specifically enumerated exceptions listed within this item.

Exceptions to the General Obligation to Produce (CCP Article 220, Item 4)

While Item 4 of Article 220 establishes a broad default rule of production, it is qualified by several crucial exceptions designed to protect legitimate interests in confidentiality, privacy, and effective internal functioning of organizations. These exceptions are critical and frequently litigated:

1. Documents Concerning Self-Incrimination or Reputational Harm (Sub-item (a) [イ]): Documents relating to matters for which the holder (or their close relatives, or persons in similar relationships as specified by Cabinet Order) could face criminal prosecution or conviction, or documents whose disclosure could damage their reputation.
2. Documents Containing Professional Secrets (Sub-item (c) [ハ], formerly (b) [ロ] at the time the reference material was likely current): Documents containing confidential information obtained by individuals in certain professional capacities (e.g., doctors, dentists, lawyers, patent attorneys, notaries, religious officials) through their duties, and which pertain to matters that should remain secret. Production can be refused unless the professional is released from their duty of secrecy. Financial institutions also sometimes invoke a broader concept of "professional secrecy" for client-related information.
3. Documents Containing Technical or Trade Secrets (Also part of Sub-item (c) [ハ]): Documents that primarily contain technical or trade secrets are also generally exempt.
4. "Documents Prepared Exclusively for the Holder's Own Use" (Jiko Shiyō Bunsho - 自己使用文書) (Sub-item (d) [ニ], formerly (c) [ハ] in the 1996 version commonly referenced): This is one of the most significant and frequently contested exceptions, particularly in the context of internal corporate documents.Currently, internal deliberative documents like loan approval forms (ringisho) continue to receive relatively strong protection under the jiko shiyō bunsho exception. However, other categories of internal corporate documents, especially those that disseminate finalized policies, contain objective data, or are prepared with an eye towards external regulatory scrutiny, are less likely to be shielded from production. The specific content, purpose, and context of creation of the document remain crucial in each case.
   • Legislative Background: This exception was introduced as a compromise during the 1996 CCP reforms. There were strong concerns, especially from the business community, that an overly broad general production duty would force the disclosure of sensitive internal decision-making documents, such as internal approval memoranda (ringisho - 稟議書), potentially chilling candid internal discussions and strategic planning.
   • Supreme Court's Interpretation of Jiko Shiyō Bunsho: The leading case establishing the criteria for this exception is the Supreme Court decision of November 12, 1999 (Minshū Vol. 53, No. 8, p. 1787), which specifically concerned a bank's internal loan approval forms (kashidashi ringisho). According to this ruling, a document qualifies as a jiko shiyō bunsho if it meets the following cumulative conditions:
     1. Considering its purpose of creation, its content, the circumstances under which its current holder came to possess it, and other relevant factors, it was created exclusively for the internal use of its originator or current holder and was not intended for external disclosure.
     2. Its disclosure would likely cause significant and unavoidable disadvantage to the holder. This disadvantage typically relates to concerns such as the infringement of personal privacy (if the document contains private information about individuals within the organization) or the obstruction of the free and candid formation of internal opinions and decisions within the organization.
     3. And there are no "special circumstances" (tokudan no jijō) that would nevertheless justify overriding the confidentiality interest and ordering disclosure in the specific case.
        In the 1999 case, the Supreme Court concluded that bank loan approval forms generally satisfy the first two conditions and are thus presumptively jiko shiyō bunsho, exempt from production, unless such "special circumstances" are demonstrated by the applicant. This ruling has had a profound impact on the production of internal corporate records.
   • Subsequent Developments in Case Law:
     • A Supreme Court decision on December 14, 2000 (Minshū Vol. 54, No. 9, p. 2709) applied similar reasoning to deny the production of loan approval forms even in the context of a members' derivative lawsuit against the directors of a credit union, reinforcing the protected status of these documents.
     • However, in a case where a financial institution had collapsed, the Supreme Court on December 7, 2001 (Minshū Vol. 55, No. 7, p. 1411), found that "special circumstances" existed, warranting the production of loan approval forms, suggesting a degree of flexibility in extreme situations.
     • The scope of jiko shiyō bunsho was further clarified by the Supreme Court on February 17, 2006 (Minshū Vol. 60, No. 2, p. 496). This case concerned internal bank directives (shanai tsūtatsu bunsho) issued from the bank's headquarters to its various branches. The Court held that such documents, particularly those outlining general business operational guidelines or reporting objective business results, did not typically qualify as jiko shiyō bunsho. The reasoning was that the disclosure of these types of documents, which often reflect finalized policies or factual summaries rather than deliberative processes, would not directly or significantly impede the bank's free internal decision-making process (thus failing to meet the second criterion of the 1999 test).
     • In another important decision on November 30, 2007 (Minshū Vol. 61, No. 8, p. 3186), the Supreme Court considered internal self-assessment documents prepared by a bank for classifying its debtors. These documents were part of the bank's asset evaluation process, which was required by regulatory authorities and subject to their potential verification. The Court found that such documents were not created "exclusively for internal use" (thus failing the first criterion of the 1999 test) and therefore had to be produced.

Procedure for Obtaining a Document Production Order

The process for seeking a document production order involves several steps:

1. Application (Mōshitate): The party seeking production files a formal application with the court presiding over the main litigation (CCP Art. 221(1)).
2. Required Specifications in the Application (CCP Art. 221(1)): The application must clearly specify:
   • The designation or identification of the document sought.
   • The gist or summary of the document's contents.
   • The current holder of the document.
   • The fact(s) that the applicant intends to prove by using the document (yōshō jijitsu).
   • The legal grounds upon which the production order is sought (i.e., why the document falls under one of the categories in CCP Art. 220 requiring production).
3. Additional Requirement for Documents under the General Obligation (CCP Art. 221(2)): If production is sought under the broad general obligation of Article 220, Item 4, the applicant must also demonstrate that it is necessary to use this specific document as evidence, implying that other means of proof are insufficient or unavailable.
4. Procedure for Identifying Documents (Tokutei no Tame no Tetsuzuki, CCP Art. 222): If the applicant knows that a relevant document exists but lacks sufficiently precise details to designate it or state its gist accurately in the application, they can request the court to formally question the alleged holder of the document. The purpose of this questioning is to elicit information that would enable the applicant to properly specify the document in their production request. This is a limited tool designed to assist applicants who have a reasonable basis to believe a document exists but cannot describe it with the required particularity.
5. Court's Decision (Kettei): After considering the application and any response from the document holder, the court issues a ruling (kettei) either granting or denying the production order (CCP Art. 223(1)). This ruling is subject to an immediate appeal (sokuji kōkoku) by the aggrieved party (either the applicant if denied, or the holder if ordered to produce).
6. Partial Production: The court has the authority to order the production of only a part of a document if the non-producible portions (e.g., those containing exempt information) can be reasonably severed from the producible parts (CCP Art. 223(1), second sentence).

In Camera Review (イン・カメラ手続 - In Kamera Tetsuzuki)

A significant procedural safeguard built into the document production system is the in camera review process, provided for in CCP Article 223(6).

• Purpose: When a document holder claims that a document sought under Article 220, Item 4 is exempt from production (e.g., because it is a jiko shiyō bunsho, contains professional secrets, or trade secrets), the court has the discretion to order the holder to present the document to the court only. This private presentation allows the judge(s) to examine the document directly to determine whether the claimed exemption genuinely applies, without prematurely disclosing potentially confidential information to the applying party.
• Procedure: The judge or judges review the document in camera (i.e., in private chambers). The document may be temporarily impounded by the court for this purpose (Rules of Civil Procedure, Art. 141). The contents of the document are not revealed to the applicant or any other party at this stage.
• Benefits: This procedure strikes a balance. It enables the court to make an informed and evidence-based decision on often complex exemption claims while protecting the document holder's legitimate interests in confidentiality until a final determination on producibility is made.
• Challenges and Unresolved Issues:
  • Irrelevance Discovered In Camera: A practical issue arises if the in camera review reveals not only that a claimed exemption applies (or does not apply), but also that the document, even if producible, is clearly irrelevant to the facts the applicant sought to prove. Article 223(6) is formally designed for assessing exemptions, not for determining the relevance or necessity of the document as evidence. However, ordering the production of a document known to be entirely irrelevant would seem to be an inefficient use of judicial and party resources. While case law (Supreme Court, March 10, 2000, Minshū Vol. 54, No. 3, p. 1073) suggests that a court's decision to deny production based solely on a finding of lack of necessity or relevance is not itself subject to immediate appeal, some legal scholars argue that courts should be able to deny production if irrelevance is clearly established during an in camera review conducted for exemption purposes.
  • "Smoking Gun" Evidence Found In Camera but Document is Genuinely Exempt: A more difficult dilemma occurs if the in camera review reveals that a document contains highly decisive evidence (a "smoking gun") but also genuinely falls within a recognized exemption category (e.g., it is a purely internal strategic memo that properly qualifies as a jiko shiyō bunsho). The judge, having seen this crucial information, is nevertheless bound by the law to uphold the exemption and cannot use the information directly or order its disclosure. This can place the judge in an uncomfortable position, knowing the substantive truth but being procedurally constrained from acting upon it. This has led to suggestions in academic circles that in camera reviews, particularly in sensitive cases, might ideally be conducted by a different judge or a specialized judicial officer not presiding over the main trial, to insulate the trial judge from potentially prejudicial but inadmissible information.
  • Holder's Refusal to Submit for In Camera Review: The CCP does not explicitly prescribe the immediate consequence if a document holder refuses to comply with a court's direction to submit a document for in camera review. If the court cannot inspect the document, it may be unable to determine the validity of the claimed exemption. In such a scenario, one might argue that the application for production should be dismissed because the applicant has not overcome the holder's assertion of privilege. However, this could incentivize holders to always refuse in camera submission. Some commentators argue that such a refusal could be met with a procedural sanction, perhaps by the court inferring that the claimed exemption does not apply and proceeding to order full production, or by drawing adverse inferences regarding the document's contents.

Consequences of Disobeying a Document Production Order

If a court issues a document production order and the holder fails to comply, the CCP provides for distinct consequences depending on whether the holder is a third party or a party to the litigation:

• Third-Party Holder (CCP Art. 225(1)): A third party who, without justifiable reason, fails to comply with a production order can be subject to a non-penal administrative fine (karyō) of up to JPY 200,000.
• Party Holder (CCP Art. 224): When a party to the litigation disobeys a production order, the consequences are more directly tied to the merits of the case and can be significantly more severe:
  • Article 224(1) (General Sanction): The court may (discretionary) deem the applicant's assertions concerning the contents (kisai) of the unproduced document to be true. This sanction relates to the applicant's specific allegations about what the document says or shows (its tenor or gist). It does not automatically mean that the ultimate *fact to be proven (yōshō jijitsu) by that document is deemed true. For example, if the applicant alleged the document contained a specific contractual clause, that clause might be deemed to exist. If the court is convinced, however, that the applicant's assertions about the document's contents are clearly baseless or speculative, it will not apply this sanction. The effectiveness of this sanction can be limited if the applicant, not having seen the document, can only make very general or vague assertions about its contents.
  • Article 224(2): A similar consequence applies if a party, for the purpose of obstructing its use by the opposing party, destroys a document they were obliged to produce or otherwise renders it unusable.
  • Article 224(3) (More Potent Sanction – Introduced by 1996 Reforms): This provision addresses situations where the sanctions under paragraphs (1) or (2) might be inadequate. If it is extremely difficult for the applicant (due to not having seen the document) to make specific assertions about the document's contents, AND it is also extremely difficult for the applicant to prove the ultimate fact to be proven (yōshō jijitsu) by using other available evidence, then the court may (again, discretionary) deem the applicant's assertions concerning that fact to be proven to be true.
    This is a significantly more powerful sanction, as it can lead directly to an adverse finding on a substantive issue in the case. It was introduced to counter situations of deliberate proof-hindrance (shōmei bōgai) and to level the evidentiary playing field when a party effectively thwarts access to crucial, uniquely held evidence. Even with this provision, the court retains discretion; if it is otherwise convinced that the fact to be proven is actually untrue despite the non-production, it will not apply this "deeming true" effect. The precise juridical nature of this effect (whether it's a true presumption, a shift in the burden of proof, or a lowering of the standard of proof for the applicant) is subject to some academic debate, but the prevailing view leans towards it being a strong "truth presumption" or a direct "deeming as true" of the yōshō jijitsu.
    In the context of the illustrative case from the reference material (the sublease business dispute), if the bank (B) were ordered to produce an internal directive (document ②), and it refused, and if the plaintiff (A) argued that this directive would prove that the bank was a key and culpable promoter of the risky sublease scheme (this being the yōshō jijitsu), and A had no other reasonable way to prove this critical fact, the court could potentially deem this yōshō jijitsu to be true under Article 224(3). However, if the bank could still demonstrate through other compelling evidence that it was not such a promoter, the court might refrain from applying the sanction. The practical application of Article 224(3) can be challenging, especially if the asserted link between the specific unproduced document and the ultimate yōshō jijitsu is somewhat tenuous or indirect.

Conclusion

The Japanese Bunsho Teishutsu Meirei system provides an essential, albeit not unlimited, mechanism for compelling the disclosure of documentary evidence in civil litigation. The 1996 reforms to the Code of Civil Procedure significantly broadened the general obligation to produce documents, aiming to enhance fairness and truth-finding by addressing information asymmetries. However, this expansion is carefully balanced by statutory exceptions designed to protect legitimate interests in confidentiality, most notably the jiko shiyō bunsho (documents for the holder's exclusive use) exception, the interpretation of which continues to evolve through judicial decisions. Procedural safeguards like in camera review attempt to mediate the tension between the need for disclosure and the protection of sensitive information, though they present their own operational complexities. The sanctions for non-compliance with a production order, particularly those applicable to a party holder under CCP Article 224(3), can be potent, potentially leading to adverse findings on the very facts the unproduced document was sought to establish. A clear understanding of these rules, exceptions, and procedural dynamics is vital for any party involved in Japanese civil litigation where access to documents held by others is a critical component of their case.