Court-Assisted Evidence Gathering in Japan: Utilizing Commission, Order, and Preservation Procedures

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Once litigation is underway in Japan, the Civil Code of Procedure (CCP) (民事訴訟法 - Minji Soshōhō) provides litigants with several formal mechanisms to obtain evidence with the court's assistance. These tools become particularly relevant when information or documents are held by opposing parties who are unwilling to produce them voluntarily, or by third parties who are not directly involved in the litigation but possess crucial evidence. Unlike the broad, party-driven discovery common in jurisdictions like the United States, these Japanese procedures typically involve a more direct role for the court in compelling or facilitating the production of evidence.

I. Commission to Send Documents (文書送付嘱託 - Bunsho Sōfu Shokutaku)

One of the frequently utilized methods for obtaining documents held by third parties is the "Commission to Send Documents," provided for in Article 226 of the CCP.

A. Purpose and Mechanism:
This procedure allows a party to petition the court to issue a formal request (a commission) to a person or entity holding a specific document, asking them to send that document directly to the court. It is a way of formally offering documentary evidence that is not in the petitioning party's possession.

B. Application Process and Court Discretion:
To initiate this, the petitioning party files an application with the court, which must specify:

  1. A clear description of the document(s) sought.
  2. The purport or a summary of the document's contents.
  3. The identity and address of the current holder of the document.
  4. The facts that the party intends to prove using the document.

The court then exercises its discretion in deciding whether to issue the commission. Approval is not automatic; the court will assess the necessity and relevance of the requested document to the key issues in dispute. The more clearly the application demonstrates this link, the higher the likelihood of the commission being granted. A court's decision to reject an application for a commission to send documents is not independently appealable. If the court approves the commission, the petitioning party will typically be required to prepay any costs associated with the document holder sending the materials to the court.

C. Limitations and Practical Aspects:
A key limitation is that this procedure cannot be used if the party is already entitled by law to demand the delivery or a copy of the document directly from the holder (e.g., certain public documents that citizens have a right to obtain).

While there are no direct penalties imposed on a document holder who fails to comply with a court's commission to send documents, the procedure is often effective in practice. Many entities, particularly official bodies or larger organizations, are more inclined to cooperate with a formal request emanating from a court than they might be with an informal request from an attorney or even a Bar Association Inquiry.

Once the document holder sends the requested material (which should be the original, a certified copy (正本 - seihon), or an authenticated copy (認証のある謄本 - ninshō no aru tōhon), pursuant to Article 143(1) of the Regulations for Civil Procedure) to the court, the process is not yet complete. The petitioning party must then typically inspect the received documents at the court, make copies, and formally submit those copies as their own documentary evidence (shoshō) in the case.

II. Commission to Investigate (調査嘱託 - Chōsa Shokutaku)

Another important court-assisted tool is the "Commission to Investigate," governed by Article 186 of the CCP. This procedure allows the court to entrust an investigation of specific matters to certain types of organizations.

A. Purpose and Mechanism:
The court can commission public offices, schools, chambers of commerce, stock exchanges, or other similar organizations to conduct necessary investigations and report their findings. This is typically used when specific, objective factual information can be readily ascertained from the records or specialized knowledge of such an entity. While the court can initiate a commission to investigate on its own motion, it is more commonly done upon the application of a party.

B. Application Process and Court Practice:
A party applying for a commission to investigate must specify:

  1. The facts they intend to prove through the investigation.
  2. The specific entity to be commissioned with the investigation.
  3. The precise matters or questions to be investigated.

The court decides whether to grant the commission. Generally, if the application appears reasonable and the opposing party, after being given an opportunity to state their views, does not raise substantial objections, the commission is often granted. As with the commission to send documents, the applicant will usually need to prepay the costs associated with the investigation.

C. Scope and Compliance:
The scope of a commission to investigate is generally limited to the ascertainment of objective data or facts, rather than opinions that would typically require the nuance of witness testimony and cross-examination.

Although there are no direct sanctions for an entity that fails to comply with a commission to investigate, there is a general understanding, supported by case law (e.g., Tokyo High Court, October 24, 2012, Hanrei Jihō No. 2168, p. 65), that entities have a public law obligation to cooperate with such court requests. This can make it a more effective route than, for example, a Bar Association Inquiry if an entity has previously been uncooperative with the latter but might be more responsive to a formal court commission.

The report or response provided by the commissioned entity can be introduced into the evidentiary record. According to a Supreme Court judgment (March 26, 1970, Minshū Vol. 24, No. 3, p. 165), it is sufficient for the court to present the report during an oral argument session and give the parties an opportunity to state their opinions on it. Alternatively, the party who requested the commission can formally submit the resulting report as their own documentary evidence.

III. Distinguishing Between Commission to Send Documents and Commission to Investigate

While both procedures involve the court requesting assistance from a third party, their applications differ.

  • Commission to Send Documents (Bunsho Sōfu Shokutaku) is primarily used when a party believes that a specific, identifiable document relevant to the case exists and is in the possession of a third party. The request is for the submission of that document.
  • Commission to Investigate (Chōsa Shokutaku) is more appropriate when a party seeks specific factual answers or data that can be derived from an organization's records or expertise, rather than an entire pre-existing document. It can also be used if the existence of a specific document is uncertain, allowing the commission to inquire about certain facts and, if relevant documents are found to exist during that investigation, to then request their submission.

Judges are mindful of this distinction. A commission to investigate should not be used to elicit responses that would effectively substitute for witness testimony requiring cross-examination. If the information sought is more akin to testimony or complex opinion, direct witness examination or a formal expert opinion (see below) would be the proper procedures. While a "written witness examination" (書面尋問 - shomen jinmon, CCP Art. 205) is theoretically possible if the court deems it appropriate, judges may be hesitant due to the practical difficulties in preparing effective cross-examination questions in writing and the risk of receiving ambiguous or incomplete answers.

IV. Order to Produce Documents (文書提出命令 - Bunsho Teishutsu Meirei)

A more coercive mechanism for obtaining documents is the "Order to Produce Documents," as stipulated in Article 223 of the CCP.

A. Purpose and Mechanism:
This procedure involves the court, upon a party's application, issuing a formal order compelling a document holder—who can be the opposing party or a third party—to submit specified documents to the court.

B. When Used:
An order to produce documents is generally considered when:

  • The document holder is the opposing party and is unwilling to produce the document voluntarily.
  • The document holder is a third party, and attempts at voluntary production or a commission to send documents have failed or are deemed unlikely to succeed.
    In practice, when a party applies for such an order against the opposing party, the court will often first encourage the opposing party to submit the document voluntarily before formally issuing an order.

C. Consequences of Non-Compliance (CCP Article 224):
The CCP provides for specific adverse inferences if a party ordered to produce a document fails to comply without legitimate reason:

  • Against an Opposing Party: If the opposing party disobeys the order, the court may deem the applicant's assertions regarding the description and purport (contents, nature, authenticity) of the document to be true (CCP Art. 224(1)).
  • Spoliation: The same consequence may apply if the opposing party, having a duty to produce the document, destroyed it or otherwise rendered it unusable for the purpose of obstructing its use by the applicant (CCP Art. 224(2)).
  • Presuming Facts to be Proven: Critically, these provisions primarily allow the court to accept the applicant's claims about the document itself (its existence, content, authenticity), not necessarily the ultimate facts that the applicant intended to prove through that document. However, under Article 224(3), if (i) the defaulting party makes specific assertions concerning the document's contents (or lack thereof), and (ii) it is extremely difficult for the applicant to prove the ultimate facts by other means of evidence, the court may then deem the applicant's assertions concerning those ultimate facts to be true. This is a higher threshold.

V. Evidence Preservation (証拠保全 - Shōko Hozen)

"Evidence Preservation," provided for under Article 234 of the CCP, is a preemptive measure to secure evidence that might otherwise be lost or altered before it can be formally examined in the main proceedings.

A. Purpose and Grounds:
The court can, upon a party's application, order and conduct an evidence examination (such as document inspection, questioning of individuals, or a site inspection) in advance if there are circumstances suggesting that using the evidence would otherwise become difficult. The applicant must make a prima facie showing (疎明 - somei) of such circumstances. Common grounds include:

  • A risk that the opposing party might alter, conceal, or destroy relevant documents or objects.
  • A key witness being critically ill or about to become unavailable.
  • The physical condition of a place or object relevant to the case is about to change.

B. Common Applications:
This procedure is frequently utilized in medical malpractice litigation to secure prompt access to medical records (カルテ - karute) due to concerns about potential post-incident alteration by the medical institution. However, its utility is not confined to such cases; it can be applied in any situation where critical evidence is vulnerable. Even if an attorney does not frequently initiate such proceedings, understanding the procedure is important for advising clients who might become subject to an evidence preservation order.

VI. Other Court-Assisted Methods

The CCP also provides for other, more specialized court-assisted evidence gathering tools:

  • Commission for Expert Opinion (鑑定嘱託 - Kantei Shokutaku - CCP Art. 218): The court may commission a public office, a corporation with suitable facilities, or an individual expert to provide a formal expert opinion on matters requiring specialized knowledge (e.g., DNA analysis for paternity disputes, technical analysis of product defects, property valuation).
  • Commission to Send Objects for Inspection (検証物送付嘱託 - Kenshōbutsu Sōfu Shokutaku - CCP Arts. 232, 226): Similar to the commission to send documents, but for physical objects that need to be inspected by the court.
  • Order to Present Objects for Inspection (検証物提示命令 - Kenshōbutsu Teiji Meirei - CCP Art. 232): An order compelling a holder to present a physical object for court inspection.

VII. Strategic Considerations and Pre-Lawsuit Options

A. Interplay with Bar Association Inquiries:
If a Bar Association Inquiry (Article 23 Inquiry) has been refused by an entity, or if the response was inadequate, the court-assisted mechanisms discussed above (particularly the commission to send documents or commission to investigate) may offer a more compelling route, as entities are generally more hesitant to disregard a formal request or order from a court.

B. Pre-Lawsuit Evidence Gathering (CCP Article 132-4):
It's noteworthy that some of these court-assisted evidence gathering procedures, under specific conditions outlined in Article 132-4 of the CCP (Evidence Collection Prior to Filing of Action), can be utilized even before a lawsuit is formally filed. This can be a valuable, though perhaps less commonly known, option for securing critical evidence at a very early stage, particularly if there's a high risk of it disappearing.

C. Cost Implications:
Parties utilizing these court-assisted procedures should be aware of the associated costs. The court will typically require the petitioning party to prepay fees for the court's process and potentially any expenses incurred by the third party in complying with the commission or order (e.g., copying and postage costs for documents, fees for conducting an investigation). These can be significant if a large volume of information is sought.

VIII. Conclusion

The Japanese Code of Civil Procedure offers a distinct set of tools for court-assisted evidence gathering. While not mirroring the extensive party-driven discovery of some other legal systems, mechanisms such as the Commission to Send Documents, Commission to Investigate, Order to Produce Documents, and Evidence Preservation provide litigants with crucial avenues to access information necessary for their case, especially from uncooperative opponents or third parties. Effective use of these procedures requires a clear understanding of their specific requirements, the court's discretionary role, and their strategic application within the broader context of Japanese civil litigation.