Discovery in Japan vs. the US: What Are the Key Differences US Litigants Must Understand?

The ability to obtain information and evidence from an opposing party is a cornerstone of modern civil litigation. However, the philosophy, mechanisms, scope, and practical realities of this process—often broadly termed "discovery" in the United States—differ dramatically between Japan and the U.S. For US litigants, or any party accustomed to the extensive pre-trial discovery common in American courts, understanding these fundamental distinctions is absolutely critical when contemplating or engaging in litigation in Japan, or when a Japanese entity faces litigation in the US.

This article aims to illuminate the key differences between Japanese evidence gathering procedures and the US discovery system, providing insights for navigating these contrasting legal landscapes.

I. The U.S. Discovery System: A Brief Overview for Context

To appreciate the differences, it's helpful to briefly outline the hallmarks of the U.S. discovery system, primarily governed by the Federal Rules of Civil Procedure (FRCP) Rules 26-37 (and analogous state court rules).

A. Philosophy: Broad Disclosure and Truth-Seeking

The US discovery system is built on the philosophy of broad, liberal disclosure of information before trial. The stated goals are to:

• Allow parties to obtain nearly all relevant non-privileged information from each other and from third parties.
• Prevent "trial by ambush" by ensuring all sides are aware of the evidence.
• Clarify and narrow the disputed issues.
• Facilitate informed settlement discussions.
• Preserve evidence.

B. Key Tools

US discovery employs a range of powerful, party-driven tools:

1. Depositions (Oral and Written): Attorneys can question parties, their employees, and non-party witnesses under oath outside of court, with a court reporter transcribing the testimony. This is a primary tool for exploring facts and testing witness credibility.
2. Interrogatories: Written questions served by one party on another party, which must be answered in writing under oath.
3. Requests for Production of Documents and Things (RFPs): Parties can request opponents to produce a broad range of documents, electronically stored information (ESI), and tangible things for inspection and copying. This is often the most expensive and voluminous part of discovery.
4. Requests for Admission (RFAs): One party can ask another to admit the truth of certain facts or the authenticity of documents, thereby narrowing what needs to be proven at trial.
5. Physical and Mental Examinations: If a party's physical or mental condition is in controversy, the court may order an examination.

C. Scope: Broad Relevance and Proportionality

Under FRCP 26(b)(1), parties may obtain discovery regarding "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." This "relevance" standard is very broad, and information need not be admissible at trial to be discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence. "Proportionality" considers factors like the importance of the issues, the amount in controversy, and the parties' resources.

D. Party-Driven Nature and Cost/Time Implications

US discovery is largely party-driven, with court intervention typically occurring only when disputes arise (e.g., motions to compel, motions for protective orders). This process can be extremely expensive, particularly due to document review (especially e-discovery) and depositions, and can significantly prolong the pre-trial phase of litigation.

II. Evidence Gathering in Japan: A More Focused and Court-Involved Approach

Japan does not have a comprehensive, party-driven pre-trial "discovery" phase analogous to the U.S. system. Instead, evidence gathering (証拠収集 - shōko shūshū) is more integrated into the ongoing court proceedings (a series of hearings), is generally more focused and targeted, and often involves a greater degree of judicial oversight when compulsion is needed.

A. Key Mechanisms for Obtaining Evidence in Japan

While lacking a broad "discovery" umbrella, Japanese civil procedure (governed by the Code of Civil Procedure - CCP, 民事訴訟法 Minji Soshō Hō) provides several distinct mechanisms:

1. Document Production Orders (Bunsho Teishutsu Meirei - 文書提出命令) (CCP Art. 219 et seq.):
   • A party can petition the court to order another party (or a third party) to produce specific documents.
   • Specificity Required: The requesting party must identify the document with reasonable particularity, state what facts they intend to prove with it, and establish that the holder has an obligation to produce it. "Fishing expeditions" are not permitted.
   • Statutory Exemptions: The holder can refuse production if the document falls under specific exemptions, such as documents prepared solely for the holder's internal use, documents concerning an attorney's professional secrets, or documents containing valuable technical or professional secrets of the holder (CCP Art. 220).
   • The court, after hearing arguments, decides whether to issue the order. This is far more targeted than broad US document requests.
2. Witness Examination (Shōnin Jinmon - 証人尋問) and Party Examination (Tōjisha Jinmon - 当事者尋問):
   • These examinations occur in court during scheduled oral argument hearings (口頭弁論期日 - kōtō benron kijitsu), conducted before judges.
   • There is no direct equivalent of U.S.-style pre-trial depositions where attorneys can extensively question opposing parties or non-party witnesses under oath outside of court, with only a court reporter present.
   • In Japanese practice, witness/party examination in court is often preceded by the submission of detailed written statements (chinjutsu-sho - 陳述書) prepared by the witness/party with their counsel, outlining their testimony. The in-court examination then often focuses on confirming these statements and cross-examining key points.
3. Expert Opinions (Kantei - 鑑定): Parties can request the court to appoint an expert, or they can submit opinions from their own retained experts (as documentary evidence or through testimony).
4. Inspections (Kenshō - 検証): The court can order an inspection of a place or thing if necessary.
5. Party Inquiries (Tōjisha Shōkai - 当事者照会) (CCP Art. 163):
   • After initial pleadings are filed, a party can make written inquiries to the opposing party regarding specific points necessary for clarifying their allegations or evidence.
   • Responses are typically in writing and are not made under oath. They are less comprehensive and less coercive than U.S. interrogatories or depositions. Failure to respond adequately might, in some circumstances, lead to adverse inferences by the court but does not carry the same direct sanctions as failure to comply with US discovery.
6. Pre-Suit Evidence Gathering (提訴前の証拠収集):
   • Options for gathering evidence before filing a lawsuit are very limited in Japan. They include:
     • Preservation of Evidence (shōko hozen - 証拠保全) (CCP Art. 234 et seq.): A court procedure to examine evidence that might otherwise be lost or altered before trial, requiring a showing of necessity.
     • Some pre-suit inquiry systems, including a newer mechanism (introduced by 2022 CCP amendments) allowing a party who has given advance notice of litigation to petition a court to order the prospective defendant to disclose certain expert knowledge relevant to specialized disputes.
7. Specialized Regimes (e.g., Sashō in IP Litigation):
   • In specific fields like patent infringement, there is an "inspection" system (sashō seido - 査証制度) under the Patent Act, where a court-appointed neutral expert can inspect an alleged infringer's premises. This is a targeted, court-supervised tool and not a general discovery device.

B. Role of the Court

Japanese judges generally play a more active role in managing the evidence presentation process compared to their U.S. counterparts in the discovery phase. They rule on document production motions, can ask clarifying questions of parties and witnesses (shakumeiken - 釈明権), and guide the flow of hearings where evidence is introduced.

III. Key Differences Summarized: Japan vs. U.S.

IV. Implications for US Litigants in Japanese Courts

US companies and lawyers accustomed to the expansive discovery tools available in American litigation must significantly adjust their expectations and strategies when litigating in Japan:

1. No "Fishing Expeditions": You cannot expect to use broad discovery requests to search for unknown evidence or to explore all possible avenues. Evidence gathering must be targeted.
2. Emphasis on Own Investigation: Since you cannot rely on extracting vast amounts of information from your opponent through discovery, your own pre-filing and ongoing internal investigation and evidence gathering become even more critical. You must build your case primarily with what you can find.
3. Strategic Use of Available Japanese Tools: Learn to maximize the utility of the available Japanese mechanisms:
   • Document Production Orders: Be very specific in identifying the documents sought and be prepared to argue their relevance and why the opponent has an obligation to produce them. Understand the statutory exemptions the opponent might raise (e.g., trade secrets, documents for internal use).
   • Witness/Party Examination: Since pre-trial depositions are not an option for hostile witnesses, in-court examination is key. Effective use of detailed written witness statements (chinjutsu-sho) in advance, followed by focused cross-examination, is crucial.
   • Party Inquiries: Use tōjisha shōkai strategically to obtain specific clarifications, though don't expect them to yield as much as US interrogatories.
4. Burden of Proof: Be acutely aware that you will likely need to meet your burden of proof primarily through evidence you can proactively obtain or specifically compel through court order, rather than through information "discovered" from the other side.
5. Importance of Local Counsel: Engaging experienced Japanese litigation counsel who understand how to effectively use these tools and navigate the court process is indispensable.

V. Implications for Japanese Entities Facing US Litigation

Conversely, Japanese companies and their legal teams often face a steep learning curve and significant challenges when they become defendants in U.S. litigation, primarily due to the discovery process:

1. The "Discovery Shock": The sheer breadth, intrusiveness, cost, and time commitment of U.S. discovery can be overwhelming and culturally alien to Japanese companies.
2. Duty to Preserve Evidence: U.S. law imposes a strict duty to preserve all potentially relevant documents and ESI (including implementing "litigation holds") from the moment litigation is reasonably anticipated. Failure can lead to severe sanctions for spoliation of evidence. This concept is less formally codified with similar pre-litigation impact in Japan.
3. E-Discovery Burdens: Managing and producing vast quantities of electronic data, including emails, internal databases, and other ESI, presents enormous logistical, technical, and financial challenges. Cross-border data transfer and privacy issues (e.g., GDPR, Japanese APPI) add further complexity.
4. Depositions: Preparing Japanese executives and employees for US-style depositions—which can be lengthy, adversarial, and conducted by opposing counsel under oath—is a significant undertaking requiring specialized preparation.
5. Cost and Disruption: The cost of U.S. discovery, particularly e-discovery and attorney review time, can be astronomical and highly disruptive to business operations.
6. Need for Experienced U.S. Discovery Counsel: Partnering with U.S. counsel experienced in managing discovery (and in working with Japanese corporate culture) is absolutely essential for an effective defense.

VI. Conclusion: Navigating Two Different Worlds

The approaches to evidence gathering and pre-trial information exchange in Japan and the United States reflect fundamentally different legal philosophies, procedural traditions, and balances between party autonomy and judicial control.

• The U.S. discovery system is characterized by its breadth, its party-driven nature, and its extensive pre-trial phase, all aimed at ensuring comprehensive information exchange before trial.
• Japanese evidence gathering, in contrast, is more focused, features greater judicial oversight for compelled disclosures, and is more closely integrated into the series of hearings that constitute the main trial process. There is no direct equivalent to the broad, pre-trial, party-controlled discovery phase found in the U.S.

For US litigants entering Japanese courts, this means adapting to a system where they must be more self-reliant in building their evidentiary case and must use targeted, court-mediated tools to obtain specific evidence from opponents. Conversely, for Japanese litigants facing U.S. lawsuits, it means preparing for an often intrusive, demanding, and costly discovery process that requires meticulous preservation and production of information. Understanding these stark differences is the first and most critical step for any party involved in trans-Pacific litigation to manage expectations, develop appropriate and effective legal strategies, and navigate the complexities of an unfamiliar procedural environment.