How Can We Gather Evidence in Japan Before Filing a Lawsuit? Understanding Pre-Suit Discovery Mechanisms

For any company contemplating litigation, the ability to gather crucial evidence before formally commencing a lawsuit can be invaluable. It allows for a more informed assessment of the case's merits, helps in precisely framing the claims, and can even facilitate early settlement. In the United States, various pre-action discovery tools exist for these purposes. However, companies, including U.S. corporations, operating or facing potential disputes in Japan will find a significantly different and more circumscribed landscape for pre-suit evidence gathering.

This article explores the mechanisms available under Japanese civil procedure for obtaining information and evidence before a lawsuit is officially filed, examining both traditional methods and more recent legislative reforms, their practical utility, and their limitations.

The Challenge of Pre-Suit Evidence in Japan

The Japanese civil litigation system, rooted in the principle of party presentation (Benron-shugi), generally places the responsibility on the parties to collect and submit their own evidence after a suit has been initiated. Unlike the broad pre-trial discovery common in the U.S., Japan has historically offered very limited formal tools for compelling evidence from a potential adversary or third party before a complaint is on file with the court. Parties typically rely on their own informal investigations and any voluntarily provided information.

Recognizing the need for better-prepared litigation and to facilitate the early clarification of disputes, Japan has introduced some measures over time, but these remain distinct from comprehensive discovery.

1. Preservation of Evidence (Shōko Hozen) – The Traditional Safeguard

The primary and long-standing formal mechanism for pre-suit evidence intervention in Japan is the "preservation of evidence" procedure (shōko hozen – 証拠保全) provided under Articles 234 et seq. of the Code of Civil Procedure (CCP).

• Original Purpose: The core objective of shōko hozen is not general discovery but, as its name suggests, to preserve specific evidence when there is a risk that it might be lost, altered, or become difficult to use by the time formal evidence-taking occurs in the course of litigation. Classic examples include a witness who is terminally ill, a physical site that is about to be demolished or altered, or documents that are susceptible to spoliation.
• Requirement of "Necessity of Preservation": To obtain a court order for shōko hozen, the applicant must demonstrate to the court the "necessity of preservation" (shōko hozen no hitsuyōsei). This typically requires showing specific circumstances indicating why the evidence cannot be effectively examined later during the regular course of litigation. For instance, in a case involving medical records, one court required a showing of a concrete risk of alteration before ordering their preservation (Hiroshima District Court Decision, November 21, 1986).
• The "Evidence Disclosure-like" Use and Its Limits: In practice, particularly in complex cases like medical malpractice or product liability where crucial evidence is often solely in the hands of the potential defendant, there have been attempts to utilize the shōko hozen procedure for what is effectively pre-suit disclosure or discovery. By preserving (and thus examining) documents or sites early, plaintiffs could gain access to vital information.
  However, this "disclosure-like" application is constrained by the fundamental requirement of demonstrating a risk of future unavailability or alteration of the evidence. It was not designed as a broad tool for fishing expeditions or general fact-finding.
• Continuing Relevance: Despite the introduction of newer pre-suit mechanisms (discussed below), shōko hozen retains a unique advantage: the evidence preservation examination itself is a formal court procedure. This means that if, during a shōko hozen examination (e.g., taking a deposition of a witness for preservation purposes, or inspecting documents), a party or witness refuses to cooperate without justification, the court can potentially apply procedural sanctions available for refusal to testify or produce evidence in regular litigation. This element of compulsion is largely absent from the newer, more information-focused pre-suit tools.

2. Modernizing Pre-Suit Collection: The "Notice of Institution of Action" Framework (2003 CCP Amendments)

To address the challenges of pre-suit information asymmetry and to promote more focused and efficient litigation from the outset, amendments to the CCP in 2003 introduced a new framework for pre-suit information exchange, centered around a "Notice of Institution of Action" (teiso yokoku tsūchi – 提訴予告通知). These provisions are found in Articles 132-2 to 132-9 of the CCP.

The overarching goal was to enable parties to gather necessary information and clarify issues before committing to full-scale litigation, thereby facilitating better-prepared complaints and answers, and potentially fostering early settlements.

A. The Gateway: Notice of Institution of Action (CCP Article 132-2)

This is the initial step required to unlock the subsequent pre-suit information gathering tools provided by the 2003 amendments.

• What it is: A potential plaintiff (the "notifier") sends a formal written notice to the potential defendant (the "notified person") indicating their intent to file a lawsuit.
• Content Requirements: The notice must contain the "gist of the claim" to be filed and the "main points of the dispute". While less formal than a full complaint, these details must be specific enough to clearly define the anticipated legal dispute and prevent the system from being used for vague or abusive inquiries. Rules of the Supreme Court further mandate that these descriptions be concrete.
• Purpose: It serves to formally alert the potential defendant to the impending litigation and establishes a basis for the notifier to then utilize specific pre-suit inquiry and evidence collection procedures.

Once this notice has been duly given, the following two mechanisms become available:

B. Pre-Suit Inquiry (Teiso-mae Shōkai – 提訴前照会) (CCP Article 132-2 & 132-3)

This mechanism allows for a direct, party-to-party exchange of written questions and answers before a suit is filed.

• Notifier's Inquiry (Art. 132-2): The party who sent the notice of intended action can make written inquiries to the notified person regarding matters that are "clearly necessary for the preparation of allegations or proof" for the lawsuit they intend to file.
• Notified Person's Inquiry (Art. 132-3): Similarly, the recipient of the notice can also make such inquiries back to the notifier.
• Time Limit: These inquiries must generally be made within four months from the date the notice of intended action was given.
• Nature: This procedure is akin to the post-filing "party inquiry" system (CCP Art. 163) but is moved to the pre-suit stage. It aims to clarify facts and contentions early on.

C. Pre-Suit Court Orders for Collection of Evidence (Teiso-mae Shōko Shūshū Shobun – 提訴前証拠収集処分) (CCP Article 132-4)

This tool, unlike the party-to-party inquiry, involves an application to the court for an order to facilitate the collection of specific types of evidence from third parties or concerning certain locations.

• Court Involvement: The party (either the notifier or the notified person) petitions the court to issue an order.
• Conditions for Court Order: The court may issue such an order only if:
  1. The evidence is "clearly necessary for proving [a matter] after the institution of the action".
  2. It is "difficult for the petitioner to collect said evidence by himself/herself".
• Types of Available Orders: The scope of orders under this provision is limited to specific, generally non-compulsory, evidence-gathering methods that are also available post-filing. These include (CCP Art. 132-4, paragraph 1):
  • Commissioning a Holder of a Document to Dispatch it (bunsho sōfu shokutaku – 文書送付嘱託): Requesting a third party (e.g., a government agency, a company) to send relevant documents to the court or the party.
  • Commissioning an Examination/Investigation (chōsa shokutaku – 調査嘱託): Requesting a public office or an organization to conduct an investigation and report on specific matters.
  • Commissioning an Expert Opinion (senmonteki chiken o yūsuru mono ni taisuru iken chinjutsu shokutaku – 専門的知見を有する者に対する意見陳述嘱託): Requesting an expert to provide an opinion on a specialized matter.
  • Order for a Court Execution Officer to Investigate Current Status (shikkōkan ni taisuru genkyō chōsa meirei – 執行官に対する現況調査命令): Ordering a court execution officer to inspect and report on the current condition of, for example, real property or other physical objects.

The Practical Achilles' Heel: Lack of Enforcement

Despite the laudable aims of the 2003 amendments to enhance pre-suit preparation, the practical utility of the "Notice of Institution of Action" framework (specifically, the pre-suit inquiry and pre-suit court orders for evidence collection) has been significantly hampered by a critical omission: the lack of direct sanctions or effective enforcement mechanisms for non-cooperation.

If the recipient of a pre-suit inquiry refuses to answer, or answers evasively, there is no direct penalty prescribed by these provisions. Similarly, if a third party, when faced with a court "order" under Article 132-4 (which is more of a court-facilitated request than a compulsory mandate for these types of evidence gathering), chooses not to cooperate, the CCP does not provide immediate sanctions for this pre-suit non-compliance.

This lack of "teeth" has led to a situation where these newer pre-suit mechanisms are, as observed in legal commentaries, "hardly used" in practice. A party unwilling to voluntarily disclose information before a lawsuit is formally filed has little incentive to comply with these pre-suit requests.

Comparing Japanese Pre-Suit Tools with U.S. Pre-Action Discovery

The Japanese approach to pre-suit evidence gathering stands in stark contrast to the more extensive pre-action discovery mechanisms available in some U.S. jurisdictions.

• Scope and Purpose: U.S. Federal Rule of Civil Procedure 27 (and similar state rules) primarily allows for pre-action depositions to perpetuate testimony that might otherwise be lost. However, some U.S. states (like New York under CPLR § 3102(c)) permit broader pre-action disclosure to aid in bringing an action, identifying potential defendants, or framing a complaint. This can sometimes be used for more investigative purposes than the narrowly defined Japanese tools.
• Compulsion: Where U.S. pre-action discovery is permitted, it is generally backed by the court's coercive powers. Refusal to comply can lead to sanctions. As noted, this element of compulsion is largely missing from Japan's pre-suit inquiry and pre-suit evidence collection order system under Articles 132-2 et seq.
• "Fishing Expeditions": While U.S. courts generally try to curb abusive "fishing expeditions," the threshold for obtaining pre-action discovery can sometimes be lower or aimed at broader fact-finding than the Japanese system, which requires evidence to be "clearly necessary" for an already contemplated and fairly specific lawsuit.

Strategic Considerations for Businesses Navigating Pre-Suit Phases in Japan

Given the limited nature of formal pre-suit discovery in Japan, businesses should consider the following:

1. Emphasize Informal Investigation: Thorough internal investigation and attempts at voluntary information exchange with the potential adversary remain primary methods before filing suit.
2. Evaluate Shōko Hozen Carefully: If there is a demonstrable and genuine risk of specific, crucial evidence being lost or altered, the preservation of evidence procedure (shōko hozen) should be considered. It is a more potent tool than the Art. 132-2 framework due to the potential applicability of procedural sanctions during the examination itself, but its "necessity of preservation" requirement is strict.
3. Manage Expectations for the "Notice of Institution of Action" Framework: While sending a teiso yokoku tsūchi and making inquiries or petitioning for evidence collection orders under Arts. 132-2 et seq. can be attempted, businesses should have realistic expectations about the likelihood of obtaining significant information from an uncooperative counterparty due to the lack of enforcement measures. These tools may be more effective when there is some willingness from the other side to engage in pre-suit clarification.
4. Robust Internal Record-Keeping: As a company might also be the recipient of a teiso yokoku tsūchi and subsequent inquiries, maintaining good internal records is always advisable.
5. Focus on Post-Filing Mechanisms: Businesses must understand that in Japan, comprehensive and potentially compulsory evidence gathering (such as through document production orders under CCP Article 219 et seq., which do have sanctions) typically begins in earnest only after a lawsuit has been formally initiated.

Conclusion

Japan provides a few formal avenues for gathering evidence before a lawsuit is filed, but these are considerably more restricted in scope and coercive power than the extensive pre-trial discovery common in the United States. The traditional method of "preservation of evidence" (shōko hozen) serves the specific purpose of securing evidence at risk of spoliation, though it has been used creatively for limited disclosure purposes. The 2003 reforms introducing the "Notice of Institution of Action" framework aimed to enhance pre-suit preparation by allowing for inquiries and court-facilitated collection of certain evidence. However, the practical utility of these newer mechanisms has been significantly limited by the absence of effective sanctions for non-compliance.

For U.S. companies and other international businesses, this means that pre-suit evidence gathering in Japan will primarily rely on informal methods and a careful assessment of the narrow grounds for invoking shōko hozen. The expectation of broad, U.S.-style pre-action discovery is generally not tenable in the Japanese legal context. Strategic planning must therefore account for the fact that more comprehensive evidence battles typically unfold only once litigation is formally underway.