Pre-Litigation Discovery in Japan: Leveraging "Shokumu Jokyu" and Bar Association Inquiries

For legal professionals accustomed to the extensive pre-trial discovery mechanisms common in jurisdictions like the United States, navigating information gathering in Japan can present a different landscape. While Japan does not feature party-driven discovery tools like depositions or broad interrogatories before a lawsuit is well underway, Japanese attorneys possess unique and powerful statutory means for pre-litigation or out-of-court fact-finding. Two cornerstone methods are the "Shokumu Jokyu" (職務上請求 – Professional Request) for accessing official registers and the "Bengoshikai Shokai" (弁護士会照会 – Bar Association Inquiry), often referred to as an "Article 23 Inquiry." Understanding these tools is essential for effectively building a case or assessing potential litigation in Japan.

I. "Shokumu Jokyu" (職務上請求): Accessing Official Registers

The "Shokumu Jokyu" system grants attorneys a specific statutory right to request and obtain certified copies of certain official Japanese government-maintained registers. This tool is primarily used for verifying fundamental information about individuals and entities.

A. What It Is and Its Purpose:
Attorneys in Japan can utilize Shokumu Jokyu to obtain official documents such as:

• Family Registers (戸籍謄本等 - koseki tōhon tō): These documents are unique to Japan and record vital life events (births, deaths, marriages, parent-child relationships) for Japanese nationals, historically based on a family unit. They are crucial for establishing identity, lineage (e.g., in inheritance cases), and family relationships.
• Resident Certificates (住民票の写し等 - jūminhyō no utsushi tō): These certificates record an individual's current registered address, name, date of birth, and other details. They are essential for confirming an individual's whereabouts for service of process or identifying parties.

This right is available to attorneys when handling entrusted legal cases or performing specific statutory duties, such as acting as a bankruptcy trustee, guardian, or estate administrator.

B. Procedural Mechanics:
The process is strictly regulated:

1. Official Forms: Attorneys must use special, pre-printed request forms issued by the Japan Federation of Bar Associations (JFBA – 日本弁護士連合会, Nihon Bengoshi Rengōkai, or Nichibenren). Different forms exist depending on whether the attorney is acting as a client's agent or in another statutory capacity (e.g., Forms A and B for client agency; Forms C and D for trustee roles).
2. Personal and Secure Management: These forms are purchased by individual attorneys from their local bar association and are subject to strict personal management. They are serialized, and any loss or theft must be promptly reported to the bar association; the JFBA even publishes information on lost forms to prevent misuse. An attorney cannot use forms purchased by another lawyer, even within the same firm, for their own distinct cases.
3. Method of Request:
   • By Mail: The attorney sends the completed official request form, the applicable fee (usually paid via a fixed-amount postal money order – 定額小為替証書, teigaku kogawase shōsho), and a self-addressed stamped envelope to the relevant municipal office that holds the register. It's advisable to check the municipality's website for the correct department and current fee.
   • In Person: An attorney can also make the request in person at the municipal office, paying the fee in cash. This requires presenting official proof of their status as an attorney (either their attorney badge or a JFBA-issued identification card). It is also possible to send a law firm staff member as a messenger, but they would typically need a bar association-issued employee ID card or a specific power of attorney from the lawyer accompanied by their own personal identification.

C. Key Limitations and Ethical Considerations:
The use of Shokumu Jokyu is carefully circumscribed:

• Legally Defined Purpose: Requests are permissible only for purposes explicitly allowed under the Family Register Act (戸籍法 - Kosekihō) and the Basic Resident Registration Act (住民基本台帳法 - Jūmin Kihon Daichōhō), and must be directly related to the attorney's professional duties in an entrusted case or their statutory role.
• Specific Statement of Purpose (利用目的 - riyō mokuteki): The request form demands a concrete and truthful statement of why the information is needed. For example, if an attorney needs a debtor's current address to file a loan recovery lawsuit, the purpose might be stated as: "For preparation of litigation representation in a loan recovery claim case." Vague justifications are unacceptable.
• Consequences of Misuse: Providing false information regarding the purpose of use or otherwise misusing the Shokumu Jokyu system can lead to severe disciplinary sanctions for the attorney by their bar association. There have been numerous disciplinary cases arising from such misuse. Attorneys have an ethical obligation to refuse client requests that would involve an improper use of this system.
• Privacy and Disclosure to Clients: Information obtained via Shokumu Jokyu contains sensitive personal data. Attorneys must handle this information with extreme care to protect the privacy of the individuals concerned and any third parties mentioned in the registers. As a general rule, directly handing over the original certified copies to the client should be avoided. If disclosure of specific information is necessary for the case, it should be limited to what is strictly required, and irrelevant personal data (especially concerning third parties) should be redacted. Clients should also be advised on the sensitive nature of the information and the need for careful handling.
• "Principal Notification System" (Honnin Tsūchi Seido - 本人通知制度): An increasing number of Japanese municipalities have implemented a "principal notification system." Under this system, individuals who have pre-registered can be notified by the municipality if a third party (including an attorney using Shokumu Jokyu) requests and obtains their family register or resident certificate. This is a critical consideration if the attorney needs to gather information discreetly, for instance, when preparing for pre-emptive civil preservation measures (民事保全手続 - minji hozen tetsuzuki like an asset freeze), as the request itself might inadvertently alert the opposing party. While the JFBA may provide lists of municipalities with such systems, direct confirmation with the specific municipality is the most reliable approach.

II. "Bengoshikai Shokai" (弁護士会照会): The Article 23 Bar Association Inquiry

A more versatile and often more powerful tool for pre-litigation (and indeed, during-litigation) information gathering is the "Bengoshikai Shokai," commonly known as an "Article 23 Inquiry" (23条照会 - nijūsan-jō shōkai), based on Article 23-2 of the Attorney Act (弁護士法 - Bengoshihō).

A. Overview and Legal Basis:
This system allows an attorney, in connection with an "entrusted case" (受任している事件 - junin shiteiru jiken), to apply to their local bar association. If the bar association deems the application appropriate, it will issue an inquiry in its own name to relevant public offices or public or private organizations (公務所又は公私の団体に照会して必要な事項の報告を求める - kōmusho mata wa kōshi no dantai ni shōkai shite hitsuyō na jikō no hōkoku o motomeru) to request reports on necessary matters. The bar association has the discretion to refuse an application if it considers it inappropriate.

The Supreme Court of Japan has affirmed that the purpose of this system is to facilitate attorneys' investigation of facts and collection of evidence necessary for the proper handling and resolution of their cases (see judgment of October 18, 2016, Minshū Vol. 70, No. 7, p. 1725). Its broad scope, encompassing both public and private entities, makes it a valuable investigative instrument. Usage is extensive, with over 220,000 such inquiries made in 2019, a significant number targeting financial institutions.

B. The Process and Key Considerations:

1. Application to the Bar Association: The attorney must submit a formal application to their registered bar association, using prescribed forms and adhering to the association's specific rules and guidelines. Many larger bar associations publish detailed manuals on Article 23 Inquiries, often including examples of how to phrase requests for different types of information from various entities; these can be invaluable resources.
2. "Entrusted Case" Limitation: The inquiry must genuinely pertain to a case the attorney is formally handling. It cannot be used for personal reasons, general research unrelated to a specific client's needs, or for matters where the attorney is acting in a capacity other than as legal counsel in a dispute or specific legal matter (e.g., roles like a bankruptcy trustee or civil rehabilitation supervisor are generally included, but membership on an administrative review committee might not be).
3. Stating the "Reason for Inquiry" (照会を求める理由 - Shōkai o Motomeru Riyū): This is a critical part of the application. The attorney must clearly and specifically articulate:
   • The nature of the entrusted case.
   • The specific information or documents sought.
   • Why this information is necessary for the investigation or processing of the case.
   • Why it is necessary to obtain this information from the specific target entity.
     A vague justification, such as "needed for litigation purposes," will be insufficient. There's a balance to be struck: providing enough detail for the bar association's internal review committee to understand the necessity and legitimacy of the request, without unnecessarily disclosing excessive client confidential information to the bar or, subsequently, to the target entity. Some attorneys adopt a strategy of providing a more detailed explanation for the bar association's internal use and a more concise, carefully worded reason for the actual inquiry sent to the target.
   • Professional Tone: It is crucial to maintain a professional and neutral tone in the inquiry request. The inquiry is issued by the bar association, not the individual attorney. Avoid overly assertive, accusatory, or disparaging language about opposing parties or the situation. Such language is unprofessional, serves no legitimate purpose in the inquiry itself, and could create unnecessary antagonism if the content becomes known to others.

C. The Recipient's Duty to Respond:
The legal framework surrounding the recipient's obligation to respond is a key aspect of the Article 23 Inquiry's strength.

• General Duty to Report: The Supreme Court (in its October 18, 2016 decision) has held that entities receiving an Article 23 Inquiry have a general duty to report on the inquired matters, unless there is a "legitimate reason" (正当な理由 - seitō na riyū) for refusal.
• "Legitimate Reason" for Refusal: The existence of a "legitimate reason" is determined on a case-by-case basis, by balancing the necessity and appropriateness of the inquiry against the legal interest that would be protected by refusing to disclose the information. Simply citing general privacy concerns, for example, may not automatically constitute a legitimate reason.
• Interaction with Personal Information Protection Act (PIPA): Japan's PIPA generally requires consent for the disclosure of personal information to third parties. However, Article 23 Inquiries are typically considered to fall under the exception for disclosures "based on laws and regulations" (法令に基づく場合 - hōrei ni motozuku baai), as provided in PIPA (e.g., Article 16, Paragraph 3, Item 1 and Article 23, Paragraph 1, Item 1 of the older versions, now Articles 18(1) and 27(1)(i) of the amended PIPA, respectively). Therefore, PIPA itself usually does not provide a blanket justification for refusing an Article 23 Inquiry. Attorneys may sometimes need to explain this to inquired parties who are hesitant to disclose.
• Practical Limitations: Despite this legal framework, in practice, recipients (especially private companies) may still refuse to provide information, often citing general duties of confidentiality, protection of personal information, trade secrets, or customer privacy. Understanding this practical reality is important when deciding to use this tool. There are no direct penalties for refusing an Article 23 Inquiry, though the potential for indirect legal consequences in very specific circumstances cannot be entirely ruled out.

D. Tips for Enhancing Response Rates:
Given that responses are not always guaranteed, certain strategies can improve the likelihood of obtaining useful information:

• Clarity and Simplicity: Draft the inquiry, particularly the questions and the reasons, in clear, simple, and unambiguous language. Remember that the recipient is often not a legal expert and is a third party to the underlying dispute. This is especially important when the underlying case is complex.
• Prior Communication (with caution): Where appropriate and feasible, informally contacting the target entity before the formal inquiry is sent can be highly beneficial. This allows the attorney to explain the Article 23 Inquiry system, the reasons for the request, and the specific information sought. Such discussions can help the recipient understand the legitimacy of the request and may lead to them suggesting more effective ways to phrase questions, identifying relevant personnel, or even pointing out other available information. However, extreme caution is needed if the target entity has any relationship with the opposing party in the attorney's case, as such prior contact could inadvertently alert them to the investigation.
• Flexibility in Response Format: Indicate willingness to accept information in different formats. For example, if requesting detailed transactional data, stating that "copies of relevant account statements for the specified period would be acceptable in lieu of a narrative response" can make it easier for the recipient to comply.

III. Other Preliminary Investigative Avenues

While Shokumu Jokyu and Article 23 Inquiries are potent statutory tools, attorneys in Japan also employ other, more conventional methods for preliminary fact-gathering:

• Publicly Available Information: This includes thorough research of literature, legal databases, internet searches for news articles or company information, and accessing public registries (e.g., corporate registration, real estate registration).
• On-Site Investigations (現地調査 - genchi chōsa): Depending on the nature of the case, visiting relevant locations—such as an accident scene, a disputed property, or a business premises (to the extent permissible)—can provide valuable insights and evidence (e.g., photographs, observations).

IV. Contrasting with U.S. Discovery

For practitioners familiar with the U.S. legal system, the Japanese approach to pre-litigation information gathering presents some notable contrasts:

• Scope and Initiative: U.S. discovery is generally broader and more party-driven from an early stage, with tools like interrogatories, requests for production, and depositions available often before significant court involvement. Japanese tools like Article 23 Inquiries, while powerful, are channeled through the bar association and often require more specific justification.
• Depositions: The concept of extensive pre-trial oral depositions of parties and non-parties, a staple of U.S. discovery, does not have a direct equivalent as a standard pre-litigation tool in Japan. Witness examination typically occurs much later in formal court proceedings.
• Judicial Involvement: While the Article 23 Inquiry involves the bar association (a quasi-public entity), direct judicial oversight of these pre-litigation steps is less pronounced than in court-managed discovery schedules in the U.S.

V. Conclusion

While Japan's civil procedure does not mirror the extensive pre-trial discovery common in some other jurisdictions, Japanese attorneys are equipped with distinct and effective statutory mechanisms for gathering crucial information before or in the early stages of litigation. The "Shokumu Jokyu" provides targeted access to official registers, while the "Bengoshikai Shokai" (Article 23 Inquiry) offers a broader avenue for seeking information from a wide array of public and private entities. Successful utilization of these tools requires a thorough understanding of their procedural intricacies, scope, limitations, and the ethical considerations involved, particularly concerning privacy and the specific purpose of the request. For international parties involved in or contemplating litigation in Japan, appreciating how their Japanese counsel can leverage these unique information-gathering methods is a key aspect of case preparation and strategy.