Case law Developments in PIL

The Swedish Supreme Court on the Taking of Digital Evidence in International Cases

The Swedish Supreme Court held in a decision of 8 April 2022 (case Ö 4651-21) that a defendant domiciled in Denmark can be ordered to produce documents to a Swedish court without assistance or allowance from Danish authorities.

The issue arose in the framework of proceedings for maintenance brought by a daughter in Sweden against her father, based in Denmark. The former asked the court to order that the latter produce such Danish annual tax assessment notices he could access through the Danish tax authority’s web page. When the father refused to produce the notices in question, the district court declined the subpoena on producing documents and ruled on the matter. The court of appeal changed the district court’s decision and held that the father should produce the documents. Against this background, the Swedish Supreme Court granted a review permit for the issue regarding the production of digital documents when the defendant is domiciled abroad.

The Supreme Court explained that, on the basis of sovereignty, the starting point is that a court can only take evidence abroad if the foreign state has approved for it. Hence, a Swedish court is limited to the taking of evidence that can be made in Sweden. In international situations, a Swedish court can ask foreign authorities for assistance in the taking of evidence abroad. Sweden is bound both by the 1970 Hague Evidence Convention and by the 1974 Nordic Evidence Convention. In addition to these conventions, there is also Regulation 1206/2001 on cooperation between the courts of the Member States (except Denmark) in the taking of evidence in civil or commercial matter, which will be replaced by Regulation 2020/1783. According to the Swedish Supreme Court, it is not necessary to apply the international conventions or the EU regulation when the production of documents concern documents available online.

Pursuant to Swedish procedural law, a party possessing a document that supposedly may have importance as evidence must produce the document to the court. The obligation to produce a document is, according to the preparatory works, intended to be of the same extent as the obligation to testify orally before the court. In assessing whether the Danish father could be considered to have possession of the tax assessment notices, the Supreme Court stated that possession for the taking of evidence should be interpreted broadly. In addition to referring to Swedish literature on the procedural code, the Swedish Supreme Court also referred to the requirement for possession as stated in Article 3 of the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (2020) for a broad interpretation of the possession requirement for taking of evidence. The Swedish Supreme Court held that the possession requirement is met for digital documents stored on the internet when a person has an unconditional access to the document.

Even if the order to produce documents available online in fact is extraterritorial, the extraterritorial effect is not judicial, the Supreme Court continued. Therefore, it is irrelevant where the digital information is stored. If the person ordered to produce documents is domiciled abroad and the document is stored abroad, the legal possibility for the Swedish court is limited. Still, in such situations a Swedish court may order someone to produce documents under penalty of a fine just like in domestic situations unless the order forces the obliged person to act contrary to the laws of another country.

4 comments on “The Swedish Supreme Court on the Taking of Digital Evidence in International Cases

  1. Andrey Zuev

    Very interesting case. Does it mean that the Swedish rule to calculate maintenance is based on the parent’s income ( per cent?) and the respondent was hiding his income to minimize the due? What did the court decide exactly?
    About a year ago there was a decision of the Netherlands’ court to enforce a Russian court’ s decision for maintenance calculated in percent although the Netherlands’ legal system doesn’t normally use such calculation..

  2. Erik Sinander

    Yes, the Swedish rule to calculate maintenance is based on the needs of the child as well as on the capacities of the parents. The question for the Swedish Supreme Court was purely procedural and concerned only whether the father could be ordered to produce documents that were available online. On this issue, the Supreme Court decided that the father was obliged to produce the documents. The substantive issue of the case was left to be decided by the district court.

    From the case, it is not really possible to tell why the father did not want to produce documents. It might be the case, as you indicated, that he wanted to hide his incomes to minimize the maintenance.

  3. I wonder if such a conduct of the father might be considered as a negligeance or even as a contemp of the court which might be willing to impose fines on the father? So in case the father holds evidence in possession, would the ditrict court be able to act using only the proves the mother’s side will present?

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