Accessing data held by a third party in the Netherlands has become less difficult. For example, it is now possible where there are strong indications that the third party is acting unlawfully – even if this has not yet been made entirely plausible. n such cases, it is essential for the aggrieved party to gain access to relevant data held by the (likely) infringing party. Usually, it is broadly clear what is happening. Then there is no need to gather additional evidence to support a claim. But sometimes, the facts are not yet crystal clear. Take, for example, a company that has infringing film files on its server, or that has secretly obtained and started using a trade secret. In such cases, the rights holder wants to know exactly what is going on. 

For those situations, the simplified law of evidence offers new possibilities. While it hasn’t gone as far as U.S.-style discovery – where all relevant information must be exchanged – the balance has shifted significantly in favor of the party seeking evidence. First of all, the new article 194 of the Code of Civil Procedure introduces a statutory right to information. It allows a party to request a third party, even outside of court proceedings, to disclose or permit inspection of relevant information. Inspection is now the rule, unless there are compelling reasons to deny it (e.g., personal, medical, financial, or confidential business data). The requested data must be sufficiently specified; there is still no room for a 'fishing expedition'. The applicant must also demonstrate a sufficient interest in the inspection. The applicant no longer needs to exhaust all other avenues to obtain evidence; they can request inspection immediately. Furthermore, the inspection claim can also be directed at a third party who (coincidentally) happens to have the relevant data, even if they are otherwise uninvolved in the  underlying dispute – such as a customer of a suspected infringer. This possibility already existed, but was approached with great caution. 

Soon, we expect the first rulings under the new law of evidence, which will clarify just how much the threshold for inspection has been lowered.