In common law jurisdictions, document disclosure (or "discovery" in the United States) represents a cornerstone of the adversarial litigation system. This allows parties to access all relevant evidence and to present their cases fully and respond effectively to their opponents' arguments. Consequently, common law disclosure requires parties to disclose documents that are relevant to the case, whether they support or undermine their own position or that of their adversary.
The Polish approach of disclosure in aid of litigation is much different. Poland, as a civil law jurisdiction, does not recognise broad discovery. Instead, evidence gathering is largely court-driven and focused on specific documents, rather than expansive disclosure obligations.
GENERAL DUTY
Article 248 of the Polish Code of Civil Procedure is the main statutory basis for disclosure in Poland and defines when courts may order production of documents. Under this provision, the court can request anyone to present a document (hard copy or an electronic file) in their possession that constitutes evidence of a fact relevant to the resolution of the case, at a specified time and place.
SCOPE OF THE OBLIGATION
The mechanism requires the submission of an existing document, rather than the production of a new one. Consequently, it cannot serve as the basis for forcing a (third) party to prepare a document, a summary of specific information or search for unspecified documents that could be used within the trial.
EXCEPTIONS FROM THE GENERAL DUTY
The law provides for material and personal exceptions from the general duty to disclose. Substantively, anyone can evade the obligation if the document contains classified information. Subjectively, it may be done, e.g. by a person who could refuse to testify as a witness in relation to the circumstances covered by the content of the document. A refusal is possible if the document makes the person or their relatives liable for criminal prosecution, brings them into disrepute, or causes them severe and direct property damage. A refusal is also possible if the document is linked to a breach of professional secrecy.
If the person called upon to provide the document is a party to the proceedings, they may not refuse to submit the document, as the only consequence would be to lose the case. Therefore, a party may be requested to provide evidence detrimental to its position.
SANCTIONS
If a party to the proceedings refuses to disclose a document, the court may determine the importance of a party's refusal to provide a document. A third party that refuses to disclose a document despite the court's order without justification is subject to a fine. In practice, this means that parties must weigh the risk of adverse inferences, while third parties face financial penalties for unjustified refusals.
SUMMARY
Unlike common law jurisdictions with their far-reaching discovery rules, Polish civil procedure offers only a narrow mechanism for document disclosure. Article 248 provides a targeted tool for obtaining specific, existing documents, subject to significant exceptions. This approach reflects the broader civil law tradition, where the court plays a more central role in evidence gathering. For foreign practitioners, the key takeaway is that Polish disclosure is not a general fishing expedition but a limited, court-controlled instrument. A limited one, but still allowing access to essential evidence.
The text originally appeared: The Legal Industry Reviews, 24.09.2025