Preservation of Evidence

Also known as: Evidence Preservation, Determination of Evidence, Expert Inspection, Delil Tespiti

In short

The court-supervised examination and recording, before or during proceedings, of evidence at risk of being lost or altered.

Preservation of evidence is the examination and recording, through the court, of evidence to be used in a future or pending case against the risk of loss or alteration (Code of Civil Procedure Arts. 400-406). It is used for situations that may change over time, such as construction defects, the condition of delivered goods, website content or a machine failure.

Conditions

Preservation of evidence may be requested where:

There is a risk that the evidence will be lost or become difficult to use later,
The applicant has another legal interest in having the evidence determined immediately.

The applicant must establish these conditions on a prima facie basis.

Procedure

Competent court: The court hearing the case if one is pending; otherwise the court that would hear the main case or the court where the item is located.
Examination: The court conducts the preservation through site inspection, expert examination or hearing witnesses.
Hearing the other party: As a rule, the other party is heard; in urgent cases, preservation may be done without hearing it and the result is served on it.
Costs: The applicant pays the costs; in the main case they are added to litigation costs.

Digital Evidence

In commercial disputes, emails, correspondence, website content and social media posts are important evidence. Since they can be deleted, they should be recorded through court preservation of evidence or a notarial determination. Unfair competition content or IP infringements on a competitor’s website can be documented this way.

Difference from an Interim Injunction

Preservation of evidence only records the current situation; it does not stop the other party from acting. If a change must be prevented, an interim injunction should be sought. Preservation of evidence is not subject to the mandatory mediation requirement preceding commercial cases.

Frequently Asked Questions

Must a case be pending to request preservation of evidence?

No. Preservation of evidence can also be requested before a case is filed. In that case, it is requested from the court that would hear the main case or the court where the item to be examined is located.

Are the findings binding on the judge?

The evidence preserved is assessed in the case like other evidence. If the preservation was carried out without hearing the other party, the findings are served on the other party, who may raise objections. The court may order a new examination if necessary.

← Glossary A–Z