Trial lecture - time and place
Adjudication committee
- Professor Sverre Blandhol, University of Oslo (leader)
- Professor Ragna Aarli, University of Bergen (1. opponent)
- Professor Eva Smith, University of Copenhagen (2. opponent)
Chair of defense
Supervisors
- Professor Inge Lorange Backer, University of Oslo
- Professor Magne Strandberg, University of Bergen
Summary
A fundamental objective in Norwegian civil procedure is to achieve materially correct results. The more and better evidence presented in a case, the better the foundation the court will have to consider whether the decision is true. However, one or both of the parties do not necessarily possess all of the relevant evidence. Before evidence can be presented to the judge, a party lacking evidence will therefore, in some cases, have to obtain access to the evidence before he can include it in his summary of evidence. The process related to evidence may, in other words, be divided into two phases. The first phase deals with access to evidence, and the second phase deals with presenting the evidence in court. This thesis concentrates on the first phase, and the main question posed is under what circumstances and on what terms the party may gain access to the evidence.
Access to evidence
The issue requires a detailed analysis of the three procedures for access to real evidence; the obligation to make available as evidence objects which are in one’s possession, the taking of evidence once legal proceedings have begun, and the securing of evidence before legal proceedings have begun. The three procedures are regulated in the Dispute Act chapters 26, 27 and 28. The obligation to respond to an order of information regulated in the Dispute Act chapter 28 A is seen as part of the obligation to make evidence available. In order to shed light on the topic, I use several different perspectives, considering: each party, the lawyers, and the judge.
Digital evidence
A type of evidence that it is often problematic to provide access to is digitally stored evidence. While physical objects are mostly clearly defined and limited, digitally stored information is dynamic in size, constantly changing and often stored along with information irrelevant to the case. In addition, digitally stored information is easy to copy, manipulate, and delete. These features make it difficult to get access to the relevant evidence, both practically and legally. Digital evidence is therefore well suited for examining issues related to questions about access to evidence. It is, however, difficult to treat all issues on the basis of digital evidence, and some questions are therefore examined through real evidence generally. The emphasis is still – if possible – on digital evidence.
Assessment of evidence
The issue also invites to a discussion of the assessment of evidence in these cases. A general characteristic of petitions for access to evidence is that the party submitting the petition can only describe the evidence which he wants access to a limited extent – for the simple reason that the party does not have access to the evidence. The court generally does not have access to the object in advance of the decision, and must therefore base the decision on the party’s descriptions of the evidence. This implies a factor of uncertainty that may influence the court’s decision on whether the party should get access to the evidence or not. The decision is also subject to conflicting considerations that must be weighed against each other. Because of the uncertain fact base, the thesis will highlight the importance of the relevant considerations and the weight these considerations might be considered by a judge.