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The 1994 Japanese product liability law was amended to eliminate the plaintiff’s requirement to prove negligence or intent on the part of the defendant. However, the plaintiff still must prove the product was defective. Does the current law of civil procedure enable the plaintiff to do so effectively? Using a hypothetical automobile accident case wherein documents held by the manufacturer are essential to prove defective design or manufacture, we conclude it will be very difficult for the plaintiff to obtain the documents as prove the defect.
Besides other production issues, the critical sections of the Code of Civil Procedure preventing effective document production are Sections 196 and 220 which shield documents from discovery containing “trade secrets” and documents created for the use of the holder. Some efforts to expand the scope of discovery as recommended in the 2001 Justice Reform Council have not effectively eliminated or reduced this problem.
We suggest significant modification and expansion of discovery in product liability cases is necessary, in particular regarding CCP sections 196 and 220. The underlying institutional opposition to wider discovery is partly the minimal role of the parties and the active role of the judges in Roman law based civil law jurisdictions. The other more important opposition is the fear of discovery abuse as thought to be in the United States. We believe these objections are surmountable.
United States experience indicates discovery abuse can be prevented in large part by coordinated actions by both the judiciary and the Bar Association. The judiciary would have to be given the power to impose sanctions of both contempt of court for egregious discovery abuse, as well as monitory penalties. The Bar Associations then would have to become active in imposing professional sanctions on attorneys based on judicial contempt orders.
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