What a Difference Discovery Makes

Discovery under the U.S. federal and state law is broad, providing plaintiffs with a variety of tools to assemble evidence for their cases, such as depositions, requests for production of documents, subpoenas, and interrogatories (written questions) and requests for admissions. These measures can be employed before a trial. Moreover, the standard is broad. Discovery in the U.S. is permitted when a question or request is reasonably calculated to lead to the discovery of admissible evidence.

In Thailand, however, there is no pre-trial discovery. Instead, Thailand’s Civil Procedure Code (“CPC”) puts the burden on the parties themselves to gather the evidence needed to establish or defend a claim without much assistance from the court. But once a case reaches trial in a Thai court, the CPC provides for measures that a U.S. lawyer would consider discovery. For example, Section 90 of the CPC gives courts the authority to issue subpoenas either to one of the parties in the case or to a third party in order to obtain documentary evidence.

Although Thai law does not provide for pre-trial discovery, Thailand has started adopting legal concepts and procedures that are predicated on the existence of a robust pre-trial discovery system. For example, Thai law now recognizes product liability claims and class action litigation will be permitted starting early December of 2015.

But many contend that the absence of a robust pre-discovery system hinders the pursuit of such claims. In both Thailand and the U.S., a successful class action suit requires class certification. Certification of a class requires collecting extensive evidence to support the existence of a class and it is often the subject of acrimonious discovery disputes in the U.S. In the U.S., both counsel for the plaintiffs and the defendant(s) know that once a class is certified, there is a strong likelihood that the case will settle. Once a class is certified, the stakes are often too high to allow the case to go to trial.

Since settlements of large class action suits can lead to the recovery of attorneys’ fees in the millions or tens of millions of dollars or more in the U.S., plaintiffs’s lawyers in U.S. class action suits are highly incentivized to collect as much compelling evidence as possible obtain class certification. And aggressive use of discovery is employed to collect this evidence. Indeed, some of the most acrimonious discovery disputes in U.S. litigation occur when plantiffs’s counsel is trying to obtain the evidence required to certify a class.

By contrast, Thai law provides that judicial officers will collect and review the evidence to determine if class certification is warranted. These officers may be quite competent and diligent, but they will not have the same incentives that a plaintiffs’s lawyer in U.S. class action suit has to uncover evidence justifying class certification. If a plaintiffs class action lawyer in the U.S. can uncover the evidence necessary to justify class certification, the financial rewards can be tremendous. Compare this to the incentives and tools available in Thailand.

These procedural differences between U.S. and Thai law can and will likely make a major difference in how substantively similar U.S. and Thai laws are implemented in practice. Although Thailand enacted a product liability law in 2009, Thailand has not seen the massive increase in product liability cases that manufacturers and distributors feared would occur. Although Thailand’s class action law has not come into force, it would not be surprising if it to proves to be a paper tiger.

Douglas Mancill