Key takeaways
R. 190 RoP does not permit fishing expeditions.
The purpose of R. 190 RoP is to enable access to specified evidence that is not readily accessible to the party bearing the burden of proof. An order under R. 190 RoP requires reasonably available evidence supporting the plausibility of the claim and is subject to the cumulative requirements of specificity, necessity and proportionality (cf. Court of Appeal, UPC_CoA_57/2026, Polytechnik v Dall). Such measures are of particular importance because relevant technical or commercial data often reside exclusively within the sphere of the opposing party or third parties.
This approach reflects the rationale underlying Art. 6 of Directive 2004/48/EC (Enforcement-Directive), which provides for judicial measures intended to ensure effective access to evidence, subject to appropriate safeguards.
The assessment whether the production of specific evidence is justified falls within the discretion of the Court of First Instance.
The Court of Appeal will intervene only where the assessment of the Court of First Instance is affected by an error of law, a manifest error of assessment, or a failure properly to apply the limits of R. 190 RoP (cf. Court of Appeal, UPC_CoA_57/2026, Polytechnik v Dall).
Neither Art. 59 UPCA nor R. 190 RoP require an application to produce evidence to be lodged together with the statement of claim.
Whether such an application has been made in a timely manner must be assessed having regard to the state of the proceedings and to the procedural developments that have occurred at the time the request is filed.
Division
Court of Appeal
UPC number
UPC_CoA_76/2026
Type of proceedings
Order to produce evidence
Parties
Appellant: Xingi Technology Co., Ltd. and Jiangsu Jiuzhou Xingji High-Performance Fiber Products Co., Ltd.
Respondent: Avient Protective Materials B.V.
Patent(s)
EP 2 791 402
Jurisdictions
UPC territory
Body of legislation / Rules
Art. 59 UPCA, R. 190, 222.2 RoP
