Union européenne
Moyens de faire respecter les DPI
48. Please describe how your legislation authorizes judges to order production of evidence by the opposing party. Please give precise information on what measures are taken to ensure the protection of confidential information.
Neither the Industrial Property Law nor the Law on Copyright and Related Rights contains such provisions. However, Article 182 of the Code of Civil and Commercial Procedure, which applies residually, does provide for this authority, although limited to documentary evidence. This Article stipulates that when one of the parties to a proceeding needs to use a document which, it alleges, lies in the control of the opposing party, it must produce a copy thereof or, at least, all the information available to it concerning its contents and, moreover, prove that the document is or was in the possession of the opposing party. According to the same provision, in these circumstances the court may order that the opposing party be warned to hand over the document within the time-limit fixed by the court itself and if it does not hand over the document or produce contrary information, the court may decide to accept the text of the document provided by the party requesting disclosure or declare that the information supplied concerning its content is to be considered accurate for the purposes of the proceedings. If the evidence concerning the existence of the document in the control of the opposing party is contradictory, the court will reserve the aforementioned ruling for the definitive judgement, on which occasion it will, in its wisdom, draw the appropriate conclusions from the statements of the parties and the evidence submitted. There are various provisions in the Guatemalan legislation for the protection of confidential information. In principle, while fundamentally guaranteeing that administrative acts, like judicial proceedings, will be public, the Constitution provides, as an exception, for the case in which someone may have supplied data under a guarantee of confidentiality. In Article 194 of the Industrial Property Law there is an express reference to the obligation to protect confidential information, where the judicial authorities, having ordered a border measure, authorized the person granted the measure free access to the goods or products detained in order that he may inspect them and obtain further evidence in support of his claim. Likewise, Article 199 of the Industrial Property Law, which enunciates the principle of reversal or the burden of proof in cases of claims for infringements of a patent-protected process, recognizes that in the submission of any evidence to the contrary, account must be taken of the legitimate interest of the defendant regarding protection of his trade secrets, although this does not relief him of the burden of proving that he uses a process different from the one protected by patent. Again, Article 129 of the Code of Civil and Commercial Procedure sets out the general rule that evidence can be submitted confidentially when, on account of the nature of the evidence, the judicial authority deems it appropriate. Finally, Article 63 of the Judicial Organization Law, while enunciating the principle that acts and proceedings of the courts of the Republic are public, admits as exceptions to that principle cases where, by legal order or on grounds of public morality or security, they must be kept confidential. Thus, this provision authorizes the court to declare, in very special cases and under strict responsibility, acts or proceedings confidential.