Discovery of Evidence Requests and the Scope of Bolar Exemption

Discovery of evidence requests are specially regulated under Civil Procedural Law No. 6100. Discovery of evidence serves the purpose of determining a fact that has not yet been examined in an ongoing action or a fact that will be put forward in a future action.

It must be emphasised that unlike the US and UK systems, there is no full and frank disclosure procedure under Turkish civil law. In other words, the parties may decide, at their discretion, which documents they will or will not submit to the court; thus, it is not mandatory to disclose all information. Therefore, discovery of evidence from a third party via court proceedings is crucial. Article 400 of Turkish Code of Civil Procedure No. 6100 rules that the party requesting discovery of evidence must have a legal interest, and it is accepted that a legal interest exists if the evidence is lost, or that it will be difficult to depend on that evidence unless it is immediately revealed, except for the cases clearly stipulated in the law.

Especially in the enforcement of pharmaceutical patents, the patent owner, who is prevented from filing an action due to the so-called Bolar exemption, may use the discovery of evidence tool at least to complete the preparations of an enforcement action. However, in our opinion, some of the IP courts misinterpret the Bolar exception deciding that the Bolar exception continues until the Gx product launches and, within this period, the patent holder cannot take any action. However, as discovery of evidence is not an action on the merits, it is not blocked by the Bolar exemption, and assists the patent holder to discover the evidence of infringement, beforehand. The courts may also accept ex parte discovery of evidence upon the request of the patent holder if the conditions under Article 403 of the Civil Procedural Law are met. Since discovery of evidence is not an action as to the merits, no appeal mechanism is available. However, the counter-party may oppose the decision of discovery of evidence on the grounds that the conditions under Article 400 have not been met. This objection is examined and concluded according to the circumstances of the incident by the same court that conducted the discovery of evidence.

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