Requesting access to, copies of, or extracts from data: new rules of evidence

Since the beginning of last year, the Act on the Simplification and Modernisation of the Law of Evidence has come into force. Under this new law of evidence, the process of requesting access to or the production of documents has become easier and more streamlined. The aim of the new Act is to make the process more efficient and the gathering of information more proactive.

Since the Act’s introduction, there have therefore been more requests for access than before.

The assessment framework

The judge in preliminary relief proceedings will grant the request unless he considers that:

a. the information requested is not sufficiently specified,

b. there is insufficient interest in the interim evidence-gathering,

c. the request for interim evidence-gathering is contrary to the proper conduct of proceedings,

d. there is an abuse of power, or

e. there are other compelling reasons that preclude the interim evidence-gathering.

Furthermore, in the case of a claim for access to, a copy of, or an extract from data, there must be a legal relationship to which the requested data relates.

Two dismissals in cases of directors’ liability

The bar for granting such requests is not high; however, two requests for access relating to directors’ liability were recently dismissed.

The first case

The first case was heard at the Gelderland District Court[1]. A company had been ordered to pay a certain sum of money; the creditor argued that there had been a misappropriation of assets and held the director liable. The court did not agree and found that there was no “legal relationship”.

The court states that the basic principle is that only the company is liable for its debts. Only in exceptional cases can the company’s board, in addition to the company, be held liable for the company’s debt to a creditor. Directors’ liability may arise if the director can be seriously blamed for the detriment caused to the creditor in a situation where the director acted on behalf of the company or caused or permitted the company to fail to fulfil its statutory or contractual obligations. According to established case law, the bar for establishing directors’ liability is high.

[1] Gelderland District Court 19 November 2025, ECLI:NL:RBGEL:2025:9902

In the opinion of the judge hearing the application for interim relief, it was not yet sufficiently plausible that the director had withdrawn assets from the company with the aim of frustrating the creditors’ ability to recover their claims, and therefore that a legal relationship existed between the creditor and the director on the basis of director’s liability. The court noted that, furthermore, the claim concerned a very extensive disclosure, with the description of the documents sought being formulated in very general terms. These documents were not further specified, for example by including a restriction to a particular period, or by including search terms on the basis of which the [defendants] were to search for those documents.

The second case

The second case was heard at the Amsterdam District Court and concerned a well-known clothing group, namely Hunkemöller. The applicants in the case are investment funds that lent money to Hunkemöller International BV via bonds; the defendants are the directors of Hunkemöller. Subsequent restructuring worsened the position of the investment funds. The funds argued that the restructuring had been carried out secretly and unlawfully. They held the directors liable for the damage they claimed to have suffered. To substantiate their claim against the directors, they sought access to various documents and communications relating to the restructuring.

The court ruled that, for directors to be held liable, it must first be established that the companies acted ‘wrongfully’. As the proceedings against the companies have not yet been concluded, the court found that it remains uncertain whether the companies are liable. Nor is it made clear, or hardly at all, what serious personal allegations could be levelled against the directors. According to the court, this is also consistent with the funds’ approach, which amounts to them being on the lookout for arguments. The fact that the directors acted on the basis of unjustified motives and manifestly incorrect considerations is, according to the court, not (yet) a fact. The funds do not go beyond mere suspicions regarding the directors’ motives.

The court subsequently rejected the requests as (too) premature and (too) speculative. According to the court, a different ruling would lead to an impermissible “fishing expedition”, and preliminary evidence-gathering procedures are not intended for that purpose.

The lessons from these two cases

The conclusion that can be drawn from these two cases is not that it would be difficult to obtain access to documents. The lesson is, however, that directors’ liability arises only in exceptional cases and that the potential liability of a director, including in relation to a claim for access, must be well-founded.

Fruytier Lawyers in Business regularly litigates in access proceedings and can therefore assist you in such proceedings with expertise and experience.

Advice

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