How to Ask Your Opponent to Produce Its Books in a Commercial Case

In many commercial cases, the decisive evidence sits in your opponent's books, not in your file. The law lets you ask for them, but an incomplete memo is not examined on its merits: the court rejects it on its own motion.

Two routes in the Law of Evidence

1. The general route: compelling the opponent to produce a relevant document in its possession (Article 34 of the Law of Evidence and Article 42 of the Procedural Rules).
2. The commercial-case route: requesting production of, or access to, a document related to the case (Article 36 of the Law and Article 43 of the Procedural Rules).

Each route has its own elements and its own consequence for refusal. Choose the route first, then build the memo on its elements.

The commercial route: three elements

Article 43 of the Procedural Rules requires the request to be made by a memo containing:

1. Proof that the document relates to the commercial dealing at issue in the case, or that it leads to revealing the truth in it.
2. Identification of the document itself or its type.
3. A declaration by you that the document is not confidential, or that access to it would not infringe any trade secret right or related rights.

If your opponent claims confidentiality, it must submit that defense, with proof of it, in the same session, unless the court grants it time.

If the request meets its requirements, the court orders production or access by a decision recorded in the minutes, and that decision is final and not open to objection. If it does not:

"If the request does not meet the requirements for its submission, the court shall, on its own motion, decide not to accept it, and this shall be recorded in the minutes."

Procedural Rules of the Law of Evidence, Article 43, paragraph 3 (translation; the Arabic text is the original)

How do you identify the book?

Identifying by type means naming the book. The Commercial Books Law requires a merchant to keep at least three books: the original journal, the inventory book, and the general ledger. A merchant whose capital does not exceed one hundred thousand riyals is exempt (Article 1).

The Law also requires the merchant and its heirs to keep the books, correspondence, and documents for at least ten years (Article 8).

So do not ask for all of the company's books in general terms. Name the book, the period, and the account or transactions whose entries you want examined, and their link to the dealing at issue.

The general route: the Article 34 elements

This route is available in three situations: where the law allows the opponent to be required to produce or deliver the document, where the document is shared between you, or where your opponent relied on it at any stage of the case (Article 34, paragraph 1). A document is considered shared in particular if it is for the benefit of both litigants or records their mutual obligations and rights.

"A request to compel a litigant to produce any document in its possession under Article (34) of the Law shall be made by memo, and the court shall, on its own motion, decide not to accept the request if it does not meet the elements set out in paragraph (2) of Article (34) of the Law."

Procedural Rules of the Law of Evidence, Article 42 (translation; the Arabic text is the original)

The three elements in paragraph 2 are:

1. A description of the document and its content, in as much detail as possible.
2. The indications and circumstances supporting that the document is in the opponent's possession.
3. The fact the document is offered to prove, and the basis for requiring the opponent to produce it.

For the second element, Articles 1 and 8 of the Commercial Books Law help you: the duty to keep the books and the duty to retain them for ten years are among the indications that they are in the possession of a merchant opponent.

What if the opponent refuses?

The consequence depends on the route:

• Commercial route: the court may treat the refusal as a presumption.

"If the litigant refuses to produce what the court ordered it to produce to its opponent under paragraph (1) of this Article, the court may treat its refusal as a presumption."

Law of Evidence, Article 36, paragraph 2 (translation; the Arabic text is the original)

• General route: if the opponent refuses after being given time once, the copy you submitted is deemed correct and identical to the original. If you did not submit a copy, the court may accept your account of the document's form and content (Article 35, paragraph 2).
• Both routes: a party that refuses to produce the document, or to allow access to it, may not rely on it later in the case (Procedural Rules, Article 44).

The Commercial Books Law has its own provision on books:

"Upon the merchant's refusal to produce its books, the competent judicial authority may treat the refusal as a presumption that the facts to be proved by the books are true."

Commercial Books Law, Article 10 (translation; the Arabic text is the original)

What do the books prove once produced?

The probative value of books is governed by Article 31 of the Law of Evidence. The most important part for someone requesting an opponent's books:

"The merchants' mandatory books, whether regular or not, are evidence against the merchant who owns them in what its opponent, merchant or non-merchant, relied on; in that case, the entries in the book owner's favor are also evidence for it."

Law of Evidence, Article 31, paragraph 3 (translation; the Arabic text is the original)

This means that if you rely on your opponent's books, the entries in its favor also become evidence for it. So study what you request before you rely on it.

Three other rules you need:

1. Regular mandatory books are evidence for the merchant who owns them against a merchant opponent. That probative value falls if the contrary is proved by any means of proof, including the opponent's regular books (Article 31, paragraph 2).
2. If you rely on your merchant opponent's books and accept their contents in advance, and it refuses without justification to produce them, the court may direct the supplementary oath to you on the validity of your claim (Article 31, paragraph 4).
3. Entries in the books are presumed to have been made with the merchant's knowledge and consent, unless there is evidence to the contrary (Commercial Books Law, Article 9).

Memo checklist

1. Choose the route: Article 36 in a commercial case, or Article 34.
2. Name the book by type, the period, and the entries requested.
3. Link it to the commercial dealing at issue, or to the fact it proves.
4. Add the confidentiality declaration on the commercial route.
5. Set out the indications that the book is in the opponent's possession, on the general route.
6. Decide in advance whether you will rely on the books and accept their contents, and weigh the effect of that.

Reference: Law of Evidence, issued by Royal Decree No. (M/43) dated 1443/05/26 AH; Procedural Rules of the Law of Evidence, issued by Minister of Justice Decision No. 921 dated 1444/03/16 AH; Commercial Books Law, issued by Royal Decree No. (M/61) dated 1409/12/17 AH.

This article is a general explanation, not legal advice.