Mexico is a country based in civil law institutions: in this sense, when referring to a civil or commercial trial the applicable regulations are consistently rigid, this has been aggravated by the strict application of the procedural institutions by the competent Courts. In addition, when referring to the means to obtain or produce evidence in a civil or commercial lawsuit, Mexico does not regulate discovery as a pretrial proceeding.
For this reason, the plaintiff was constrained to gather (mainly by himself) all the evidence that could be useful to prove its assertions, with no exception rather than some documents that may be held by the counterpart or a third party.
In addition, for so many years, one of the topics considered as an “unquestionable belief” in a trial was the probatory principle set forth in any civil or commercial procedural regulation about the fact that “the one who affirms has the burden to prove its assertion” (Section 1194 of the Commercial Code & Section 81 of the Federal Code of Civil Procedures). Even though such principle is still valid and enforceable, nowadays its understanding is more flexible since through diverse binding precedents (jurisprudence) delivered by Constitutional Courts, the burden of proof has been modified, and for this reason, not in every case the claimant will be fully constrained to demonstrate or deliver by itself the evidence about the facts that support its petitions.
For that purpose, the Constitutional Courts introduced the theory of the “dynamic burden of proof” which in general terms implies that in some situations, the burden of proof will be reverted when, in accordance with the particular circumstances of the case, the following occurs:
- The plaintiff is impeded or has difficult access to the probatory means requested to demonstrate the facts or assertions in which the case is supported; and
- The defendant has more availability to the evidence or can easily provide evidence into the trial.1
“The Court is now entitled to require, or even to compel the defendant, to provide the evidence needed to verify the facts that constitute the base of the claim. For this reason, defendants should adopt active behaviors in case of a lawsuit, guiding its actions on the principle of good faith”
This theory was constructed among two main ideas (1) availability of the evidence (for which of the parties in a trial the evidence needed is easily reachable), and (2) procedural solidarity (meaning that claimant and defendant should guide its participation in the trial under the principle of good faith).
As a consequence of the “dynamic burden of proof” the Courts started to accept, as a general rule, that given the particularities of the case, the burden of proof may be modified or even reverted to the person that has the knowledge or the necessary means to produce the evidence needed to demonstrate a fact.
Under this new scenario, the defendant will be forced to deliver the evidence that, in the previous understanding of civil and commercial trials, the plaintiff was constrained to obtain or produce by itself (even though the petitioner has limited or no access to the evidence).
As result of this new notion, Courts developed a diverse approximation to cases were the damages and loss profits are claimed as consequence of unlawful acts (precisely in these cases we can find most of the situations where the “dynamic burden of proof” is applied). Among the cases where we can verify the use of this theory are:
- Medical malpractice.
- Product liability.
- Torts.
- Consumer protection (regulated under the Federal Consumer Protection Law).
- Banking transactions made through debit or credit cards.
- Banking transactions made via internet.
- Patents.
In these cases, in order to comply with the “dynamic burden of proof” the Courts must require the defendant to deliver the evidence needed to verify the authenticity of the facts that supports the reliefs sought by the petitioner. This will occur if the defendant is considered as the “strong part” in the original relation, or if it is easier for that part to provide the proof requested (i.e. a bank may be considered as the strong part of the relation with its clients – also in a case where some internet transactions are disputed, the Bank will be constrained to demonstrate that its computer systems were not vulnerable at the time of the transaction).
Regarding how this idea will affect commercial entities within a trial, entities dealing with a claim of such nature will have to foresee the evidence that may be requested by a Court in trial (i.e. to preserve video or digital recordings, to maintain access to computer systems to be analysed by experts, among others). The failure to provide information or to assist the Court with materials requested may result in the presumption of existence and certainty of the facts argued by the counterpart.
Because of the above, a defendant in a civil or commercial claim cannot limit itself to deny the facts referred to in the claim to impose on the petitioner an inflexible burden of proof (as it was previously considered). The Court is now entitled to require, or even to compel the defendant, to provide the evidence needed to verify the facts that constitute the base of the claim. For this reason, defendants should adopt active behaviors in case of a lawsuit, guiding its actions on the principle of good faith.
In addition, entities should adopt a policy to prevent and mitigate any damage arising from their acts, since that policies will help the defendant to reduce exposure and contingencies. Failure to adopt some of these measures – in addition to increasing the exposure of the defendant – will make it difficult to establish a strong defense strategy in the trial.
