Pre trailevidence<br />Jorge E. de Hoyos Walther<br />www.dha.com.mx<br />De Hoyos y Aviles S.C.<br />
The Federal Constitution: It is the supreme law of the land, no other norm can contradict it.<br />International treaties: According to the Mexican Supreme Court, they are below the Federal Constitution, but above Federal and State law. In case of a contradiction between the treaty and federal or state law, the treaty must prevail.<br />Federal and State law: They are in third place, but in the same hierarchy.<br />Law hierarchy’s in Mexico<br />De Hoyos y Aviles S.C.<br />
(Hague) Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.<br /> It is designed to facilitate the transmission and execution of Letters of Request to obtain evidence, or to perform some other judicial act, and to further the accommodation of the different methods which they use for this purpose; also, to improve mutual judicial co-operation in civil or commercial matters.<br /> NOTE: Article 23 states: “A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.”<br /> When Mexico signed the treaty, it declared that according to Mexican law, it shall only be able to comply with letters of request issued for the purpose of obtaining the production and transcription of documents when the following requirements are met: <br /> (a) that the judicial proceeding has been commenced;<br /> (b) that the documents are reasonably identifiable as to date, subject.<br />International treaties signed by Mexico<br />De Hoyos y Aviles S.C.<br />
Inter-American Convention on Letters Rogatory<br />It applies to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate authority of one of the States Parties to the Convention, that have as their purpose: <br /> a. The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad;<br /> b. The taking of evidence and the obtaining of information abroad, unless a reservation is made in this respect<br />International treaties signed by Mexico<br />De Hoyos y Aviles S.C.<br />
Code of Commerce: It is a federal law. It regulates most of the nations commercial operations. Also, it establishes the judicial procedures for all commercial cases.<br />Federal Civil Procedural Code: It is a federal law. It establishes the judicial procedures for all federal civil disputes. Also, it regulates the procedures involving international cooperation. It is important to clarify that the international cooperation rules of this code only apply if there is no international treaty.<br />Baja California’s Civil Procedural Code: It is a state law. It establishes the judicial procedures for all local civil disputes. <br />Procedural codes<br />De Hoyos y Aviles S.C.<br />
The Mexican law has a pre-trail device which is different of the Discovery in the common law. The difference between the Pre-trail device in the Mexican law and the Discovery in the common law is that the Mexican law is more limited and strict in those cases. <br /><ul><li>It is possible to notify a person for an interrogation about the reasons and motives for which he is in possession of an asset.</li></ul>Pre-trail Devices in Mexico<br />De Hoyos y Aviles S.C.<br />
Pre trails devices:<br /><ul><li>The members of a corporation, such as partners or co-owners, have the right to request other members of the company for any general balance, documents or other information about the company.
It is viable to ask for a statement of a senior person.
Ask for a witness test if their statement will be presented in a foreign country.</li></ul>De Hoyos y Aviles S.C.<br />
<ul><li>Request for an expert testimony of an asset or a person, when it is an urgent manner related with the conditions of the asset or the health conditions.
The judge can impose fines or penalties, even to arrest a person in order to execute these preliminary measures.
In addition, there is an administrative procedure based on the transparency and information access law by which any person can have access to any document existing on the authority files. The Authority has the obligation to give that information to the petitioner. </li></ul>Pre trails devices:<br />De Hoyos y Aviles S.C.<br />
<ul><li>In the Mexican law, the trials in which the evidence can be collect before the trial begins are very limited. The general rule is that the evidence must be collect ones the trial has begun. The following rules are applicable:
Documents: must be presented at the same time as the file of the suit. In case that the plaintiff do not possess the document, they must indicate the place where it is located and have to prove that they already request for a copy of it.
Witnesses: It is important at the moment of the file the suit to announce the witness or witnesses for the trial. In this matter, the civil law is more flexible than the mercantile law.</li></ul>Collection of evidence<br />De Hoyos y Aviles S.C.<br />
<ul><li>Deposition: It is possible to request the parties to answers questions in the Court.
Financial Information: As a petition of one of the parties, the judge has the attribution to request directly to the banks or financial entities about bank accounts, balances, or any financial information, such as about the plaintiff or the defendant.
Expert testimony: Any party can present expert testimony of any fact that needs a special and expert knowledge.
Mail: every merchant have the obligation of conserving for the time of 10 years every letter, fax and e-mail received related to any contract. </li></ul>Collection of evidence<br />De Hoyos y Aviles S.C.<br />