IT expert evidence in Danish civil proceedings

This page is written for lawyers and law firms outside Denmark who have a client involved in a Danish civil dispute or arbitration where digital evidence matters: emails, chat messages, log files, source code, cloud data or the condition of an IT system. It gives a general overview of how expert and documentary evidence works in Denmark and where an IT expert fits in. It is not legal advice.

The rules referred to are found in the Danish Administration of Justice Act (retsplejeloven), available in Danish at retsinformation.dk.

Two kinds of expert evidence

Court-appointed expert (syn og skøn)

The main form of expert evidence in Danish civil courts is syn og skøn, an examination by a court-appointed expert. Under section 196, a party requests the examination, describes its subject matter and purpose, and the court decides whether it will take place. Both parties submit questions. Under section 198(3), each party may propose experts, but the court is not bound by the proposals and must give the parties an opportunity to comment before appointing anyone.

The expert answers the parties’ questions in a written report and may later be questioned in court. Because the expert is neutral and answers both sides, the report often carries significant weight. → IT expert appointed by the court (Danish)

Party-appointed expert reports

Reports commissioned by one party are common before proceedings start, for example to assess whether a claim is worth pursuing. Once proceedings are pending, the Danish courts’ own guidance on domstol.dk indicates that a report obtained by one party alone generally cannot be used as evidence. Under section 209 a, however, the court may, at the joint request of the parties, allow each side to submit reports from its own experts, either in addition to or instead of a court-appointed expert. → Party report or court expert (Danish)

For a foreign lawyer used to party experts as the default, this is the most important difference: in Danish court proceedings, a single neutral expert is the normal route.

Document production (edition) is not discovery

There is no general obligation to disclose all relevant documents of the kind known from common law discovery. Instead, a party may ask the court to order the other side to produce specific documents. Under section 298, the court may order the opposing party to produce documents in its possession that the requesting party intends to rely on. Under section 300, the request must state the facts the documents are meant to prove and the reasons for believing the other party holds them. If an order is not complied with without lawful reason, the court may take this into account when assessing the evidence (section 298(2), see section 344(2)). Section 299 allows similar orders against third parties.

In practice, this means requests should be narrow and concrete: named custodians, a defined period, specific systems and, where relevant, search terms. An IT expert can help describe where data is likely to be stored and what a realistic extraction looks like. → Document production step by step (Danish)

Preservation of evidence

Danish law also allows evidence to be taken before proceedings are commenced. Under section 343, the court may permit evidence to be taken even if this is not for use in a pending case, including an examination by a court-appointed expert. This can be relevant where data or systems may change before a case is filed. → Taking evidence without proceedings (Danish)

Independently of any court order, a client should preserve relevant data as soon as a dispute is foreseeable: stop automatic deletion, keep devices and accounts intact, and avoid internal “clean-up”. → Preservation and litigation hold (Danish)

Search and seizure of evidence in IP cases

For infringements of intellectual property rights, chapter 57 a of the Act provides for fogedretlig bevissikring, a court-ordered search for evidence at the opposing party’s premises. Section 653(2) lists the rights covered, including copyright, trademarks, designs and patents. Under section 653(3), the search may include information on computer systems, software and electronic storage media, and under section 653 b(2) the enforcement court may appoint one or more independent experts to assist. The court will refuse the request in whole or in part if the search would cause harm out of proportion to the rights holder’s interest (section 653(4)).

Under section 653 c, the applicant must, as a rule, commence proceedings within four weeks after being notified that the search has been concluded. This procedure is limited to the rights listed and is not a general tool for other civil disputes. → IP search orders with an IT expert (Danish)

Arbitration

IT disputes in Denmark are often resolved by arbitration, for example under the rules of the Danish Arbitration Institute (Voldgiftsinstituttet). In arbitration, the parties and the tribunal generally have more freedom to decide how expert evidence is presented, including whether to use party-appointed experts. The Institute can also propose experts and offers expert opinions on IT matters outside arbitration. → Digital evidence in arbitration (Danish) and IT expert opinion via the Arbitration Institute (Danish)

Language

Under section 149, the language of the Danish courts is Danish. Documents in a foreign language must be accompanied by a translation, which must be certified by a qualified translator if the court or the other party requires it. Translation can be dispensed with if both parties agree and the court considers that it has sufficient knowledge of the language. In arbitration, the language of the proceedings is generally a matter for the parties and the tribunal. Expert reports for Danish court proceedings are therefore normally written in Danish, and large volumes of English emails or technical documentation may raise translation questions early on. → Translation of digital evidence (Danish) and English-Danish terms (Danish)

Practical first steps

If your client may be involved in a Danish dispute with an IT element:

Engage Danish counsel. Procedural choices such as court-appointed expert, document production or IP search orders depend on Danish law and must be assessed by a Danish lawyer.
Preserve data now. Send clear preservation instructions to the client and, where relevant, its IT provider.
Map the data. Identify systems, custodians, devices and cloud services, and where they are hosted.
Define the technical questions. What exactly needs to be shown: authenticity, timing, deletion, system defects or data transfers?
Consider an early independent review. A neutral IT assessment before proceedings can help decide which route to take and how to phrase questions for a court-appointed expert. → Choosing an IT expert (Danish)

Contact Nielco IT

Nielco IT is run by John Nielsen, an independent IT expert with more than 30 years of experience in IT security and experience from court proceedings. Nielco IT works for parties, lawyers and courts, sells no products and has no vendor partnerships. Assignments are handled throughout Denmark.

Phone: +45 70 13 63 23 · Email: info@nielcoit.dk

You are welcome to describe the matter briefly in English. More information about the service for lawyers is available at nielcoit.dk, and you can also submit a case or read about IT expert services for lawyers (Danish).