2026-08-27 - CoA - Xingi Technology et al. v. Avient Protective Materials - UPC-COA-0000076/2026

1. The purpose of R. 190 RoP is to ensure effective judicial protection by enabling access to specified evidence that is not readily accessible to the party bearing the burden of proof. An order under R. 190 RoP requires reasonably available evidence supporting the plausibility of the claim and is subject to the cumulative requirements of specificity, necessity and proportionality. R. 190 RoP does not permit fishing expeditions. 2. Under R. 190 RoP, the assessment of whether the production of specific evidence is justified by the requirements of necessity and proportionality falls, in principle, within the margin of discretion of the Court of First Instance. The Court of Appeal will interfere with that assessment only in the event of an error of law, a manifest error of assessment, or a failure properly to apply the limits inherent in R. 190 RoP. 3. The fact that a party considers the evidence already available sufficient to support its allegations does not preclude it from seeking access to additional evidence under R. 190 RoP if that party has a legitimate interest in the additional evidence (as in case when the adverse party argues that the fact to be proven can only be established by means of additional evidence). R. 190 RoP requires that the applicant has already presented reasonably available evidence supporting the plausibility of its claim. 4. Neither Art. 59 UPCA nor R. 190 RoP requires an application for the production of evidence to be lodged together with the Statement of claim. Whether such an application has been made in a timely manner must be assessed having regard to the state of the proceedings and to the procedural developments that have occurred at the time the request is filed. 5. New factual allegations and supporting evidence relied upon for the first time on appeal may be disregarded where no justification is provided for their late introduction as required by R. 222.2 RoP. 6. A conditional appeal is inadmissible where it makes consideration of the appeal dependent upon a prior determination by the Court of Appeal whether evidence not yet produced and tested will ultimately be sufficient for the purposes of the claim in the main proceedings. Whether such evidence is sufficient to establish the claim is a matter for the court deciding the merits of the case and therefore lies outside the scope of the appeal. 7. Upon service of the decision or of the order determining the appeal, a suspensive effect granted pending determination of that appeal ceases to operate. Any subsequent issues relating to the enforcement of the order of the Court of First Instance are to be assessed by the judge- rapporteur of that Court in light of the circumstances then existing.

The Court of Appeal set out the framework governing an order for the production of evidence under R. 190 RoP and dismissed an appeal against such an order. R. 190 RoP, read with Art. 59 UPCA and against the rationale of Art. 6 of Directive 2004/48/EC, exists to secure effective judicial protection where evidence lies outside the sphere of the party bearing the burden of proof; it requires reasonably available evidence supporting the plausibility of the claim and is subject to the cumulative requirements of specificity, necessity and proportionality, and it permits no fishing expedition. Whether necessity and proportionality are met falls in principle within the Court of First Instance's margin of discretion, and the Court of Appeal intervenes only for an error of law, a manifest error of assessment or a failure to apply the limits inherent in R. 190 RoP. On the merits the Court held that a party may seek further evidence although it considers the evidence it already holds sufficient, that neither Art. 59 UPCA nor R. 190 RoP requires the application to be lodged with the Statement of claim, and that specifying the place of delivery is part of the arrangements R. 190.4(a) RoP requires the Court to determine. New factual allegations raised for the first time on appeal were disregarded for want of any justification under R. 222.2 RoP. The conditional cross-appeal was inadmissible because its condition required the Court to decide whether the evidence would ultimately suffice, a merits question outside the appeal.