Evidence gathering in two countries: stages and deadlines
When a patent dispute touches two countries, evidence often sits in the one where the client is not litigating. Gathering it does not happen through a single request. It moves through separate stages, each with its own decision-maker, and missing one stage can close a route the case still needs.
What changes when evidence sits abroad
A dispute confined to one country lets a court order disclosure directly. Once evidence sits across a border, the requesting court cannot simply order the other side to hand it over. It asks the court or authority in the other country to do so, and that authority applies its own procedure, not the one the case runs under at home.
This changes timing in three ways. The request itself takes time to prepare and translate. The receiving court sets its own timetable once the request arrives. And a refusal or a narrowed response can only be challenged through the procedure of the country that received it, not the one that sent it.
Where both countries sit inside the EU, cooperation channels are more standardised, and evidence generally moves within a predictable band. Where one country sits outside the EU, the request usually goes through a treaty-based channel that the receiving country's own courts control from start to finish, and the timeline lengthens accordingly.
The same evidence-custody problem shows up outside patent disputes. An agency that keeps design files for a games project faces a comparable question about who can compel disclosure and from which side of a border — see Games and interactive entertainment an agency keeps the design.
Stages, in order
The sequence below reflects how a cross-border request for evidence typically moves once a dispute is already open. Each stage has to close before the next one has anything to work with.
| Stage | What happens | Who acts | Typical duration |
|---|---|---|---|
| Identification | The evidence and its location are pinned down, including who holds it and in what form | Client and counsel | Days to a few weeks |
| Request drafting | The formal request is drafted in the form the receiving country accepts, with translation where required | Counsel, with a certified translator | One to several weeks |
| Transmission | The request is sent through the applicable channel to the receiving court or authority | Sending court or authority | Days to a few weeks |
| Execution | The receiving authority carries out the request under its own rules and sets its own hearing or production date | Receiving court or authority | Weeks to several months |
| Return and use | The material comes back to the requesting proceeding and is entered into the case file | Requesting court, with counsel | Days to a few weeks |
The point of no return sits at transmission. Once a request has been sent through the correct channel, withdrawing it and starting again in a different form usually costs more time than waiting for the first one to close.
Common causes of delay
A handful of recurring problems account for most of the slippage seen in this kind of request. Knowing them in advance lets counsel head them off before they cost weeks.
- The evidence is described too loosely for the receiving authority to identify what is being asked for.
- The request goes through the wrong channel for the type of evidence or the country involved.
- A certified translation is missing or does not match the form the receiving authority requires.
- Several defendants sit in different countries, so more than one channel has to run at once.
- A parallel proceeding involving the same evidence is already open elsewhere, and the two have to be reconciled.
What to do first
- Confirm exactly where the evidence sits and who holds it, before any request is drafted.
- Instruct counsel to check which channel the receiving country accepts for this type of evidence.
- Prepare the underlying documents in the form and language the receiving authority requires.
- Send the request through that channel and keep a record of the date it was sent.
- Track the receiving authority's own timetable rather than the timetable of the home proceeding.
- Flag any refusal or narrowing immediately, so it can be challenged in the country that issued it.
Who decides and how long it takes
The requesting court decides whether to seek the evidence at all and what the case needs from it. The receiving court or authority decides how the request is executed, on what schedule, and whether any part of it is refused. Neither side controls the other's calendar.
Where the dispute runs before the Unified Patent Court, the request still passes through the same two decision points: the panel hearing the case decides what to ask for, and the receiving jurisdiction decides how its own procedure answers.
A refusal to execute a request can sometimes be appealed, but only within the receiving country's own court system, on its own timetable. An appeal filed in the requesting proceeding has no effect on that decision.
If your situation differs
If the evidence sits with a party already named in the dispute, the request can sometimes be addressed to that party directly, without going through the receiving authority at all. Check this route first — it is faster when it is available.
If the other side does not respond within the receiving authority's own deadline, the requesting court can ask that authority to compel a response, but it cannot compel the response itself. The delay this adds depends entirely on the receiving procedure.
If the evidence sits with a party who is not part of the dispute, the request usually has to go through the full authority-to-authority channel, since there is no party to address directly, and the timetable follows the receiving country's own rules from the outset.
What this page does not cover
This page sets out the stages and the decision points. It does not establish who actually holds the evidence abroad, what that party's standing is, or whether the counterparty behind a foreign entity is worth pursuing at all. That is a separate check — see, for one jurisdiction, Counterparty in Luxembourg in detail.
It also does not cover privilege disputes over the evidence once it arrives, how its cost is allocated between the parties, or how a refusal interacts with a parallel infringement action running elsewhere.
Related reading
The costs side of a cross-border dispute, including security for costs, is covered separately — see Costs and security for costs step by step.
If your case sits elsewhere
Not every cross-border evidence question starts from a patent dispute already open. If custody sits with a platform rather than a person, the first step is different — see When custody is held by a platform in detail.
If the dispute is actually about a similar mark filed in your class, the evidence question does not arise the same way — see What to do first in this situation in practice.
If the underlying problem is that a deal transferred rights the seller never held, the evidence to gather is different again — see The deal transfers rights that were never owned IP.
FAQ
How long does evidence gathering in two countries take in practice?
There is no fixed figure, because the receiving authority sets its own timetable once the request arrives. Drafting and transmission typically add weeks; execution abroad can add anywhere from a few weeks to several months, depending on the receiving country's own workload.
Which documents are needed to start?
A clear description of the evidence, its location, and the person or organisation holding it, together with the underlying case documents translated into the form the receiving authority accepts. Loosely described evidence is the most common reason a request stalls.
What happens if the other side does not respond?
The requesting court can ask the receiving authority to compel a response under that authority's own procedure. It cannot compel the response directly, and the added delay depends on how quickly the receiving country's process moves.
Verified
Checked on the date this page was last published. This description covers procedure only. It does not cite specific statutory provisions, since verifying those against the national implementing rules of every receiving country sits outside what a single overview page can confirm. For how personal data referenced in a request is handled, see Privacy notice overview step by step.