Summary
Production of only the necessary portions and the court's in camera review of presented documents can be distinguished and used.
4.1The Standard by Which the Path Opens
The mere fact that secrets are mixed in does not require every necessary part to be concealed together. As confirmed earlier, this statement dovetails with the judgment that a document that is not directly related to a matter to be proved, or that is unnecessary as documentary evidence, need not be accepted on a motion for document production. Yet in the scene where plaintiff A applies for the approval documents held by defendant B and defendant B refuses them in their entirety on the ground that they are internal documents, it remains a question whether the existence of secrets alone permits every part to be concealed. On this point, the author takes the view that production limited to the necessary parts and the court's non-public presentation proceeding can be distinguished and put to use.
Article 347 of the Civil Procedure Act provides for this distinction in its text. Paragraph (2) thereof provides: “(2) Where a motion for document production is deemed well-founded only as to a part of a document, the court shall order production of only that part.” Here the actor is the court that examines the motion for document production, the act is a production order, and the condition is the case in which the motion is deemed well-founded only as to a part of the document. Put in the same terms, partial production is a production order limited to the well-founded part, and the court cannot compel production of the remaining part, for which no ground exists, together with it.
Paragraph (4) of Article 347 of the Civil Procedure Act sets out a different stage. Its text reads: “(4) Where the court deems it necessary to determine whether a document falls under Article 344, it may order the person in possession of the document to present the document. In this case, the court shall not allow any other person to view the document.” Under this provision, a production order is the stage at which the well-founded part is put before the opposing party or in court, while non-public presentation is an inspection stage for the court alone to determine whether the duty of production applies. As to why the two must be distinguished, the author is emphatic that a document presented only to the court cannot be converted into one disclosed in full to the parties. That is, the court's in camera inspection and disclosure to the parties do not have the same effect.
The strongest of the counterarguments to this distinction is that partial production may distort context. It is also pointed out together that disclosure of a document may irreparably harm trade secrets and the rights of third parties. In fact, if only the well-founded part is severed and produced separately, the circumstances of its drafting or the relations of reference surrounding that part are omitted, so that it may be read differently from the meaning conveyed on its face, and the resulting loss is that the interest entitled to protection has already been infringed and only a distorted fragment remains. Even so, the author's answer does not waver. A document presented only to the court cannot be converted into one disclosed in full to the parties; the risk of contextual distortion must be addressed by narrowing the scope of disclosure, and cannot be resolved by disguising in camera inspection as disclosure.
Returning to the synthetic scene, what plaintiff A seeks is the approval documents held by defendant B, and defendant B refuses them in their entirety on the ground that they are internal documents. From this scene alone it is not determined which part is directly related to a matter to be proved, which part is necessary as documentary evidence, or whether there are circumstances warranting that the document be presented only to the court. If it is confirmed that the purpose of drafting and the circumstances of external use have changed, the assessment of the self-use document must be redone, but this does not change the conclusion of the scene. Accordingly, at the present stage, where the identification of the document or the possession relationship, the reason for the motion, and the ground for refusal are not fixed in the records, that determination remains undetermined.
What this section permits is not the conclusion that the existence of secrets alone permits every necessary part to be concealed together, but the handling of a production order limited to the well-founded part and the court's non-public presentation proceeding as distinguished from one another. What is not permitted is the judgment that converts a document presented only to the court into one disclosed in full to the parties.
4.2The Conditions That Block Relief
Plaintiff A applies for the approval documents held by defendant B, and defendant B refuses them in their entirety on the ground that they are internal documents. When secrecy and the need for proof overlap, must everything be given up? What are the conditions that block the way? This question targets not whether everything must be given up, but the conditions under which the document production order now sought is opened and closed.
Of the texts corresponding to this question, Article 347 (2) of the Civil Procedure Act reads as follows: “(2) Where a motion for document production is deemed well-founded only as to a part of a document, the court shall order production of only that part.” Here the actor is the court that examines the motion for document production, the act is an order of production, and the condition is the case in which the motion is deemed well-founded only as to a part of the document. In that case the court shall order production of only that part, and requiring the remaining parts to be produced together is not what this text provides.
This text defines partial production as a production order limited to the well-founded part. A dismissal of the motion in its entirety, or causing even the necessary parts to be given up together, on the sole ground that secrets are mixed in, is inconsistent with this text. Separately from this, Article 347 (4) of the Civil Procedure Act provides: “(4) Where the court deems it necessary to determine whether a document falls under Article 344, it may order the person in possession of the document to present the document. In this case, the court shall not allow any other person to view the document.” This is non-public presentation, presented only to the court, and it differs from a production order, which requires the document to be put before the parties, in both its object and its effect.
After distinguishing these two Procedures, the blocking conditions are set out. Where the duty of production is not recognized, or where there is no need for the taking of evidence, so that the motion for document production in question is not accepted, the remedial pathway is closed if even one of the statutory requirements is not satisfied. It deals with a production order for documents in the opposing party's possession, and the basis for the distinction is that the text places partial production and non-public presentation differently. Conversely, where the duty to produce documents, relevance, and the need for the taking of evidence are recognized and the limitations under statutory grounds for protection are satisfied, this pathway is open.
The strongest of the counterarguments targets the point that partial production may distort context. If a document is cut apart, the surrounding context and the motive for its drafting fall away, and from the remaining fragment alone it may be difficult to read precisely what the document says — a disadvantage. Yet a document presented only to the court cannot be converted into one disclosed in full to the parties. Since the text of non-public presentation prevents any other person from viewing it, elevating such presentation into inspection by the parties would itself collapse this distinction.
In the synthetic scene, the facts relevant to this question are that the document applied for is the approval document held by defendant B, and that defendant B refused it in its entirety on the ground that it is an internal document. Even where there has been a refusal in full, the court may issue a production order limited to the well-founded part, and if it is necessary to determine whether the document falls under Article 344, it may order non-public presentation. However, since the scene does not identify what the document applied for is or where it is held, that point remains undetermined. If it is confirmed that the purpose of drafting and the circumstances of external use have changed, the assessment of the self-use document must be redone even for a document bearing the same cover; this means only that the identification and the assessment may differ, and does not change the facts of the scene.
What this section permits is the judgment that, merely because secrets are mixed in, there is no need to conceal the necessary parts together, and the judgment that production of only the necessary parts and the court's non-public presentation proceeding can be distinguished and put to use. The conditions under which the remedial pathway is closed are that the duty of production is not recognized, or that there is no need for the taking of evidence, so that the motion for document production in question is not accepted.
4.3The Boundary That Remains When There Is No Data
The conclusion through the preceding section is carried over in a single sentence: where the duty of production is not recognized, or there is no need for the taking of evidence, the motion is not accepted. The question handled in this section is whether everything must be given up when secrecy and the need for proof overlap. Whether the motion is for full production or for partial production, and within what scope it may be allowed, are the points to be judged separately in this scene. In particular, whether circumstances remain that call for only a part of the document is the first point to examine.
Article 347 (2) of the Civil Procedure Act provides: “(2) Where a motion for document production is deemed well-founded only as to a part of a document, the court shall order production of only that part” (Civil Procedure Act Article 347). The actor in this text is the court that judges the grounds of the motion for document production, the act is a production order limited to the well-founded part, and the condition is the case in which the motion is deemed well-founded only as to a part of the document. Here partial production means a production order limited to the well-founded part. Neither the other paragraphs of the same Article nor any judgment as to the scope of the duty to produce documents is prescribed by this text.
This text does not prescribe only an either-or choice of accepting or rejecting the motion in its entirety. The court may judge the motion as a whole while limiting the scope of the order to the well-founded part, and that limitation is merely a device for narrowing the scope of the materials for judgment, not a deferral of the judgment itself. The two measures require different circumstances for the judgment. One is the question of how far to put forth; the other is the question whether the court must first view the document that has not been put forth. Accordingly, production of only the necessary parts and the court's non-public presentation proceeding can be distinguished and put to use.
It is difficult to say that this distinction can be maintained without qualification. The counterargument that partial production may distort context targets the point that, if only a part of a document is severed and produced, it may not be apparent for what purpose and in what relation the document was drafted, or what the other sentences in the same document presupposed. Such a loss leads to the risk of feeding the circumstances contained in the document into the judgment in a distorted form. Article 347 (4) of the Civil Procedure Act provides that, where the court deems it necessary to determine whether the document falls under Article 344, it may order the person in possession to present the document, and that in this case the court shall not allow any other person to view the document (Civil Procedure Act Article 347). The risk of distortion identified in the counterargument is addressed by preserving the boundary of this distinction.
Seen against this boundary, the facts in this scene narrow down to a few. The object for which plaintiff A has applied is the approval document held by defendant B, and defendant B refuses it in its entirety on the ground that it is an internal document. However, what that approval document is, and in what relationship it is held, have not been identified. Accordingly, this matter stands at a stage prior to the judgment whether the duty to produce documents is recognized, and it has not yet been determined as to which part production is to be ordered. An unidentified matter cannot be definitively declared to fall outside the duty to produce documents. Where what the document is or where it is held has not been identified, matters for which the materials for judgment are not identified are left undetermined, distinguished from impossibility. However, this is all that can be determined in this matter.
Accordingly, the attitude of distinguishing production limited to the necessary parts from the court's non-public presentation proceeding does not shift toward giving up even the parts necessary for the judgment merely because the grounds are mixed together, nor, conversely, toward disclosing those parts in full to the parties. Whether the court must first view the circumstances necessary for its judgment, and as to which part production may be ordered, must each satisfy their respective conditions separately, and it cannot be determined in this scene that those conditions have been met. Conversely, the mere fact that the document has not been identified cannot establish the existence or absence of the duty to produce documents. Matters that cannot be determined because the remaining materials have not been confirmed are not moved into the sphere of impossibility but remain as they are.
4.4The Records Needed for Determination
In a state of refusal in full, it examines how to divide the necessary parts from the parts to be concealed and what to leave in the records.
The text that answers this question is found in Article 347 of the Civil Procedure Act. The provision stating “(2) Where a motion for document production is deemed well-founded only as to a part of a document, the court shall order production of only that part” requires that the document subject to the production order and, within it, the well-founded part be divided and ordered separately. Here the actor is the court examining the motion for document production, the act is the order of production, and the condition is the case in which the motion is deemed well-founded only as to a part of the document.
The same Article provides for another inspection procedure as well. The text “(4) Where the court deems it necessary to determine whether a document falls under Article 344, it may order the person in possession of the document to present the document. In this case, the court shall not allow any other person to view the document” (Civil Procedure Act Article 347) distinguishes the stage of determining whether the duty of production applies by having the document presented to the court from the production stage, which is disclosed to the parties. The reason for this distinction is so that the production of the necessary part is not given up together out of concern for secrecy.
To support this distinction, the determination of the stage is made solely on the basis of the identified document, the possession relationship, the reason for the motion, the ground for refusal to produce, and the materials recorded in the DECISION. Circumstances not in the records are not filled in by inference. The counterargument targets the point that partial production may distort context: if only a fragment is produced, the context afforded by the document as a whole falls away and a wrong meaning may remain. Even without denying that loss, a document presented only to the court cannot be converted into one disclosed in full to the parties.
In the synthetic scene, those are the only facts corresponding to this question. The scene does not determine what the document is, what the reason for the motion is, what the ground for refusal to produce is, or what has been recorded in the DECISION. Therefore, which part is the well-founded part, and in what scope which ground of protection has been satisfied, cannot be judged from this scene alone. Even where the cover of a document is the same, if the purpose of drafting and the circumstances of external use change, the assessment of the self-use document is redone.
What this section permits is to judge the stage solely on the established records, and to live by the distinction between production of only the necessary parts and the non-public presentation proceeding. What it does not permit is to fill in the conclusion by inferring circumstances not in the records, or to convert a document presented only to the court into one disclosed in full to the parties. At the stage of a production order for documents in the opposing party's possession, where what the document is or where it is held has not been identified, the matter remains undetermined.
4.5Circumstances That Change the Decision
After accepting the premise that documents that have no direct relation to the matters to be proved, or that are unnecessary as documentary evidence, need not be accepted on a motion for document production, this part now turns, together with the question whether everything must be given up when confidentiality and the need for proof overlap, to examining what kind of change overturns the determination reached at the existing stage.
As to this question, Article 347 of the Civil Procedure Act provides: "(2) Where a motion for document production is found to have grounds only as to a part of a document, the court shall order production of only that part." (Civil Procedure Act, Article 347) This text provides that, when the scope in which the grounds of the motion are recognized extends only to a part of the document rather than to the document as a whole, the court shall order production of only that part. The object is a specific document held by the opposing party, the act is a production order limited to the part found to have grounds, and the condition is the case in which the motion is found to have grounds only as to a part of the document.
The text of paragraph (2) furnishes a basis for using production of only the necessary part as distinct from the court's non-public presentation examination. It provides: "(4) Where the court deems it necessary for the purpose of determining whether a document falls under Article 344, it may order the person having the document to present the document before the court. In such a case, the court shall not allow any other person to view the document." (Civil Procedure Act, Article 347) If paragraph (2) is the procedure ordering production of the part found to have grounds, paragraph (4) is the examination in which presentation is received non-publicly so that the court may determine whether the duty to produce applies. The reason the two stages must be distinguished is that, even where a document bears the same heading, if the purpose of its preparation and the circumstances of its external use change, the determination of a self-use document must be made afresh.
It is pointed out as a loss that if only a part of a document is cut out, the tenor of the quotation may be reversed or the author's intent may not be read from it, and that, in the face of a risk of disclosure that would irreparably harm trade secrets and third-party rights, even partial production is dangerous. Yet the settled answer does not waver. The risks of contextual distortion and infringement of rights that the counterargument points out are handled by shielding them through the non-public production examination under paragraph (4), and cannot be resolved by switching to full disclosure to the parties.
Defendant B's ground for refusal is the very fact of the document's internal preparation and, quite apart from which part of the requested document has grounds, is used as an argument for blocking production in full. Contrasting this circumstance with paragraph (2) reveals that the mere circumstance that confidentiality is mixed in cannot serve as a ground for refusing even the part found to have grounds. However, because the scene does not specify what the purpose of preparation and the circumstances of external use are, or which part has grounds, whether the document qualifies as a self-use document and the scope of the part remain undetermined.
The conclusion this section permits is that one must not give up even the necessary part merely because confidentiality is mixed in, and that a production order limited to the part found to have grounds and the court's non-public production examination are to be distinguished and operated as such. The conclusions it does not permit are maintaining the determination reached at the existing stage merely because the document bears the same heading, and converting a document produced only to the court into one fully disclosed to the parties. In the synthetic scene, no year, amount, start date, or judgment result is set, so they cannot be determined.
4.6The Strongest Counterargument and the Answer
In this scene, the questions remaining are how the scope of production shall be determined, and how to answer the concern that partial production may distort context. The earlier standard, that documents having no direct relation to the matters to be proved, or unnecessary as documentary evidence, need not be accepted on a motion for document production, is kept here as a premise without change. If one distinguishes the stages of the determination the court makes on each document, no reason appears for shielding the entire necessary part on the single circumstance that confidentiality is mixed in.
The first text answering this question is Article 347(2) of the Civil Procedure Act. That text provides: "(2) Where a motion for document production is found to have grounds only as to a part of a document, the court shall order production of only that part" (Civil Procedure Act, Article 347). The subject this provision addresses is the court examining a motion for document production; the act is an order of production; and the condition is the case in which the motion is found to have grounds only as to a part of the document. As a result, the court orders production not of the whole document but only of that part in which the grounds are recognized. Here, 'partial production' means a production order limited in this way to the part found to have grounds.
Paragraph (4) of the same article is the standard indicating a stage different from the foregoing determination. Paragraph (4) provides: "(4) Where the court deems it necessary for the purpose of determining whether a document falls under Article 344, it may order the person having the document to produce the document before the court. In such a case, the court shall not allow any other person to view the document" (Civil Procedure Act, Article 347). If paragraph (2) determines the scope of ordering production of the part found to have grounds, paragraph (4) prescribes the manner of an examination whereby, at the point of determining whether the document falls under Article 344, the document is produced only to the court and is not viewed by others. The reason these two stages must be distinguished is that production of only the necessary part and the court's non-public production examination can be kept as distinct means, each to be used in accordance with its own conditions. Under this distinction, a document produced only to the court cannot be changed into one fully disclosed to the parties.
The loss is that if only a part of a document is produced, the purpose of its preparation or the surrounding context falls away, and the meaning carried by the remaining fragment may be read differently from reality. The concern that document disclosure may irreparably harm trade secrets and third-party rights operates in the same direction. Such inconvenience and values do not disappear. But the result that concern points toward is not a direction demanding full disclosure in place of partial production, but a direction that provides protection by limiting the scope of disclosure or by an examination in which production is made only to the court. The reason the text provides for ordering production of only a part and for not allowing others to view the document lies here, and the author's conclusion is that a document produced only to the court cannot be changed into one fully disclosed to the parties.
The facts confirmed in the synthetic scene are limited to the point that Plaintiff A applied for the approval document held by Defendant B, and that Defendant B refused production in full on the ground that it is an internal document. This fact alone does not determine the content of the approval document, its purpose of preparation, the circumstances of its external use, or which part is the part found to have grounds. The specified document, the possession relationship, the reason for the application, the ground for refusal of production, and the decision are set as the items to be recorded. Where the document is not specified as to what it is or where it is held, the determination cannot be fixed. If it is confirmed that the purpose of preparation and the circumstances of external use change, the determination of a self-use document must be made afresh even for a document bearing the same heading; thus, if the conditions change, the determination also changes. Accordingly, matters that cannot be determined from the scene remain undetermined.
The conclusion this section permits is that a production order limited to the part found to have grounds and the court's non-public production examination can be used in distinction from each other, and that a document produced only to the court cannot be changed into one fully disclosed to the parties. The fact that partial production holds the potential to distort context cannot overturn this conclusion; it only shows the need for the work of setting the scope of disclosure and arranging safeguards. The conclusions this section does not permit are concealing all necessary parts together merely because confidentiality is mixed in, and expanding the court's non-public production into full disclosure to the parties.
4.7The Link to the Application and the Dispositive Part
The preceding section received the conclusion that a document produced only to the court cannot be changed into one fully disclosed to the parties. Now, in the scene where Plaintiff A applies for the approval document held by Defendant B and Defendant B refuses production in full on the ground that it is an internal document, how is it to be handled if the part needed for proof and the part to be concealed are mixed together in one document? This question divides whether the mere fact of confidentiality can push out the need for proof entirely, or whether the two values can be adjusted each in its own place.
As to this question, the Civil Procedure Act makes clear that production may be ordered only as to the part found to have grounds, and not as to the whole of the requested document. Article 347(2) provides: "Where a motion for document production is found to have grounds only as to a part of a document, the court shall order production of only that part" (Civil Procedure Act, Article 347). This text means that the scope of the duty to produce may be determined not by the unit of the document but by the unit of the part of the application found to have grounds. The subject deciding here is the court, the act decided upon is a production order directed to the person having the document, and the condition is the case in which the motion is found to have grounds only as to a part of the document.
Connecting this basis with the conclusion of this section reveals that partial production and non-public production examination are devices belonging to different stages. Partial production is a production order limited to the part found to have grounds; it is a question of setting the scope of what content is disclosed to the opposing party. By contrast, the court's non-public production examination is, as prescribed by Article 347(4), a procedure in which the court orders production of the document in order to determine whether the document falls under Article 344, and does not allow others to view that document; it is a question of restricting the persons to whom disclosure is made. The reason the two must be distinguished is that the former divides the quantity of content to be produced, whereas the latter narrows the range of persons who may view it. If the two devices are collapsed into one, the result is either that everything, including the necessary part, is given up or, conversely, that a document produced non-publicly is at once disclosed to the parties.
The strongest counterargument is aimed at the point that partial production may distort context. If only a fragment of a document is severed, the purpose of its preparation or the surrounding context in which that fragment is placed is lost, and the text on its face may be read differently from the original. Moreover, since document disclosure may irreparably harm trade secrets and third-party rights, there also lies behind it the concern that the fragmentation caused by partial production itself obstructs accurate determination. Yet acknowledging this loss and inconvenience does not permit changing a document produced only to the court into one fully disclosed to the parties. The risk of distortion the counterargument points out is a matter to be handled by care in selecting the part, and does not furnish a ground for broadening the scope of non-public production.
What is actually to be distinguished in this scene is whether, in the situation where Defendant B refuses production in full on the ground that it is an internal document, the court can separately identify the part of the application that has grounds. The foregoing conditions lie in that Plaintiff A's application contains the specified document, its possession relationship, and the reason for the application, and that Defendant B's ground for refusal is that it is an internal document. What can be determined here is only whether the text applies, namely that where the motion is found to have grounds only as to a part of the document, production of only that part may be ordered. On the actual record, what parts have grounds and what parts are confidential, and what result followed after production was refused, remain undetermined for want of materials. That, even for a document bearing the same heading, the determination of a self-use document must be made afresh if the purpose of preparation and the circumstances of external use change, is only a contrast that alters the conditions, not a fact that has already occurred in this scene.
What this section permits is using production of only the necessary part and the court's non-public production examination together, each distinguished from the other; what it does not permit is treating a document produced only to the court as one fully disclosed to the parties. One need not give up even the parts necessary for proof merely because confidentiality exists, nor, conversely, does a document protected by a non-public examination thereby open to the parties. Partial production is a production order limited to the part found to have grounds, and this definition is the starting point that guards the boundary between the two devices.
4.8The Scope This Section Undertakes
At the preceding stage, the premise was confirmed that documents having no direct relation to the matters to be proved, or unnecessary as documentary evidence, need not be accepted on a motion for document production; what must now be handled is a scope determined so as not to overlap with the questions left earlier. Under the motive that there is no need to conceal all necessary parts together merely because confidentiality is mixed in, the scope this section handles is set to the question whether, when confidentiality and the need for proof overlap, everything must be given up. The question here is what the court can do when it orders production of a key document held by the opposing party, and, concretely, it asks the path leading to this section's conclusion that the two means can be distinguished and used.
The texts answering this question lie in Article 347 of the Civil Procedure Act in two forms. This text, as to the act of a motion for document production, speaks of the court's determination setting the scope of production by reference to the scope in which the grounds of the application are recognized. This text, as to the subject of the person having the document, orders the act of production for the court's determination, and at the same time sets the condition that such production is limited so that others cannot view it.
On the basis of these two texts, the conclusion of this section is that production of only the necessary part and the court's non-public production examination can be distinguished and used. This distinction lies within the scope this section handles and does not overlap with the questions left earlier. Partial production means that, where the motion is found to have grounds only as to a part of the document, only that part is made the object of the production order; non-public production examination means that the court has the document produced for the purpose of determining whether it falls under Article 344, while at the same time preventing others from viewing it. The author's assessment is that, when confidentiality and the need for proof overlap, there is no need to give up either one entirely, and that these two stages can be used separately. Adding any new requirement or exception here would amount to changing the conclusion of this section.
The most persuasive counterargument is aimed at the point that partial production may distort context. If only a part of a document is severed and produced, the purpose of preparation in which that part was placed, or the meaning of neighboring wording, is not conveyed along with it, with the loss that the party reading the materials may receive an impression different from the meaning of the document as a whole. Yet the foregoing answer is that a document produced only to the court cannot be changed into one fully disclosed to the parties. Even without erasing the possibility of distortion and harm the counterargument points out, this section does not permit returning to the parties, as open to them, the scope that the court received non-publicly and judged upon.
The facts that can be confirmed in the synthetic scene are limited to the range that Plaintiff A applies for the approval document held by Defendant B, and that Defendant B refuses production in full on the ground that it is an internal document. In this scene, Defendant B's ground for refusal is that it is an internal document, and the object of the application is the specific document that is the approval document. Contrasting this fact with the foregoing conditions, a production order operates where the duty to produce the document, relevance, and the need for taking evidence are recognized and the limitations arising from statutory grounds for protection are satisfied, and is blocked where the duty to produce is not recognized or the need for taking evidence is absent and the relevant motion for document production is not accepted. Where the document is not specified as to what it is or where it is held, whether it operates cannot be confirmed. The contrast that, even for a document bearing the same heading, the determination of a self-use document must be made afresh if the purpose of preparation and the circumstances of external use change, is not a fact fixed by this scene.
The conclusion this section permits is that partial production carries the meaning of a production order limited to the part found to have grounds, and that production of only the necessary part and the court's non-public presentation examination can be distinguished and used. Beyond this distinction, changing a document produced only to the court into one fully disclosed to the parties is not permitted. What remains undetermined is the content and the place of holding of the document not specified within the scene, and the year, amount, and start date that have not been fixed; nor can the mere fact that the materials are insufficient be taken to mean that the legal route of a production order is closed.
4.9Application of the Text of the Provisions and the Holdings of Precedents
The issue in this scene is whether the intermingling of secrets constitutes grounds for refusing the production request in its entirety, or whether it is instead a problem remaining after the necessary portion has been identified. It addresses only the range of the wording that may be used as the basis for adjudicating a production order for the opposing party's documents.
Paragraph (2) of Article 347 of the Civil Procedure Act provides: "Where a motion for document production is found to have grounds only with respect to a part of a document, the court shall order production of only that part." This wording addresses the document holder who is the opponent of the production request and the object of the production order. The wording carries the meaning that only that part is to be ordered for production in the case where the request is found to have grounds only as to a part, and not the whole, of the document. Only the wording of paragraph (2) of this Article, not its other paragraphs, serves as the basis of decision.
The reason the wording of paragraph (2) is distinct from the wording of paragraph (4) of Article 347 of the Civil Procedure Act is that the stages of the two Procedures differ. Paragraph (4) provides: "Where the court deems it necessary for the purpose of determining whether a document falls under Article 344, it may order the person in possession of the document to present it." Here the party required to make the presentation is the person in possession of the document, and the party receiving it is the court. In that case, it is separately provided that the court shall not permit any other person to view the document; accordingly, production and presentation for inspection are not the same procedure.
A counterargument is raised to the effect that partial production may distort the context. Together there are raised the harm that, if only a part of a document is produced, the explanations before and after it are lost and an incorrect meaning may be conveyed, and the inconvenience that, if trade secrets and the rights of third parties are exposed externally, damage that is difficult to redress may ensue. This counterargument points out that disclosure of a document may cause irreparable harm, and give concrete form to the resistance to a production order for the opposing party's documents. Even so, a document presented to the court alone cannot be converted into one fully disclosed to the parties. Even recognizing the limits of partial production, the nonpublic presentation under paragraph (4) does not thereby become production.
The only fact confirmed in this scene is that Defendant B refused the production of the approval documents in their entirety on the ground that they are internal documents. Contrasting this fact with the wording of paragraph (2), it remains undetermined whether the foregoing condition is satisfied — that where the request is found to have grounds only with respect to a part of a document, only that part may be ordered to be produced. Because it has not been specified what among the approval documents in Defendant B's possession constitutes the portion that has grounds, nor what falls within the secrets, the determination cannot be fixed. This scene shows only the distinction between partial production and nonpublic presentation.
The conclusion this section permits is that, as the basis for adjudicating a production order for the opposing party's documents, only the wording of paragraphs (2) and (4) of Article 347 is used, without extending it to the reasons for the judgment or to other paragraphs. Partial production means a production order limited to the portion that has grounds, and the court's nonpublic presentation examination remains at a stage separate from production. What is not permitted is the treatment of mixing these two Procedures and converting a document presented to the court alone into one fully disclosed to the parties.
4.10Fine Distinctions Within the Stage
In this scene, what are the parts to be separately adjudicated when the court issues a production order? Within a production order for the opposing party's documents, several stages of determination follow one another, but this section examines only the conditions for drawing fine distinctions within those stages. The heart of the question is to divide the scope of adjudication according to the conditions already stated above, without adding new stages.
There are two phrases in the statutory wording corresponding to this question. First, Article 347 of the Civil Procedure Act provides: "②Where a motion for document production is found to have grounds only with respect to a part of a document, the court shall order production of only that part." This wording means that, after the court determines the scope of the grounds with respect to a motion for document production, where those grounds extend only to a part and not the whole of the document, the scope of production is limited to that part. It provides: "④Where the court deems it necessary for the purpose of determining whether a document falls under Article 344, it may order the person in possession of the document to produce it for inspection. In this case, the court shall not permit other persons to view the document." Paragraph (2) is an order that divides the scope of production, while paragraph (4) is a presentation for the court's determination of the type to which the document belongs, and that presentation is made on the condition that other persons are not permitted to view it.
These two phrases point to different stages of determination even within the same procedure, and are therefore read with a distinction. The partial production spoken of in paragraph (2) is a production order limited to the portion that has grounds, and where the court finds that a motion for document production has grounds only with respect to a part of a document, it shall order production of only that part. The presentation spoken of in paragraph (4) is a procedure by which the court directly inspects the document to determine whether it falls under Article 344, and in that case the court does not permit other persons to view the document. Accordingly, production of only the necessary portion and the court's nonpublic presentation examination are each bound by different conditions within the same stage. The two do not mean disclosure in the same direction, and they differ as to which of them opens which range. Where the duty of document production, relevance, and the necessity of evidence examination are found, and the limits arising from statutory grounds for protection are satisfied, the order operates; where the duty of production is not found, or the necessity of evidence examination is lacking so that the motion for document production is not accepted, it does not operate.
Nevertheless, the counterargument that partial production may distort the context remains as it stands. If only a part of a document is excised and produced, the purpose for which it was drafted and the circumstances before and after it are not revealed together, and the loss targeted by the counterargument is that the fragment used in the determination may give an impression different from the whole. While conceding that such inconvenience may in fact arise, the range of the answer to it is fixed. Because, even where the court judges through presentation whether the document falls under Article 344, a condition attaches that other persons shall not be permitted to view the document, this framework of nonpublic treatment cannot be converted into disclosure to all parties.
Setting this determination against the synthetic scene, it is confirmed that Plaintiff A moved for production of the approval documents possessed by Defendant B, and that Defendant B refused their production in their entirety on the ground that they are internal documents. From this scene alone, the specified document, the possession relationship, the reason for the application, the grounds for refusal of production, and the contents recording the decision are not fixed, and it has not been specified what the document is or where it is held. Even if the document cover is the same, if it is confirmed that the purpose of drafting and the circumstances of external use have changed, the determination as to self-use document is made anew; but the fact that such a determination was rendered in this scene is not confirmed.
Where the duty of production, relevance, and the necessity of evidence examination are found, and the limits arising from statutory grounds for protection are satisfied, a production order limited to the portion that has grounds may stand; and even where the court receives the document by presentation to determine whether it falls under Article 344, the examination proceeds only within the framework that other persons shall not view it. Where the duty of production is not found, or the necessity of evidence examination is lacking so that the motion for document production is not accepted, the order does not operate. However, what shall be recognized as true where an order is refused is a matter to be determined separately, and a determination converting a document presented to the court alone into one disclosed to the parties is likewise not included here.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
Under that premise, the question this stage addresses is how to distinguish the taking effect, the blocking, and the undetermined state of a production order for the opposing party's documents. Attention must be paid to the fact that the mode of refusal is total. Where the nature of the requested documents is concealed wholesale, it diverges whether only the necessary portion remains, or whether they remain wholly unspecified. The starting point of this question is not to lump the three cases into a single conclusion.
The statutory provision corresponding to this question separately prescribes the stages of determination of a motion for document production. Here the actor is the court, the act is the order of production, and the condition is the case where the application is found to have grounds only with respect to a part of the document. As a result, an intermediate route of partial production opens between total refusal and total allowance. This wording alone does not determine what that part is, or what range is to be produced.
Next, paragraph (4) of Article 347 of the Civil Procedure Act provides that the court may order the person in possession of a document to present it for the purpose of determination, and that in such case other persons shall not be permitted to view it. A production order and a nonpublic presentation are procedural means that differ in their purpose and their scope of disclosure. The partial production of paragraph (2) is a production order limited to the portion that has grounds, while the presentation of paragraph (4) is a nonpublic examination for determining whether the document falls under Article 344. Only by distinguishing the two means can the basis of determination be preserved even where grounds exist but disclosure must not be made. This is the reason the distinction does not merge partial production and nonpublic presentation into one.
What, then, of the risk that partial production may cut and distort the context? The risk is in fact a weighty one. If only the necessary portion is left, the purpose of drafting and the reference context surrounding that portion are lost, and it may be read in a different meaning. Even where a duty of production exists, the document is not fully disclosed, and the interest in disclosure and the interest in protection are considered together. The confidentiality of a nonpublic presentation must not be treated as equivalent to the full disclosure of the document to the parties. The disadvantage raised by the counterargument remains as the possibility of partial loss of context, but on account of that disadvantage neither production of the necessary portion nor the nonpublic examination itself is abandoned.
Placing this distinction in this scene, Defendant B's ground of refusal that they are internal documents does not immediately justify total refusal. Where the duty of document production, relevance, and the necessity of evidence examination are found, and the limits arising from statutory grounds for protection are satisfied, what remains is the method of producing only the portion that has grounds, or of presenting it to the court alone. Conversely, where the duty of production is not found, or the necessity of evidence examination is lacking so that the motion for document production is not accepted, the application is blocked. From the scene alone, however, it has not been specified what those approval documents are, or where they are held. Unless that fact is confirmed, the range of the undetermined remains. The condition that, even where the cover is the same, the determination as to self-use document is made anew if the purpose of drafting and the circumstances of external use have changed is not a confirmed fact but a criterion of examination.
The conclusion this section permits is therefore clear. Where the duty of production, relevance, and the necessity of evidence examination are found, and the limits of statutory grounds for protection are satisfied, production of only the necessary portion or the court's nonpublic presentation is available. Conversely, where the duty of production is not found, or the necessity of evidence examination is lacking so that the application is not accepted, that production is blocked. Where, however, it has not been specified what the document is or where it is held, the matter remains undetermined. Beyond this, this section does not permit converting a document presented to the court alone into one fully disclosed to the parties.
4.12Conclusion Carried Over to the Next Section
Where the duty of document production, relevance, and the necessity of evidence examination are found, and the limits arising from statutory grounds for protection are satisfied, it operates; where the duty of production is not found, or the necessity of evidence examination is lacking so that the motion for document production is not accepted, it is blocked; and where it has not been specified what the document is or where it is held, it remains undetermined. Even after these prior-stage adjudications, in the scene where Plaintiff A applies for the approval documents held by Defendant B and Defendant B refuses them in their entirety on the ground that they are internal documents, what remains is whether one must also relinquish the portion needed for proof merely because secrets exist. Before answering this question, it must be made clear that production of only the necessary portion and the court's nonpublic presentation examination can be used with a distinction between them.
The first axis of this distinction is partial production, and partial production means a production order limited to the portion that has grounds. Paragraph (2) of Article 347 of the Civil Procedure Act provides: "②Where a motion for document production is found to have grounds only with respect to a part of a document, the court shall order production of only that part" (Article 347 of the Civil Procedure Act). On the premise of the case where grounds are found not as to the application in its entirety but only as to a part of the document, this wording indicates that the court shall order production of only that part. Here the actor is the court that issues the order, the object is the portion to be produced by the person in possession of the document, and the condition is the case where the motion for document production is found to have grounds only as to a part.
Why must the two axes move together? Within the same provision, an order of production and an order of presentation diverge in purpose and in scope of disclosure. Whereas production is incorporated into the records of the lawsuit and comes to be seen by the opposing party, presentation remains an examination for the court to determine whether the document falls under Article 344, maintaining a nonpublic state in which other persons shall not view it. Accordingly, if partial production can narrow the range needed for proof, then at the stage of determining whether to order production in full, the nonpublic presentation examination can be set as a separate channel. As a device that divides the range and a device that restricts the parties to whom disclosure is made, the two are not substitutes for one another.
If only one paragraph of a document is excised, the conditions before and after it and the circumstances of the approval are lost, leaving room for it in fact to be read in a different meaning. The apprehension that opening to the plaintiff only the necessary portion may rather obstruct accurate proof overlaps with the concern that, in documents involving trade secrets and the rights of third parties, damage to context may lead to irreparable loss. Yet the conclusion cannot be changed on account of such loss, for a document presented to the court alone cannot be converted into one fully disclosed to the parties. The disadvantage of contextual distortion pointed out by the counterargument remains, but it cannot be resolved by expanding the scope of disclosure of the nonpublic presentation examination to full disclosure to the parties.
Returning to the synthetic scene, Plaintiff A applies for the approval documents held by Defendant B, and Defendant B refuses their production in their entirety on the ground that they are internal documents. All that can be confirmed in this scene is that the document applied for has been specified, that the possession relationship rests with Defendant B, and that the ground for refusal of production is that they are internal documents. Whether the duty of production, relevance, and the necessity of evidence examination are found, and whether the limits arising from statutory grounds for protection are satisfied, as well as the range of the portion that has grounds, are not fixed from this scene alone. Whether a nonpublic presentation examination is necessary also cannot be determined, and the matter therefore remains undetermined. What is confirmed, however, is that if Defendant B's total refusal was made without considering the alternatives of partial production or a nonpublic presentation examination, room remains for it to amount to a blanket refusal on the sole ground of secrecy.
What this section permits is not the conclusion that one must also relinquish the portion needed for proof merely because secrets exist, but the determination that an order for production of only the necessary portion and the court's nonpublic presentation examination can be used with a distinction between them. What is not permitted is treating a document presented to the court alone as one fully disclosed to the parties, and this amounts to an act that crosses the boundary. Even where partial production and a nonpublic presentation examination are considered together, if the duty of document production, relevance, and the necessity of evidence examination are not found so that the motion for document production is not accepted, the application is blocked; and if it has not been specified what the document is or where it is held, the matter remains undetermined. In the records of adjudication there must remain the specified document, the possession relationship, the reason for the application, the grounds for refusal of production, and the decision. What may be recognized as true where an order is refused?