Unlawful evidence in civil litigation may (often) just be allowed

It is often said that illegally obtained evidence may not be used in a lawsuit. However, this is not true. In criminal law, this is often indeed the case, but in civil court you may, in principle, use anything as evidence. Even if the evidence is illegally obtained. Nevertheless, some caution is warranted. Trial lawyer Robert van Ewijk knows how courts deal with illegally obtained evidence. He also explains what you can do if the opposing party appeals.

Mailbox hacked and emails used as evidence in lawsuit

In a divorce case, one husband (the wife) gained access to the husband's mailbox. The emails subsequently captured were submitted in an ongoing lawsuit. The man felt the evidence was illegally obtained. He opposed their use as evidence in the proceedings. The North Holland District Court (ECLI:NL:RBNHO:2015:7802) did not go along with that. The court did find that the manner in which the evidence was obtained was a wrongful act yielded. But that did not mean that the evidence was then inadmissible. Indeed, the interest in finding the truth, outweighs the interest in excluding the evidence due to invasion of privacy. The court:

“Even if it is established that evidence was unlawfully obtained by the party relying on it, in view of the provisions of article 152 of the Code of Civil Procedure (Rv), the general rule does not apply that the court may disregard it. In principle, the general social interest that the truth comes to light in court, as well as the interest of the parties in being able to make their claims plausible in court, outweighs the interest of excluding evidence. Only if there are additional circumstances is exclusion of that evidence justified (HR 18 April 2014, ECLI:NL:HR:2014:942, and HR 11 July 2014, ECLI:NL:HR:2014:1632).”

Unlawfully obtained evidence may be used in lawsuit

Thus, even if the evidence is illegally obtained, it may simply be used in civil proceedings. The lawyer who submits the illegally obtained evidence for his client in proceedings is also not automatically acting in a disciplinary way. This was ruled by the Amsterdam Board of Discipline (ECLI:NL:TADRAMS:2019:251):

“5.3 Furthermore, even if the manner in which a piece of evidence is obtained could be criticized, this does not mean that a lawyer is guilty of disciplinary action by producing this evidence in civil proceedings. After all, if the other party objects to the production of a piece of evidence, it is up to the civil court to rule on its admissibility, taking into account all the relevant circumstances of the case, such as the seriousness of the infringement of the rights of the party opposing the production of the evidence caused by the manner in which the evidence was obtained, and the weight of the other party's interest in the production of the evidence, given the content of the evidence. Therefore, an attorney who brings into the proceedings a piece of evidence made available to him by his client will, except in special circumstances, generally not act in a disciplinary manner.”

Using improper evidence is not supposed to happen, but it is allowed

In other words, the lawyer may simply use the illegally obtained evidence per se in legal proceedings. In addition, the Discipline Board notes that it is up to the judge to rule on the admissibility of the evidence. The Council of Discipline does note somewhat lukewarmly that it was not neat of the lawyer to bring in the illegally obtained evidence:

“Although the introduction of a piece of evidence that may have been obtained in violation of the law is in principle unbecoming, the Board considers that the Respondent in this case did not act in a disciplinary manner (...)” 

What is allowed and what is not allowed with illegally obtained evidence?

This does not mean that just anything is allowed. In summary, the following applies:

• obtaining evidence unlawfully may constitute a tort: this leads to the fact that the person who obtained the evidence may be liable for damages to the person whose interests have been harmed;
• the illegal evidence may in principle be used in legal proceedings, if there are no additional circumstances, the judge will admit the evidence;
• using illegally obtained evidence is not neat, but it can (and in principle may) be so. A lawyer may also, in principle, simply use the evidence on behalf of his client.

Note: evidence illegally obtained is different from falsified evidence. If you use falsified evidence, you may well have a face penalty by the courts. Moreover, this may lead to revocation of judgment.

Lawyer procedural law consult in case of illegally obtained evidence

The procedural lawyer at Lexys Advocaten can help you if illegally obtained evidence is used against you. But also if you want to know whether you can use a piece of evidence in a procedure, the trial lawyer can assist you with advice. Go to contact at for more information.