Access to Evidence in Private International Law

Abstract

This Article analyzes the interaction between the burden of proof and evidentiary
discovery rules. Both sets of rules can affect incentives for prospective injurers
to invest in evidence technology (i.e., ex ante investments that increase the
quantity and quality of evidence in case an accident occurs). This interaction
becomes acutely important in the private international law setting, where
jurisdictions are split on the question whether the burden of proof should be
treated as a substantive or procedural matter. When a tort occurs in Europe,
but the case is litigated in American courts, treating the burden of proof as
a procedural matter preserves the complementarity of incentives created by
the burden of proof and evidentiary rules. Conversely, treating the burden
of proof as a substantive matter creates a mismatch in incentives created by
the burden of proof and evidentiary rules.