Inspection of documents is not an interim measure: choosing the right procedural route

Claiming inspection under the new law of evidence

In proceedings on the merits before the District Court of Oost-Brabant, buyers of shares applied by interlocutory application for the seller's entire records, as an interim measure for the duration of the proceedings. The court never reached the substance. The basis chosen cannot support a claim for inspection, not even under the law of evidence in force since 1 January 2025.

A claim for the company records founders on its legal basis

The dispute arose from a share transfer of 7 September 2023. In their statement of defence, and after amending their claim, the buyers applied for an interim measure. The seller was to hand over the entire records for the period from 2018 up to the share transfer within fourteen days, subject to a penalty payment. Those records covered both the financial administration and the administration kept for HACCP purposes.

The seller's first line of defence disposed of the whole application: an order to hand over documents cannot, by its nature, apply for the duration of the proceedings alone. That defence succeeded. In ECLI:NL:RBOBR:2025:5466 of 3 September 2025 the court held at the outset that Section 223 DCCP allows only for a measure capable of applying for the duration of the proceedings on the merits. Providing documents is definitive by its nature and reaches beyond that period. The application was dismissed without any assessment against the requirements for inspection, and the buyers were ordered to pay costs of €792.00.

That outcome rests on Supreme Court 13 July 2012, which held that an interlocutory claim for production of documents brought in pending proceedings is not an interim measure within the meaning of Section 337(1) DCCP. Three earlier judgments drew the conclusion that Section 223 DCCP cannot carry a claim for production (ECLI:NL:RBMNE:2014:6832, ECLI:NL:RBROT:2017:441 and ECLI:NL:RBOBR:2020:4089). On the court's reading, the new law of evidence has changed nothing on this point.

The same boundary applies to other evidentiary measures. In ECLI:NL:RBAMS:2025:5480 of 23 July 2025 a claimant in pending proceedings sought an expert investigation by way of an interim measure. That was the wrong route. An expert investigation is not a measure for the duration of the proceedings, and the jurisdiction of the provisional relief judge under Section 197(1) DCCP is expressly confined to requests for inspection, a copy or an extract. An expert investigation cannot be obtained through Section 223 DCCP either.

The question has yet to be settled. In ECLI:NL:RBLIM:2026:5166 of 3 June 2026 an application for an interim measure and a claim for inspection were before the court side by side. The District Court of Limburg assessed the first against the standard of Section 223 DCCP and the second against the requirements of Section 194 DCCP, dismissed both and left the point of principle undecided.

Choosing the wrong basis is not always fatal. In ECLI:NL:RBNHO:2022:7871 the court observed that what had been labelled an application for an interim measure was in reality an interlocutory claim for the production of documents, treated it as such and granted it in part.

Under the new law of evidence the stage of the proceedings dictates the route

Section 843a DCCP, on which the duty to produce documents (exhibitieplicht) was based until then, was repealed on 1 January 2025. The right of inspection now sits in Section 194 DCCP: a party to a legal relationship is entitled to inspection, a copy or an extract of information concerning that relationship, from whoever holds it, provided it has a sufficient interest. The holder may refuse where it has a right to refuse to give evidence or where compelling reasons militate against disclosure. If it refuses on any other ground, the stage of the proceedings determines which court is to deal with the request.

Stage of the proceedings	Procedural route	Assessment framework
No case pending, or pending but not yet entered on the court roll	petition for a preliminary evidentiary measure, Section 196 in conjunction with Section 197 DCCP	the grounds for refusal in Section 196(2) DCCP, with Section 204 DCCP applying the requirements of Sections 194 to 195a DCCP by analogy
Case pending and entered on the roll	interlocutory request to the court hearing the case, Section 195 DCCP, or against a third party Section 195a DCCP, summoning that third party and the opposing party	the requirements of Section 194 DCCP
Urgent cases	request or claim before the provisional relief judge, Section 197(1), final sentence, DCCP	the grounds for refusal in Section 196(2) DCCP, plus urgency
Measure for the duration of the proceedings	Section 223 DCCP offers no basis for inspection	does not arise

Where proceedings on the merits are already pending, the third row is contested. The next two sections address that.

The distinction between the first two rows was drawn sharply in ECLI:NL:RBDHA:2026:15763 of 13 May 2026. Where no case has yet been entered on the roll, the request runs through Section 196 DCCP. Where the case is pending, it runs through Section 195 DCCP before the court hearing it. The cut-off point is therefore the moment of entry on the roll. In ECLI:NL:RBAMS:2025:9671 of 18 December 2025 this produced the following boundary. Once first-instance proceedings have ended, a request may still be made to the district court, up to the moment the writ of summons on appeal is entered on the roll of the court of appeal.

That same cut-off point governs admissibility, while classification follows a standard of its own. In ECLI:NL:GHARL:2025:5194 of 25 August 2025 the Court of Appeal of Arnhem-Leeuwarden held that Section 196(1) DCCP lays down a condition of admissibility. Where the request is made while the case on the merits is already on the roll, it is inadmissible. The request none the less remains a preliminary evidentiary measure, even with proceedings on the merits pending. That classification determines which appeal regime applies.

District courts differ on preliminary relief alongside proceedings on the merits

That the route of preliminary relief proceedings (kort geding) survives is settled. The explanatory memorandum to the Act on the simplification and modernisation of the law of evidence (Parliamentary Papers II 2019/20, 35 498, no. 3) notes, in its commentary on Section 197, that the question raised in the consultation as to whether inspection may still be sought in preliminary relief proceedings is answered in the affirmative.

On that footing the District Court of Rotterdam granted a claim for inspection in preliminary relief proceedings in ECLI:NL:RBROT:2026:5444 of 2 April 2026. Urgency lay in two witness examinations already scheduled, for which the documents were needed. The same judgment carries a second point of note: the requirement under the old law that a claimant show it also holds a substantive claim has fallen away with the new right of inspection. The Court of Appeal of 's-Hertogenbosch took the same route as its starting point in ECLI:NL:GHSHE:2026:580 of 3 March 2026. Hankook's claim for inspection was dismissed all the same: the related claim against Creventic failed, and with it the urgency.

What applies where proceedings on the merits are already pending between the same parties is contested. Under the old law that question was settled. In Supreme Court 8 February 2013 it was held that a claim for production may also be brought in preliminary relief proceedings while proceedings on the merits are pending. The fact that those proceedings are pending may weigh in the assessment of urgency and calls for restraint on the part of the judge when assessing the substance. Under the new law two views stand opposed. The difference lies in the legal basis, and that basis determines whether the judge reaches the substance at all.

	The Amsterdam view	The Rotterdam view
Basis	Sections 194 and 195 DCCP, together with Section 254 DCCP, given the distinct character of the claim in preliminary relief proceedings	Section 196(2)(c) DCCP, the proper conduct of the proceedings
What the judge does	the claim is admissible, followed by a restrained assessment of urgency	the claim belongs in the proceedings on the merits, so there is no assessment of the substance
Support in the sources	the memorandum in reply, the amending memorandum, Supreme Court 8 February 2013	the concentration of evidence-gathering pursued by the Act, the expectation in the explanatory memorandum of fewer inspection claims in preliminary relief proceedings, and the practice of applying Section 196(2) DCCP in those proceedings as well
Consequence for the claimant	a ruling on the documents sought, even alongside pending proceedings on the merits	referral to the court hearing the merits, with the delay that entails

As far as is known, no court of appeal has confirmed or rejected either line.

The Amsterdam view: the claim in preliminary relief proceedings stands on its own

The provisional relief judge in Amsterdam continued the 2013 line under the new law in ECLI:NL:RBAMS:2025:2936 of 2 May 2025. Those preliminary relief proceedings concerned the preservation of data, pending a WAMCA collective action against Salesforce. Salesforce argued that a claim for inspection in preliminary relief proceedings is no longer available while the proceedings on the merits are pending. It relied on a reading defended in the literature, attributed in the judgment to Lock, a justice of the civil division of the Supreme Court. That reading is a systematic one: the preliminary relief variant sits in Section 197(1) DCCP, and therefore within the part dealing with preliminary evidentiary measures, for which Section 196(1) DCCP requires precisely that no case be pending.

The judge rejected that argument on three grounds. The statute offers no clear answer. The systematic reading disregards the distinct character of a claim for inspection in preliminary relief proceedings. And the legislative history shows that the existing practice is in fact preserved, and that the rules on preliminary relief proceedings and the general appeal regime apply to such a claim. The pending proceedings on the merits therefore did not stand in the way of admissibility. The order to preserve data and the claim for a list of customers were granted. The expert investigation sought in the same proceedings failed, because it would cut across the WAMCA action and detract from the case-management role of the court hearing the merits.

The first argument for this view is the legislative history. The memorandum in reply (Parliamentary Papers II 2021/22, 35 498, no. 6) states that a claim for inspection in preliminary relief proceedings stands apart from the special procedure in which the preliminary evidentiary measures have been consolidated. The rules on preliminary relief proceedings (Section 254 DCCP) and the general appeal regime apply to it. The amending memorandum (35 498, no. 7) describes the preliminary relief claim as an option that is preserved alongside the petition procedure. The explanatory memorandum adds that the rules of the law of evidence do not lend themselves to application in preliminary relief proceedings. A systematic argument points the same way. The bar on appeals in Section 200(2) DCCP does not apply to a claim for inspection in preliminary relief proceedings, which is hard to reconcile with the idea that such a claim falls wholly within the regime for preliminary evidentiary measures.

Against this view stands the place the provision occupies in the statute. The legislature put the preliminary relief route in the final sentence of Section 197(1) DCCP, in the middle of the part on preliminary evidentiary measures, and that sentence speaks of the same request as Section 196 DCCP. Practice reinforces the objection: judges in preliminary relief proceedings do take their assessment framework from Section 196(2) DCCP, as in ECLI:NL:RBGEL:2025:1971 of 12 March 2025 and in the Rotterdam judgment of 2 April 2026. A party that anchors the claim in that part of the statute for the conditions of grant can hardly place it outside that part for the proper conduct of proceedings. There is also friction with the strengthened case-management role: a party that asks the court hearing the merits for nothing yet starts preliminary relief proceedings takes the matter away from the judge dealing with it.

The Rotterdam view: inspection belongs before the court hearing the merits

A little over six months later the District Court of Rotterdam arrived at the opposite outcome on a different basis. ECLI:NL:RBROT:2025:14965 of 17 December 2025 concerned inspection of data held under a prejudgment attachment for the preservation of evidence. In the judge's view, it offends the proper conduct of the proceedings to bring a claim for inspection in separate preliminary relief proceedings where proceedings on the merits on substantially the same subject are already pending. Such a claim may then be brought only in those proceedings, which the court derived from Section 196(2)(c) DCCP and from the legislature's aim of concentrating evidence-gathering. For Bacardi, which was appealing against Excellent Drinks, the claim for inspection failed on that ground, with an order to pay costs of €15,000.00 under Section 1019h DCCP. For its co-claimant Polmos, which had no proceedings on the merits against the same party, the claim was assessed on the substance and dismissed for want of sufficient interest.

The argument for this view is that it serves the purpose of the Act. The regime is intended to concentrate evidence-gathering before the court hearing the dispute, and the explanatory memorandum even counts, in its section on administrative burden, on a reduction in the number of preliminary relief proceedings in which inspection is sought. Two judges addressing the same issue at the same time is precisely what the legislature sought to prevent, with duplicated argument, duplicated costs and the risk of conflicting decisions. That concern is heard beyond Rotterdam, as in the Amsterdam judgment of 4 March 2026 discussed below. The choice is also systematically consistent: judges in preliminary relief proceedings already take their assessment framework from Section 196(2) DCCP, and a court applying that standard can hardly leave subsection (c) out of it. Finally, the proper conduct of proceedings is a real limit even without that provision, and the claim could equally have failed as an abuse of procedural rights.

Three points tell against it. The parliamentary papers detach a claim for inspection in preliminary relief proceedings from the very provision against which Rotterdam assessed it. The bar on appeals does not apply to such a claim. And in 2013 the Supreme Court allowed the pendency of proceedings on the merits to weigh in the assessment of urgency and in the restraint expected of the judge. There is also a practical objection: a categorical limit also shuts out the cases in which evidence is at risk of disappearing. That was exactly the position in Amsterdam, where an order to preserve data was made pending the WAMCA action because there was a considerable risk that data would be deleted. Under the Rotterdam rule that claimant would have had to turn to the court hearing the merits, at the risk of the evidence having been deleted by then.

Rotterdam did not rest on that single ground. In the alternative, the court held that the claim for inspection was not so urgent that the outcome of an interlocutory claim in the pending appeal could not be awaited. That line of reasoning leads to the same outcome and does sit well with the parliamentary papers and with the 2013 judgment. The criticism therefore goes to the construction, while the outcome stands.

Where the difference becomes decisive

Where a claim is dismissed, the choice between the two views often makes no difference, because the claim also fails on urgency. A middle line does that work: the claim is admissible, but the threshold for granting it is high. In ECLI:NL:RBDHA:2025:22355 of 26 November 2025 the main proceedings were before the court of appeal. A request under Section 195 DCCP belongs in principle before that court, the judge held. Only where the urgency is such that its decision cannot be awaited is there room for preliminary relief proceedings. The fear that the data would be destroyed fell away as a ground once the State had guaranteed at the hearing that this would not happen while the proceedings were pending. The wish to have the documents before the statement of grounds of appeal did not suffice either, since an extension may be sought from the court of appeal.

The District Court of Amsterdam followed that approach in ECLI:NL:RBAMS:2026:3482 of 4 March 2026, in a dispute about warranties in a share purchase. A ruling on the substance would require the provisional relief judge to assess part of a dispute already before the court hearing the merits, and that cuts across those proceedings. The District Court of Rotterdam reached the same outcome in ECLI:NL:RBROT:2026:8782 of 17 July 2026. Ziggo's claim for inspection following an attachment for the preservation of evidence failed because no pressing circumstances had been shown, and the alleged limited shelf life of digital evidence had not been made concrete.

Where the urgency is concrete, claims are granted. In ECLI:NL:RBMNE:2025:6896 of 29 December 2025 the claimant relied on an appeal period expiring in one set of proceedings and a hearing already scheduled in another. The judge found urgency made out, granted inspection, declared the judgment enforceable notwithstanding appeal and attached a prohibition on further dissemination to address the confidentiality objections. In ECLI:NL:RBMNE:2026:1322 of 23 March 2026 preliminary relief proceedings were allowed after an interlocutory judgment on inspection had already been given in the proceedings on the merits. Three circumstances carried that ruling. The right granted in the interlocutory judgment did not concern the documents that had been sought. The preliminary relief proceedings were inextricably connected with the case on the merits. And the suspicion that a confidentiality obligation covering technical know-how had been breached gave rise to an interest that was urgent by its nature. The claim none the less failed on the requirement that the documents be sufficiently specified, after which the claimant was given the opportunity to narrow it.

That is where the difference becomes a litigation risk: the same claim, on the same facts, is assessed on the substance by one district court and referred to the court hearing the merits by another. Where an appeal period is expiring, a witness examination has been scheduled or evidence is at risk of being lost, one view has the provisional relief judge assess the claim, while the other refers the claimant to the court hearing the merits even then. For that scenario it is worth addressing both lines in the writ of summons.

The available appeal depends on the route

The route also determines what may be brought against the decision. Section 200 DCCP applies to preliminary evidentiary measures. An appeal lies against a decision on a request for inspection within four weeks. No appeal lies against a decision on a request for other preliminary evidentiary measures, unless the court rules otherwise. That bar is applied strictly. In ECLI:NL:GHDHA:2025:2158 of 21 October 2025 the Court of Appeal of The Hague declared the appellants inadmissible in their appeal against the refusal of a preliminary witness examination. The Court of Appeal of Amsterdam did the same in ECLI:NL:GHAMS:2026:949 of 9 April 2026, on a request to hear experts. In that court's view, a substantial interest or a special context provides no ground for setting the bar aside, nor does it lower the threshold for doing so.

For decisions given during pending proceedings or in preliminary relief proceedings under Section 195 DCCP, Section 200(1) DCCP does not apply and the ordinary periods for appeal and for appeal to the Supreme Court govern. That is set out in the opinion of the Advocate General in ECLI:NL:PHR:2025:996 of 12 September 2025. Taken together with the 2012 judgment, that means the following for an interlocutory decision in pending proceedings: it is an interim judgment, against which an appeal before the final judgment lies only with the court's leave.

The transitional position has now been settled. In ECLI:NL:HR:2026:201 of 6 February 2026 the Supreme Court found that a specific transitional provision is lacking, so that recourse must be had to the general principles of transitional civil law. Where a decision is given after 1 January 2025 on a request made before that date, the law as it stood before then continues to govern the availability of appeals and the periods for bringing them throughout the proceedings. The Court of Appeal of Arnhem-Leeuwarden applied this in ECLI:NL:GHARL:2026:1203 of 24 February 2026 and held the appellant admissible under the former period of three months.

A second attempt by another route runs into the closed system of legal remedies. In the Amsterdam case of 18 December 2025 a request for inspection was not taken up, because a virtually identical interlocutory claim had already been decided. In the judgment of The Hague of 13 May 2026 a subsequent request under Section 195 DCCP followed an earlier refusal of a request under Section 196 DCCP. That was treated as a disguised appeal and held to offend the proper conduct of the proceedings.

What does this mean for choosing the route?

What has to be established first is which court is to deal with the request. Where the case is on the roll, the interlocutory route of Section 195 DCCP applies, with Section 195a DCCP and the summons it prescribes where a third party holds the information. Where the case has not yet been entered, the route is a petition for a preliminary evidentiary measure, which brings with it that an appeal against that decision lies within four weeks.

Where inspection is sought in preliminary relief proceedings while proceedings on the merits are pending, two things are worth doing in the writ of summons, for as long as no court of appeal has ruled on the difference between the two views. Set out why concentrating the matter before the court hearing the merits will not do in this case, since that is where the Rotterdam line bites. And anchor the urgency in a verifiable date, such as an expiring period or a witness examination already scheduled. A party that also cites the legislative history in which the preliminary relief claim is treated as standing apart from the petition procedure gives the judge a foothold for assessing the claim on the substance in any event.

Section 223 DCCP has no place in this list, and no judgment adopting the opposite view has been found in the case law published since 1 January 2025. This remains district court case law, built on a judgment formally concerned with the appealability of an interlocutory decision on production. A party that pleads Sections 194 and 195 DCCP in the alternative keeps the substantive debate open even if the reliance on Section 223 DCCP fails.

Cited case law

Supreme Court

• ECLI:NL:HR:2012:BW3264, 13 July 2012: an interlocutory claim for production is not an interim measure within the meaning of Section 337(1) DCCP
• ECLI:NL:HR:2013:BY6111, 8 February 2013: a claim for production may also be brought in preliminary relief proceedings while proceedings on the merits are pending
• ECLI:NL:HR:2026:201, 6 February 2026: the law as it stood before 1 January 2025 continues to govern appeals throughout the proceedings

Advocate General's opinions

• ECLI:NL:PHR:2025:996, 12 September 2025: Section 200(1) DCCP does not apply to inspection sought in pending proceedings or in preliminary relief proceedings

Courts of appeal

• ECLI:NL:GHARL:2025:5194, 25 August 2025: Section 196(1) DCCP lays down a condition of admissibility, yet the classification as a preliminary evidentiary measure remains
• ECLI:NL:GHDHA:2025:2158, 21 October 2025: the bar on appeals in Section 200(2) DCCP leads to inadmissibility
• ECLI:NL:GHARL:2026:1203, 24 February 2026: request made before 1 January 2025, so the former three-month period applies
• ECLI:NL:GHSHE:2026:580, 3 March 2026: inspection may be sought in preliminary relief proceedings in urgent cases, but urgency fell away here
• ECLI:NL:GHAMS:2026:949, 9 April 2026: a substantial interest or special context is no ground for setting aside the bar on appeals

District courts

• ECLI:NL:RBMNE:2014:6832, 17 December 2014: an order to hand over documents is definitive by its nature
• ECLI:NL:RBROT:2017:441, 4 January 2017: inspection cannot be based on Section 223 DCCP, but can be on the production provision
• ECLI:NL:RBOBR:2020:4089, 26 August 2020: Section 223 DCCP is for holding measures, and production of documents also lacks the required connection
• ECLI:NL:RBNHO:2022:7871, 10 August 2022: what was labelled an interim measure was treated as an interlocutory claim for production
• ECLI:NL:RBGEL:2025:1971, 12 March 2025: preliminary relief proceedings via Section 197(1) DCCP, with the grounds for refusal in Section 196(2) DCCP
• ECLI:NL:RBAMS:2025:2936, 2 May 2025: pending proceedings on the merits do not bar admissibility of a claim for inspection in preliminary relief proceedings
• ECLI:NL:RBAMS:2025:5480, 23 July 2025: an expert investigation cannot be obtained through Section 223 DCCP in pending proceedings
• ECLI:NL:RBOBR:2025:5466, 3 September 2025: a claim for inspection cannot be based on Section 223 DCCP under the new law of evidence either
• ECLI:NL:RBDHA:2025:22355, 26 November 2025: the request belongs before the court hearing the merits, save in cases of particular urgency
• ECLI:NL:RBROT:2025:14965, 17 December 2025: separate preliminary relief proceedings offend the proper conduct of the proceedings where the case on the merits concerns the same subject
• ECLI:NL:RBAMS:2025:9671, 18 December 2025: a subsequent request for inspection runs into the closed system of legal remedies
• ECLI:NL:RBMNE:2025:6896, 29 December 2025: concrete urgency made out, inspection granted with a prohibition on further dissemination
• ECLI:NL:RBAMS:2026:3482, 4 March 2026: granting the claim would cut across the proceedings on the merits, so only in exceptional cases
• ECLI:NL:RBMNE:2026:1322, 23 March 2026: preliminary relief proceedings allowed given the inextricable connection, but the documents were insufficiently specified
• ECLI:NL:RBROT:2026:5444, 2 April 2026: inspection granted in preliminary relief proceedings, and the requirement of a substantive claim has fallen away
• ECLI:NL:RBDHA:2026:15763, 13 May 2026: Section 196 DCCP before and Section 195 DCCP after entry on the roll, and no disguised appeal
• ECLI:NL:RBLIM:2026:5166, 3 June 2026: Section 223 DCCP and Section 194 DCCP assessed separately, both dismissed, no fishing expedition
• ECLI:NL:RBROT:2026:8782, 17 July 2026: no pressing circumstances, and the shelf life of digital evidence was not made concrete

Juriaan de Vries — lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

See also

• The Nexperia case: ex parte intervention, inquiry proceedings and cassation, where a preliminary witness examination under Section 196 DCCP was postponed until the Enterprise Chamber's investigation report had been filed
• Inspection of documents: from Section 843a to Section 194 DCCP
• Preliminary relief proceedings
• Evidentiary attachment does not limit the right to inspection
• The former bookkeeper is holding on to the administration