Prospective management of evidence in structural collective litigation: an analysis from the perspective of the allocation of the burden of proof

Resumen

This article examines the rules governing the application of the fundamental procedural institute of the burden of proof within the framework of structural collective litigation, in light of the complexity of diffuse and far-reaching collective disputes, taking into account the insufficiency of the traditional theory of the static allocation of evidentiary burdens. Adopting a doctrinal-pragmatic method, the study proceeds from an understanding of structural collective proceedings as a differentiated procedural model, designed to address polycentric and multipolar conflicts. It then analyses evidentiary prospecting as a legitimate and necessary technique both for the reconstruction of past facts and for the monitoring of the implementation of restructuring plans. It is argued that evidentiary prospecting must not be conflated with so-called “fishing expeditions,” provided that it is properly delimited by the parties’ arguments and subjected to careful judicial scrutiny. Furthermore, the article defends the applicability of techniques for the flexibilization of the burden of proof—namely dynamic allocation, reversal, and procedural agreements—as essential instruments to ensure effective access to evidentiary justice in structural collective litigation. The conclusion reached is that the proper judicial delineation of the contours of the burden of proof constitutes a key element for the effectiveness of structural collective remedies, enabling an adequate and efficient resolution of complex collective disputes.