GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
opposing party is in possession of a certain relevant document. German substantive law or contractual agreements may also grant a party a legal claim against the oppos- ing party for disclosure of certain information that is not otherwise available. Such a claim may be asserted in court. A special form of such proceedings is the action by stages. Such an action is divided into two phases: first, the court decides on the claim for dis- closure of information, and second, on the request related to this information – eg, a payment claim. Under certain narrow conditions, it is possible to allow legal assistance for requests from foreign courts for pre-trial discovery of documents under the Hague Evidence Convention. Such requests can be exe- cuted if the documents to be produced are precisely described in detail, are of direct and clearly recognis- able importance for the respective proceedings and their outcome, and are in the possession of a party involved in the proceedings. Furthermore, the request must not violate fundamental principles of German law. 5.2 Discovery and Third Parties Third parties are not subject to discovery. However, a court may, in very limited circumstances, order a third party to provide a particular document in its posses- sion. The third party may object to the court’s order on the grounds that the order imposes an unreason- able burden on it. A third party may also be subject to substantive or contractual claims for disclosure of German law does not recognise a common law-style discovery. Under certain circumstances, however, a court may order a party to produce a document. 5.4 Alternatives to Discovery Mechanisms Before filing a statement of claim, a plaintiff usually must collect most of the relevant facts for its case. Generally, the preparation of a case starts with a review of all available documents and interviews with persons who have direct knowledge of the facts. In complex cases a party can also consult a certified information – eg, an insurer of a party. 5.3 Discovery in This Jurisdiction
expert to clarify technical or commercial issues rel- evant to the case. Other sources of information are public registers. Ger- many provides for multiple public registers that can be consulted on request – eg, the Commercial Register, the Debtor Register, the Register of Associations, the Land Register, the Register of Residents and the pub- lic announcements in insolvency matters. In addition, any citizen may by law require that information held by a public authority be disclosed. Such a request is only rejected if the public interest does not permit disclosure – eg, to protect secret information. 5.5 Legal Privilege German law recognises the concept of attorney-client privilege. Attorneys may not testify before authorities in relation to their mandates without the prior consent of their client. The fact that an attorney refuses to tes- tify does not allow the courts to draw conclusions. The attorney-client privilege also covers work prod- ucts, including attorneys’ files and correspondence between an attorney and their client. Disclosure of cli- ent information without consent is a criminal offence. In-house counsel admitted to the bar may also invoke legal privilege. 5.6 Rules Disallowing Disclosure of a Document In principle, neither party is obliged to disclose all available information provided that all submissions are correct and true. If a (third) party is nevertheless ordered to disclose certain information, it may decline to disclose it for the following reasons: • professional secrecy – eg, attorney-client, tax con- sultant, doctor privilege; • civil servant privilege; • family privilege; • subject matter privilege – eg, trade secrets; • the information is not available; or • the disclosure represents an unreasonable burden for the party. Since 1 April 2025, business secrets have been more comprehensively protected in German civil proceed- ings. Upon request, courts are able to classify busi- ness secrets as confidential, which means that Sec-
364 CHAMBERS.COM
Powered by FlippingBook