GERMANY Law and Practice Contributed by: Rainer Wilke, Ingo Theusinger and Ralph Schilha, Noerr
Additionally, companies assess financial risks and potential reputational damage, which could occur in the event of negative publicity. 5.5 Involvement of Lawyers In-house teams play a crucial role in crisis management, ensuring compliance with laws and industry-specific regulations while mitigat- ing legal and reputational risks. They support developing crisis management policies and pro- cedures, and handle regulatory reporting, crisis communication oversight, contract disputes and potential litigation. Legal teams handle commu- nication with regulatory authorities and partici- pate in after-action reviews to assess the com- pany’s response, identify any legal weakness and improve risk management. The legal team’s structure depends on the com- pany’s size, the industry in which it operates and the specific nature of possible crises. Typically, it includes in-house counsel familiar with the company, compliance officers ensuring regula- tory adherence and regulatory experts knowl- edgeable about complex legal frameworks. The legal team collaborates closely with executives to align legal and business strategies. Many companies, especially in regulated sec- tors, engage external legal counsel for special- ised expertise. External legal counsel is selected based on: • expertise; • industry and regulatory experience; • a strong crisis management track record; • availability and responsiveness; and • the ability to communicate complex legal concepts and strategies. In complex cases, companies and their boards may even retain multiple law firms to cover dif-
ferent aspects of legal defence and reputation management. 5.6 Documentation and Evidence Preservation In Germany, companies are subject to retention obligations under commercial law. For exam- ple, the German Commercial Code ( Handelsge- setzbuch , or HGB) requires that consolidated financial statements, management reports and group management reports – as well as related work instructions – be retained for a period of ten years. Even if not required by German law, companies may consider implementing docu- ment holds as part of their due diligence, espe- cially if they operate internationally and may face foreign investigations. Document preservation should start early in a crisis, suspending deletion protocols to avoid losing relevant information. Close collaboration with the IT department is vital for identifying custodians and determining the preservation scope. Organisations must therefore establish and actively manage clear policies to ensure that all relevant information is properly captured, secured and retained to meet legal requirements. Methods for capturing and storing relevant doc- uments and evidence include: • document management systems; • action protocols if a crisis is identified; • data back-up solutions; and • e-discovery tools. These methods also help the company to ensure compliance with legal requirements for evidence preservation.
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