GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
by stages. Such an action is divided into two phases: first, the court decides on the claim for disclosure of information, and second, on the request related to this information – eg, a pay- ment claim. Under certain narrow conditions, it is possible to allow legal assistance for requests from for- eign courts for pre-trial discovery of documents under the Hague Evidence Convention. Such requests can be executed if the documents to be produced are precisely described in detail, are of direct and clearly recognisable impor- tance 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. How- ever, a court may, in very limited circumstances, order a third party to provide a particular docu- ment in its possession. The third party may object to the court’s order on the grounds that the order imposes an unreasonable burden on it. A third party may also be subject to substantive or contractual claims for disclosure of informa- tion – eg, an insurer of a party. 5.3 Discovery in This Jurisdiction 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 usu- ally 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 knowl- edge of the facts. In complex cases a party can also consult a certified expert to clarify technical or commercial issues relevant to the case. Other sources of information are public regis- ters. Germany provides for multiple public reg- isters 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 public announce- ments in insolvency matters. In addition, any citi- zen 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 infor- mation. 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 testify does not allow the courts to draw conclusions. The attorney-client privilege also covers work products, 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 sub- missions are correct and true. If a (third) party is nevertheless ordered to disclose certain infor- mation, it may decline to disclose it for the fol- lowing reasons:
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