A recent Frankfurt case raises this issue: Germany has declared ”that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries”, in accordance with Art. 23 of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters. This notwithstanding, the President of the Frankfurt Court of Appeals (Präsident des Oberlandesgerichts), accepted a request for pre-trial discovery of documents from California.
In doing so, he was acting in his capacity as the Central Authority under the Hague Evidence Convention. The request was passed on to the Local Court (Amtsgericht) Bad Homburg for execution – so at first sight, Germany’s position has softened, at least in Frankfurt. The party concerned challenged the decisions made by the President, and the Frankfurt Court of Appeals (Oberlandesgericht) reviewed the decision. In its decision, it did not agree with the President and set the President’s order aside, so the answer is: Germany’s position has not softened – yet.
In my opinion, it is not so much the judgment of the Frankfurt Court of Appeals that is surprising. This was to be expected – it was rather the fact that the President as the Central Authority had accepted the letter of request in the first place, and defended the position during the judicial review proceedings.
Before we come to the arguments made by the President, however, we need to sort out how it is possible for the President of the Court of Appeals to decide one way and the Court of Appeals the other way. We had discussed this in the context of the Hague Service Convention before, and the same principles apply to the Hague Evidence Convention:
A decision by the Central Authority under the Hague Evidence Convention constitutes a Judicial Administrative Act (Justizverwaltungsakt). The Central Authority in our case was the President of the Court of Appeals (Oberlandesgericht) in Frankfurt, for Hessen as the German federal state concerned. He was acting in an administrative capacity, rather than in a judicial one. Judicial Administrative Acts constitute a separate class of actions taken within the court system. One can, by and large, characterize these acts as everything that is not a substantive decision of a judge in a pending litigation itself, be it procedural or otherwise.
Section 23 et seq. Introductory Act to the Courts Constitution Act (EGGVG) govern the judicial review of such Judicial Administrative Acts. A party who is requested to disclose documents in pre-trial discovery, or who is compelled to testify as a witness, can approach the Court of Appeals – acting in its judicial, not in its administrative capacity – and seek review of the decision to order disclosure of documents as per the request of the US litigant.
The President of the Frankfurt Court of Appeals had argued that Germany’s objection to Art. 23 Hague Evidence Convention must be interpreted narrowly, in the light of changes to the German Code of Civil Procedure (ZPO) that came into force in 2002. In that year, a limited duty for third parties to disclose documents in their possession was introduced in Sec. 142 ZPO. Furthermore, the German Act on the Implementation of the Hague Evidence Convention (Ausführungsgesetz; AusfG HBÜ) allows for the execution of letters of request, if and as far as fundamental principles of German procedural law do not require otherwise.
The Frankfurt Court of Appeals was not persuaded by its President’s arguments – for which, I must disclose, have some personal sympathy. It held that, even if the domestic procedural rules since 2002 allow for a limited power of the courts to order the production of documents by third parties, this does not change the assessment of common law style pre-trial discovery as a procedure which is fundamentally different from German law. In particular, the element of “fishing for evidence” (Ausforschung) remained imminent in any pre-trial discovery and hence, pre-trial discovery on the one hand, and an order based on Sec. 142 ZPO on the other hand are so fundamentally different that there is no reason to construe Germany’s objection narrowly in the light of Sec. 142 ZPO.
This assessment of the court is also not changed by Sec. 14 AusfG HBÜ. This provision only kicks in once a statutory instrument (Rechtsverordnung) has been issued by the Ministry of Justice. As the Ministry of Justice has not yet issued such an instrument, Germany’s objection stands unchanged. The Frankfurt Court of Appeals acknowledged that the issues before it were of a fundamental nature, and therefore granted leave of appeal (Zulassung der Rechtsbeschwerde) to the Federal Supreme Court (Bundesgerichtshof). However, it appears that the matter has not been pursued further.
So where does this leave foreign parties who are trying to pursue pre-trial discovery of documents in Germany? My personal take is as follows: If a request for discovery of documents in Germany is to be made, it is worth having another go at it – even more so if it is to be made to the President of the Frankfurt Court of Appeals. Ideally, the request would be narrowly worded and be as specific as possible as to the documents requested. I would then argue that the request were to be granted even under Sec. 142 ZPO, had it been made in a domestic context. And if it were to be granted in a domestic context, it cannot fall under the objection, as it is not a request for “pre-trial discovery of documents as known in common law countries”. It would be great to see a case being appealed to the Federal Supreme Court, and the Frankfurt decision should help in persuading other courts grant leave of appeal, even if they do not grant the request. On a political level, the Ministry of Justice should revisit its power to issue the statutory instrument that Sec. 14 AusfG HBÜ provides for. At least, such an instrument should avoid a situation where the foreign applicant is granted even less disclosure than a domestic party would have been granted under Sec. 142 ZPO.
 Sec. 14 AusfG HBÜ reads: (1) Letters of Request that relate to proceedings defined in Article 23 of the Convention will not be executed. Rechtshilfeersuchen, die ein Verfahren nach Artikel 23 des Übereinkommens zum Gegenstand haben, werden nicht erledigt. (2) This notwithstanding, such Letters of Request may be executed, if fundamental principles of German procedural law do not require otherwise, once the preconditions and the applicable procedure have been defined in detail in a statutory instrument; such a statutory instrument may be issued by the Ministry of Justice with the consent of the Upper House. Jedoch können, soweit die tragenden Grundsätze des deutschen Verfahrensrechts nicht entgegenstehen, solche Ersuchen unter Berücksichtigung der schutzwürdigen Interessen der Betroffenen erledigt werden, nachdem die Voraussetzungen der Erledigung und das anzuwendende Verfahren durch Rechtsverordnung näher geregelt sind, die der Bundesminister der Justiz mit Zustimmung des Bundesrates erlassen kann.“