Pre-trial Discovery of Documents under the Hague Evidence Convention – Germany’s Position Is Softening!

You read it here first – Germany’s position on the discovery of documents may be softening. My first post on the topic was triggered by a May 2013 decision of the Frankfurt Court of Appeals, setting aside a surprising decision by the Central Authority for the State of Hesse. It came with a question mark: Is Germany’s position softening? But now, the Federal Ministry of Justice (Bundesjustizministerium) is reconsidering Germany’s position.

Let’s briefly recap: In late 2012, the President of the Frankfurt Court of Appeals (Präsident des Oberlandesgerichts), acting in his capacity as the Central Authority, had granted a request from California for pre-trial discovery of documents, irrespective of Germany’s reservation pursuant Art. 23 of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters.

In my opinion, it was 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. Unfortunately, the matter was not appealed further to the Federal Supreme Court (Bundesgerichtshof), even though leave of appeal had been granted.

However, the Federal Ministry of Justice in April 2014 – somewhat out of the blue – came forward with a proposal to modify Germany’s position on discovery of documents and to allow it in certain circumstances: Under the new regime, a request would be entertained if the documents that are being thought are sufficiently specified, and if it is established that they are relevant to the outcome of the case. The Ministry has invited various interested parties, amongst them the German-American Lawyers Association (DAJV), to comment on its proposal.

The DAJV is organizing a workshop in Frankfurt to discuss the proposals on June 16, 2014 –  the day of Germany’s first match at the Football World Cup against Portugal, so we will see how that impacts attendance. The panelists will be

  • Professor Joachim Zekoll, Goethe University Frankfurt,
  • Thomas Kehren, Presiding Judge (Vorsitzender Richter), Distict Court (Landgericht) Frankfurt
  • Christina Cathey Schuetz, Clifford Chance, London
  • Michael Guntersdorfer, Senior Director/Corporate Legal Counsel (US Litigation), Infineon Technologies AG, Munich.

Here is a link to the DAJV Working Paper (in German) on the matter.

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