In an earlier post, we looked at the possibility of compelling German third party witnesses to testify. Parties to U.S. litigation can compel third party witnesses under the Hague Evidence Convention to appear in court and testify. However, in executing a letter of request, the German courts apply their domestic rules and procedures. In general, the judge will treat the taking of evidence not any different from hearing a witness in a domestic civil litigation – and this is very different from a common law approach. Continue reading
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.
Last week, I reported on the Federal Supreme Court’s judgment that denied claims of individual investors if a controlling shareholder fails to make a mandatory offer. Ulrich Wackerbarth, a corporate law professor and blogger* at the Corporate BLawG, has published a fundamental critique of the judgment: No rights of private action – basta! Continue reading
We have covered the Porsche hedge fund litigation here before. One of the challenges that the claimants face is to built their case of market manipulation, given the restrictions of German civil procedure. As Karin Mattusek, who covers the Porsche litigation for Bloomberg Law, put it: “Porsche Plaintiffs Seek $5 Billion With Limited Tools”. The claimants do not have access, through pre-trial discovery or disclosure, to documents and emails that record Porsche’s internal communication and decision making process, but still have the full burden of proof. Continue reading