Case of the Week: Federal Constitutional Court Issues Interim Order in Jones Day/Volkswagen Case

BundesverfassungsgerichtThis Case of the Week is hot off the press – the case originally scheduled for today will have to wait: Today, the Federal Constitutional Court (Bundesverfassungsgericht) announced that it had issued a rare interim order in support of a constitutional challenge (Verfassungsbeschwerde) of the law firm Jones Day against a court order that allowed the seizure of potentially privileged documents from Jones Day’s Munich Offices.

Jones Day has acted as counsel to Volkswagen in the diesel emissions matter since September 2015. It carried out an internal investigation, interviewing more than 700 Volkswagen staff, primarily in the context of criminal proceedings against Volkswagen in the United States. In March 2017, the Public Prosecution Office obtained a seizure order for the Jones Day offices in Munich and secured extensive documentation that stemmed from the internal investigation. The Federal Constitutional Court ordered the Public Prosecution Office (Staatsanwaltschaft) München not to make use of the documents it seized and to have the documents put in custody with the Local Court (Amtsgericht) München, while the Federal Constitutional Court is considering the constitutional challenge.

The court stated that it had to weight the interests of the applicant to stop any further review of the documents on the one hand and the interest of the Public Prosecution Office to proceed with its investigation on the other hand. Since Jones Day’s constitutional complaint was not prima facie inadmissible or unfounded, it held that in the event of a successful constitutional complaint, greater damage would be inflicted upon the applicant if it allowed the review of the documents to proceed in the meantime, whereas the public prosecution would not be put at risk if its investigation were temporarily stayed.

Whatever the outcome, it will be the first substantive Position of the Federal Constitutional Court dealing with the scope and application of the attorney-client privilege in internal investigations. Last week’s decision came as something of a surprise, certainly to me, and apparently also to other commentators. So far all challenges by Volkswagen and Jones Day had failed, including the one it brought before the Federal Constitutional Court as recently as in May 2017. It is certainly a topic that warrants coming back to in more detail, to take this as a promise that I will follow up with a post on this.

The photo shows the Bundesverfassungsgericht’s court house in Karlsruhe, courtesy of the court’s web site.

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