Pre-Trial Discovery under the Hague Evidence Convention: Is Germany’s Position Softening?

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.

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Compelling German Third-party Witnesses to Testify in US Litigation

In U.S.-German disputes, the question often arises whether a party in U.S.litigation can compel a third-party witness who is a German resident and does not volunteer to testify to render testimony as part of the pre-trial deposition discovery in the U.S.proceedings. In short, the answer is yes. Continue reading

Judicial Review of Service under the Hague Service Convention

German defendants in foreign litigation can ask the German courts to review a request for service of process under the Hague Service Convention originating from a US court for compliance with the Convention. There are references to this procedure in several US cases, such as In re South African Apartheid Litig., 643 F. Supp. 2d 423, 437 (S.D.N.Y. 2007) or Bauman v. DaimlerChrysler AG, 2005 WL 3157472, at *1 (N.D. Cal. Nov. 22, 2005) and the question how that mechanism works comes up time and time again in discussions with US colleagues. This post describes the procedure and some recent cases that illustrate the approach of the German courts to – mainly US – service requests. Continue reading

If You’re Going to San Francisco – Service of Process between Berlin and California

“If you’re going to San Francisco, be sure to wear some flowers in your hair…” It may have been in this spirit that a German couple went to California and got married there in 1997. The love-in was over when of the wife got in motion, returned to Germany and filed divorce proceedings in Berlin in 2006. Process was served on the husband she left back in California – creating an opportunity for the Federal Supreme Court (Bundesgerichtshof) to clarify some rather technical, but highly relevant issues on defective service in relation to the Hague Service Convention. Continue reading