Foreign Requests for Evidence: Has Germany Found a Better Solution or Opened Pandora’s Box?

The Federal Republic of Germany (Germany) has amended its Implementing Act to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The amendment went into force on 1 July, 2022 and now allows court assistance to foreign parties seeking pre-trial discovery of documents. The move is a complete departure from the previous no-assistance stance, and affects cross-border discovery issues between Germany and the U.K. and U.S. This news article explains how the amendment affects parties in Germany and the U.K. and U.S.

The Situation Prior to the Amendment

Until now, parties outside of the European Union (EU) who sought assistance from German courts in obtaining evidence located in Germany faced quite a challenge. Such requests are governed by the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention, HBÜ), to which 64 countries are signatories. Importantly, this includes Germany, the U.K. and the U.S. The purpose of the Convention is to improve mutual judicial cooperation, particularly between civil and common law states, and to facilitate the transmission and execution of Letters of Request (also known as Letters Rogatory).

Under Article 23 of the Hague Evidence Convention, however, “[c]ontracting States may declare that they will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” The pre-trial discovery of documents allows the lawyers of the parties in common law countries to request and obtain evidence in the form of emails, letters, invoices, meeting minutes, etc. from opposing parties to a lawsuit. The fear of many civil law countries is that discovery in this manner could quickly become overwhelming and used nefariously as a fishing expedition or inundate the other side with so much evidence that they don’t have the manpower nor time to review it all.

While many other countries laid ground rules for how and what evidence could be requested, Germany utilized Article 23 to declare a general reservation with exceptions for requests that did not conflict with “fundamental principles of German procedural law” or “interests of the persons concerned that are worthy of protection.” The result was essentially a blanket denial of any requests for pre-trial discovery from foreign parties. This frequently led to foreign courts reaching extraterritorially and utilizing their own civil procedure rules to issue discovery orders.

The Amendment

The amended Section 14 of the Implementing Act now allows letters rogatory of the pre-trial discovery of documents so long as:

1. the request specifies in detail the documents to be produced, (thereby eliminating vague requests which can be overburdensome and expensive)
2. the documents clearly relate to and are important for the proceedings,
3. the documents are in the possession of a party to the proceedings,
4. the request for production of documents does not violate essential principles of German law and
5. the GDPR applies in the case personal data is involved.

The Max Planck Institutes in both Luxembourg and Hamburg proposed deleting amended Section 14’s restriction regarding documents that are only in the possession of parties to the proceedings, stating that no other state has declared a comparable reservation and that it would contradict the aim of the bill. In fact, the Institutes pointed out that Section 142 paragraph 1 of the German Code of Civil Procedure (ZPO) actually recognizes a third-party document submission subject to conditions intended to protect the third party. Further, the Institutes indicated that a public policy/ordre public exception for requests is unnecessary to protect privacy and that it would also be counterproductive for the Hague Evidence Convention’s purposes.

The Future of Foreign Pre-trial Discovery Requests

As can be seen in the final version of the amendment, the restrictions regarding third parties and public policy remained. Regardless, the amendment provides German parties with more guidance when a common law court orders them to comply with certain discovery requests. Previously, German parties risked tough sanctions from foreign courts for non-compliance while also risking costly punishment in Germany for compliance (e.g. violations of privacy laws). It may also encourage common law countries to utilize the Hague Evidence Convention rather than trying to enforce their own civil procedure laws, therefore reducing lengthy and costly back and forth disputing. Lastly, common law countries are known for their extensive and broad discovery requests. Cooperation through the Hague Evidence Convention could actually act to reign this in through Germany’s restrictions regarding vague requests and relevance.