Germany and Pre-Trial Discovery of Documents: A New Proposal

Friend of Letters Blogatory Peter Bert has a hopeful post about German practice under the Evidence Convention. I am in awe of the idea that politicians are interested in this topic, and that a change of government could lead to concrete changes in Evidence Convention practice. A version of this post was posted yesterday at Dispute Resolution Germany, Peter’s blog.

Germany has made a reservation under Article 23 Hague Evidence Convention and does not execute letters of request “issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” Long-time readers of this blog may recall that quite some time ago, in 2017, I had posted a piece “Germany’s Position on Pre-trial Discovery Softens!” Spoiler alert: Germany’s position did not change. Shortly after the 2017 post, the Legal Committee (Rechtsausschuss) of the Bundestag killed the proposed softening of Germany’s reservation under Article 23. With this note of caution, we report on a new attempt at changing Germany’s position. 

The Proposal

Earlier this month, the German Ministry of Justice published draft legislation that is almost identical to the one proposed but not implemented in 2016/2017. Under the proposed new wording of Germany’s act implementing the Evidence Convention (HBÜAusfG) Germany would entertain requests under the Hague Evidence Convention of the discovery of documents, if these conditions were met:

  • the documents the production of which is requested are precisely specified,
  • the documents the production of which is requested are of relevance for the proceedings in question and for its outcome,
  • the documents the production of which is requested are in the possession of a party to the proceedings,
  • if the production request does not violate fundamental principles of German law.

What’s Different this Time?

The most obvious new factor is Germany’s new government. The proposal is being re-introduced by a Ministry of Justice led by Marco Buschmann, a minister of the pro-business liberal Free Democrats (FDP). Traditional political logic would suggest that the legislation should be passed if the Free Democrats support it, as the Social Democrats and the Greens, the other parties forming the government, are unlikely to stop it.

The 2016 proposal’s legislative materials (Regierungsbegründung) stated that the new provision was expressly designed as an incentive for the US courts to use the Hague Evidence Convention. The legislative materials note that following the US Supreme Court’s 1987 Aerospatiale decision, the US courts’ reliance of the FRCP would be permissible only as long as Germany’s reservation pursuant to Article 23 meant that letters of request had no chance of being executed. Once the US courts could rely on effective and speedy execution of letters of request, comity would require them to apply the Convention. This argument was criticized for lack of empirical evidence from other jurisdictions that such an approach actually influences US court practice, and it has now been dropped.

Another thing that’s new is Brexit: As the United Kingdom has left the European Union, the EU Evidence Regulation no longer applies to judicial cooperation between the United Kingdom and Germany. Requests for disclosure and inspection of documents originating from England under Part 31 of the Civil Procedure Rules hence fall within the scope of Article 23 Evidence Convention, Under the proposed new rules, Germany would entertain such requests. This of course is not a factor the law-makers are likely to give any weight in their decision making, but it would in practical terms expand the scope for the new rules.

Will it Happen?

Let’s wait and see – we will keep you posted about the progress of that proposal. If you are looking for more background information, may I refer you to an extended German-language version at zpoblog.de.

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