Litigation

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

The concealment or destruction of evidence is a criminal offence only if a third party had a right to claim access to such evidence. This is rarely the case, as there is no duty on the parties to present all documents relevant to the dispute. On that issue, German law is quite contradictory:

  • on one hand, the parties are under an obligation to state the facts of the case completely and truthfully before the court. A violation of this duty can be prosecuted as (attempted) fraud in trial; but
  • on the other hand, the Federal Court of Justice highlights the principle that no one is obliged to provide the opponent with material that will support the opponent’s case.

As a result, a party will often have a lack of knowledge about the other side’s facts. To counterbalance this deficiency, the Federal Court of Justice will allow a party to state that particular facts are true even if the party only assumes that such facts are true and try to prove them using witnesses or neutral experts, or - in limited cases - shift the burden of proof (‘secondary burden of proof’).

Since a reform in 2002, German courts can, at their discretion, order a party to submit documents and similar objects (photos, etc) that are in its possession. However, this power of the courts is very seldom applied. The idea is not to give one party the opportunity to gain information held by the other party, but to help the court understand the issues in dispute by clarifying questions that arise.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

As there is no concept of discovery under German law and no duty on the parties to present all documents relevant to the dispute, there is no need for legal privilege in such cases. There is, however, testimonial privilege: where lawyers act as counsel they can refuse to give evidence as a witness unless their clients grant their consent. It is disputed whether testimonial privilege also applies to in-house lawyers. In 2005 the Regional Court of Berlin denied such privilege.

Section 5.3.1 of the CCBE Code of Conduct, which requires lawyers not to disclose to their own clients correspondence of the opponent’s lawyer if marked as ‘confidential’, contravenes German law. A German lawyer is obliged to pass on to his or her client all information and correspondence related to the case.

However, if a foreign lawyer asks a German lawyer to have talks or correspondence ‘without prejudice’, the German lawyer is obliged to inform and ask his or her client about such proposal and - depending on the client’s decision on the matter - give a clear answer to the foreign lawyer whether ‘without prejudice’ talks or correspondence are possible or not.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

No.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

In commercial matters the courts generally do not investigate the facts of a case on their own account, but restrict themselves to the evidence offered by the parties (see also question 8). The court will only take evidence if the contested facts to be proven:

  • have been previously alleged in the pleadings. German courts are very strict about this point - no fishing expeditions;
  • are not obvious or already known to the court; and
  • are relevant as to the outcome of the claim.

There are no sequence rules as to which evidence has to be taken first. The court will decide this according to logic and effectiveness.

Generally, witnesses must be examined orally. The impression of witnesses’ oral testimony is deemed to be most relevant in evaluating the credibility of their statements. The presentation by the parties of a written testimony (affidavit) is almost only possible in proceedings for interim remedies.

The examination of witnesses is mainly performed by the judge. After introductory questions to the witness (age, profession, relationship to parties) and a briefing regarding any possible privilege (family privilege, etc; see also question 9) and his or her duties as witness, the judge will start asking more general questions in order to permit the witness to tell the full story. The questions will then become more and more specific.

The examination of the witness often resembles a pleasant conversation. From time to time the presiding judge will dictate a summary of the testimony into the dossier, while the lawyers will pay attention to ensure that nuances important for their case are rendered correctly. Thereafter the parties can conduct supplemental questioning. The party’s lawyer that named the witness will start. It is rare that the court interferes and excludes irrelevant or redundant questions, but there is no culture of cross-examination. There is no witness conferencing. Witnesses are heard one after the other, but may be heard repeatedly to face them with other testimonies.

Experts are appointed by the court to assist the court in determining the facts. The court selects the expert. Most commonly, the expert will have to prepare a written opinion, which will be circulated to the parties.

If necessary, the court will ask the expert to supplement it with additional considerations to clarify certain issues or to reply to the parties’ comments. If requested, the court will schedule a hearing at which the parties can confront and interrogate the expert. If the court deems the expert opinion to be deficient, it can ask the expert to prepare a new one or appoint another expert for a second opinion.