Discovery

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Discovery is the pre-trial phase in a (US) lawsuit in which each party can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. The discovery is one feature of the American procedure law which is very different than the civil procedure in civil law countries. In civil law countries, the parties are obligated to produce only those documents to which they refer in their complaints. If the other party wishes to obtain access to other documents, which the party has to specify, the party must ask the court to order the other party to disclose these specific documents. Therefore, discovery faces some obstacles when it comes to an international context. The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters from March 1970 is a treaty which tries to solve the problems caused by different procedure laws.

The USA and Germany are both parties to the Hague Convention. However, this does not solve all procedure difficulties. Under Article 23 of the Convention countries limit the scope of their treaty responsibility and to avoid responses to certain requests from abroad:

“A Contracting State may at the time of signature, ratification or accession, declare 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.”

Germany has made such reservation. Pursuant to § 14 of the German Act on the Execution of the Hague Evidence Convention (Ausführungsgesetz,”German Execution Act”), a regulation may be issued to allow for the execution of requests for the purpose of obtaining pre-trial discovery of documents unless fundamental principles of German procedural law are not opposed thereto. As of today, Germany has not issued a respective regulation yet.

There is a vivid discussion whether the German reservation requires that any request for pre-trial discovery of documents has to be rejected or documents can be obtained if the request is narrowly defined and limited to the production of specific documents. It seems to be the goal of the reservation to prevent fishing expeditions. Therefore, it is suggested that German authorities execute requests for the production of specifically defined documents.

Even if one allowed the execution of requests for the production of precisely specified documents it has to be expected that U.S. courts still would consider the procedure under the Hague Evidence Convention as insufficient, too complicated and tardy (First American Corp. v. Price Waterhouse). In this case the the Court stresses that the process under the Hague Evidence Convention is insufficient because it required a specification of the requested documents. In conclusion the practice of the Hague Evidence Convention is not considered as an efficient means of obtaining pre-trial discovery of documents. U.S. courts respond by avoiding the Hague Evidence Convention because it is perceived as inflexible and ineffective. The practice of the German Ministry of Justice and the U.S. Consulate General is likewise rather formal and bureaucratic.

Depositions

The Hague Evidence Convention does not set forth any details to be followed when executing the most common type of pre-trial witness testimony in U.S. litigation, the taking of depositions. The Hague Evidence Convention provides for the taking of evidence by diplomatic officers, consular agents and commissioners. Germany, however, has made a general reservation: the taking of evidence through diplomatic officers or consular agents is not admissible if it relates to German nationals. It is possible to make an exception to this reservation through bilateral agreement with a contracting state. This is the case between Germany and the U.S.

Germany and the U.S. exchanged diplomatic notes which laid the foundation for “the questioning of German or other non-American citizens” by specifying the requirements under which the questioning is admissible. Most importantly, no pressure may be imposed on the person to be questioned to make her appear or provide information. This includes that the request to provide information is not called a “summons” and that no coercive measures are threatened in the event that a person does not appear or refuses to provide information. Furthermore, the person to be questioned has the right to be accompanied by a lawyer.

During the past years, Germany and the U.S. developed the practice to allow for depositions on German territory with regard to German nationals if the German Ministry of Justice is informed and approves the deposition in advance. Furthermore, it is required that the U.S. Mission to Germany is involved or that the deposition will be held at the premises of U.S. Consulate General and that the oath is administered by a U.S. Consul.

Due to the involvement of the German Ministry of Justice as well as the U.S. Consulate General parties are well-advised to plan depositions in Germany ahead as the space at the Consulate General is limited and an early scheduling is advisable. The rather formal set-up frequently tempts parties to organize depositions on German territory without involvement of either the German or U.S. Authorities. The parties and lawyers involved, however, may risk criminal prosecution as the questioning of witnesses may constitute an unlawful assumption of public authority (Section 132 of the German Criminal Code (Strafgesetzbuch). It is argued that the questioning of witnesses is reserved to the police, prosecutors and courts so that depositions by lawyers violate the German sovereignty.

For additional information please visit: http://germany.usembassy.gov/acs/judicial-assistance/

Author: Melanie Schmitz, Legal Trainee, Charlotte Office