Hague Convention Guides Germany’s Amendments on Pre-Trial Discovery

Germany Stops Prohibiting Pre-Trial Discovery Under Hague Convention

It is no secret that when it comes to international law, judicial power ends at the country’s borders. As a result, courts need help from foreign courts when a party is seeking discovery outside of its jurisdiction. German courts used to flat-out refuse to execute a pre-trial discovery request generated from a common-law jurisdiction. Last year, however, Germany amended its Implementing Act to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Implementing Act”), allowing for pre-trial discovery under certain conditions. But because Germany’s requirements of pre-trial discovery, when compared to other nations, is significantly higher, the country’s approach to the issue remains hesitant.

Pre-Amendment

The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”), which became effective in 1972, governs questions of judicial assistance by Germany for courts based outside of the European Union (“EU”). The international agreement also governs the taking of evidence. The Hague Evidence Convention’s goal was to connect common and civil law, and it established standardized procedures for the handling of overseas evidence requests. 64 nations are signatories to the international agreement including the United States, the United Kingdom, China, Russia, and most of the EU.

The Hague Evidence Convention governs all types of taking evidence, and signatories were permitted to declare a reservation regarding pre-trial discovery in response to concerns about invasive requests. Twenty-eight nations asserted an absolute, non-specific reservation (including Germany), while another 19 have declared to only fulfill a request if certain requirements were satisfied.

Germany’s New Rule

Germany’s Federal Ministry of Justice (“FMJ”) drafted an amendment to the Implementing Act, which was passed and effective July 1, 2022. The Implementing Act changes Germany’s prior, absolute, and non-specific reservation to the Hague Evidence Convention to a qualified one, fulfilling requests for mutual assistance on pre-trial discovery matters if all of the following factors are satisfied:

• The documents that will be produced are detailed and specific;
• The documents that will be produced can be identified as directly and clearly important for the proceeding at issue and the outcome;
• The documents that will be produced are in possession of the party or parties involved in the particular proceeding;
• The request for documents is not in violation of the essential principles of German law; and
• If the documents that will be produced contain personal data, the requirements under EU law to transfer to a third party are satisfied.

The recent amendment will permit German courts to execute pre-trial discovery requests from overseas jurisdictions, unlike before. How this amendment will change transnational litigation in Germany remains to be seen.

International Service of Process

If you need to serve a foreign defendant, contact Ancillary Legal at (404) 459-8006. Our team has the experience, knowledge, and resources to help support your international litigation needs. Contact us today to find out how we can help you. If you need support for your depositions, court reporting, transcripts, and videography, contact us at Elizabeth Gallo Court Reporting.