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[null,"Prepared By:","Contributors:"]
[null,"Noerr","Meike von Levetzow"]
[]
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["Gathering Evidence in Aid of Foreign Litigation Guide"]
[]
["Report Generated: 5/9/2025"]
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["View your report results on next tab"]

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["Question","Germany"]
["Lex Mundi Gathering Evidence in Aid of Foreign Litigation Guide"]
["Does your jurisdiction permit gathering evidence in aid of foreign litigation?","Yes.\n"]
["Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation?  Please indicate the relevant statutes.","Yes, Germany is a party to the \nConvention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). The application of the \nHague Evidence Convention is more specifically regulated in the \nGerman Implementation Law (\"\nHZÜAG\"). Additionally, the \nGerman Ordinance on Legal Assistance in Civil Matters (\nRechtshilfeordnung für Zivilsachen – ZRHO)) applies.\nThe Letters Rogatory must be submitted in German or be accompanied by a translation into German since Germany excluded the application of \nArt. 4 (2) Hague Evidence Convention (Art. 33 (1) Hague Evidence Convention, Sec. 9 German Implementation Law (HZÜAG)).Germany furthermore concluded bilateral \nSupplementary Agreements with other signatories of the \nHague Convention on Civil Procedure to further facilitate legal cooperation. These agreements are applicable to the\nHague Evidence Convention according to \nArt. 31. Regulations under the \nSupplementary Agreements usually include that the foreign court may submit a letter of request directly to the relevant German district court and a German court may arrange for a translation at the expense of the requesting authority if a translation is not attached. Germany concluded \nSupplementary Agreements with the following countries: Austria, Belgium, Czech Republic, Denmark, France, Luxembourg, Netherlands, Norway, Poland, Sweden and Switzerland.\nFor some countries, that have not acceded to the \nHague Evidence Convention, only the\n Hague Convention of 1 March 1954 on the Civil Procedure is applicable.\nFurther, among the member states of the EU (with exception of Denmark) \nRegulation (EC) No 1206/2001 on Cooperation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters applies.\nBesides, Germany is a party to several bilateral treaties. All treaties may be applied additionally to the \nHague Evidence Convention (\nArt. 32 Hague Evidence Convention) or can solely be relied upon in relation to countries that are not signatories to the \nHague Evidence Convention.\nThe \nGerman-British Convention Regarding Legal Proceedings in Civil and Commercial Matters of 20 March 1928 applies to letters of request from the United Kingdom and many countries of the British Commonwealth (as of February 2022: Australia, Bahamas, Barbados, Dominica, Eswatini, Canada, Cyprus, Fiji, Gambia, Grenada, Guyana, Jamaica, Lesotho, Malawi, Malaysia, Malta, Mauritius, Nauru, New Zealand, Nigeria, Solomon Islands, Seychelles, Sierra Leone, Singapore, Saint Lucia, Saint Vincent and the Grenadines, Tanzania, Trinidad and Tobago). Under \nArt. 9 of the \nConvention, the letters of request can be transmitted through a consular or diplomatic officer to the President of the German Landgericht or district court. Similarly, under \nArt. 8 of the \nGerman-Greek Treaty of 11 May 1938, under Art. 19 of the German-Moroccan Treaty of 29 October 1985 and under \nArt.12 of the \nGerman-Turkish Treaty of 28 May 1929, letters of request can be transmitted through consular channels. The \nGerman-Liechtenstein Agreement of 17 February 1958/29 May 1959 allows a request to be made directly to the relevant German district court.\nFurthermore, the \nGerman-Moroccan Treaty of 29 October 1985, Art. 28 and the \nGerman-Tunisian Treaty of 19 July 1966, Art. 20, protocol no.1 permit requests for legal aid in French.\nInformation on Germany’s mutual legal assistance in relation to all countries can also be found in the country section of the \nGerman Ordinance on Legal Assistance in Civil Matters (\"\nZRHO\") published on the website of the Federal Office of Justice under the following link: \nhttps://www.bundesjustizamt.de/DE/Themen/Gerichte_Behoerden/IRZH/Rechtshilfeordnung/Laender/ZRHO_node.html"]
["Do requests for gathering evidence require approval by a court or administrative body?  Please indicate the appropriate forum for making such requests.","Letters of request have to be submitted to the central authority according to \nArt. 2 Hague Evidence Convention. In Germany, each state has a central authority within the meaning of \nArt. 2 Hague Evidence Convention since the German federal states are free to designate multiple central authorities under \nArt. 24 (2) Hague Evidence Convention. The German authorities are enumerated in \nSec. 9 (4) German Ordinance on Legal Assistance in Civil Matters (\"ZRHO\") and listed on the \nHague Conference’s (\"HCCH\") website (cf. \nhttps://www.hcch.net/de/states/authorities/details3/?aid=775; last accessed on 11 February 2022).\nForeign diplomatic or consular representatives can gather evidence from their own nationals without prior authorization in accordance with \nArt. 15 (1) Hague Evidence Convention. In case of evidence gathering from third state nationals, diplomatic or consular representatives however require approval from a German central authority, \nArt. 16 (1) Hague Evidence Convention, Sec. 11 German implementation law (\"HZÜAG\"). The gathering of evidence from German nationals by diplomatic or consular representatives is inadmissible according to \nSec. 11 German implementation law (\"HZÜAG\").The gathering of evidence by authorized foreign representatives is permissible vis-à-vis both German nationals and foreign nationals only after a German central authority has given its approval according to \nArt. 17 Hague Evidence Convention.Pursuant to \nArt. 11 German-British Convention, apart from a letter of request to the German court, the evidence may also be taken without the intervention of the German authorities by a diplomatic or consular officer of the contracting party before whose courts the evidence is to be used. Pursuant to \nArt. 12 German-British Convention, the competent German court may also be requested to cause the evidence to be taken by a diplomatic or consular officer of the contracting party making the request.\n"]
["What types of information can be sought?  Requests for Documents?  Written questions? Depositions?"," As a general rule – in line with the principle that the judicial authority which executes a letter of request generally applies its own law as to the methods and procedures to be followed ( Art. 9(1) Hague Evidence Convention , Art. 14 Hague Convention on Civil Procure and Art. 9(i) German-British Convention – there are five different possibilities of taking evidence in Germany according to the German Code of Civil Procedure (abbreviated “ ZPO ” in German) to be conducted by the competent local court in whose district the legal assistance is to be provided ( Sec. 8 German implementation law (\" HZÜAG \") ): \n\n \n\t Documents provided by the parties ( Sec. 415 et seq. ZPO ) \n\t Interrogation of Witnesses by the court ( Sec. 373 et seq. ZPO ) \n\t Expert opinions ( Sec. 402 et seq. ZPO ) \n\t Evidence taken by visual inspection ( Sec. 371 et seq. ZPO ) \n\t Interrogation of the parties ( Sec. 445 et seq. ZPO ) \n \n\n Other types of information – such as witness depositions and requests for documents – can partially be sought under certain conditions on the basis of Art. 9(2) Hague Evidence Convention , Art. 14 Hague Convention on Civil Procedure and Art. 9(i) German-British Convention , according to which the German judicial authority executing a letter of request will follow a request of the requesting authority with respect to a special method or procedure to be followed unless this is incompatible with the internal law of Germany or if performance is impossible for reasons of Germany’s internal practice and procedure or by reason of practical difficulties. \n\n Requests for witness depositions are processed under the following prerequisites: \n\n \n\t Depositions of nationals of the requesting state and third countries can be conducted on a voluntary basis in the consulate ( Art. 15 Hague Evidence Convention ). Depositions regarding requests from the U.S. have to take place at the U.S. Consulate General in Frankfurt am Main (for further instructions, see https://uploads.mwp.mprod.getusinfo.com/uploads/sites/19/2021/12/Deposition-Instructions_022719.pdf ). \n\t Depositions of German nationals on a voluntary basis can only be conducted by a neutral commissioner after approval of the central authority ( Art. 17 Hague Evidence Convention , Sec. 12 German implementation law (\" HZÜAG \") ). The commissioner then applies the rules of the requesting state, within the limits of the German order public. \n \n\n Requests for documents on a pre-trial discovery basis are generally not executed in Germany. Germany has declared a reservation with regard to requests concerning the pre-trial discovery of documents according to Art. 23 Hague Evidence Convention , see Sec. 14 German implementation law (\" HZÜAG \"). \n\n Under Art. 11 German-British Convention , the evidence may also be taken without the intervention of the German authorities by a diplomatic or consular officer of the contracting party before whose courts the evidence is to be used on a voluntary basis. The appearance before the diplomatic or consular officer as well as requests for specific documents is enforced by the German court under Art. 12 German-British Convention provided that the person who is to appear and/or produce the document is a national of the requesting party. \n\n According to Sec. 129 German Ordinance on Legal Assistance in Civil Matters (\" ZRHO \") , questioning of a witness shall be conducted in the facilitated form of written questioning only if the requesting authority has expressly requested this in the request or has declared it permissible. \n"]
["Who bears the burden of showing whether any privileges apply?"," When evidence is taken under German procedural law in accordance with Art. 9 (1) Hague Evidence Convention , the person invoking a privilege to refuse to give evidence must state the facts on which it bases the refusal and make them credible according to Sec. 386 of the German Code of Civil Procedure (\" ZPO \"). \n\n The privilege to refuse to give evidence may arise from the law of the state of execution or from the law of the state of origin according to Art. 11 Hague Evidence Convention . \n\n According to German law, there is a right to refuse to give evidence for the following: \n\n \n\t affianced and married persons, \n\t close relatives, \n\t attorneys, tax advisers, CPAs, and doctors with respect to information concerning clients or patients, as far as the duty of confidentiality has not been waived, \n\t questions touching on company or trade secrets, \n\t questions, the answers to which may bring about the danger for the witness to criminal prosecution or the imposition of a fine. \n \n\n These rights to refuse to give evidence equally apply with respect to witness testimony and the production of documents. \n\n The principle of the so-called attorney-client privilege is not known under German law. There is no pre-trial discovery in Germany. Under German civil procedural law, the parties determine which facts they present and which evidence they submit. Therefore, besides general secrecy, there is no need for special privileges for correspondence with legal advisors. \n"]
["Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending?\n","In general, there need not be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending. If the requested court has doubts with respect to a privilege to refuse to give evidence under the law of the requesting authority, however, it may obtain a confirmation in accordance with \nArt. 11 (1) (b) Hague Evidence Convention.The requesting court generally has the right to attend the taking of evidence (\nSec. 134 German Ordinance on Legal Assistance in Civil Matters (\"ZRHO\")).\n"]
["If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.)","Depositions are only allowed within the scope described above in our response to \"\nWhat types of information can be sought? Requests for Documents? Written questions? Depositions?\". Witness examinations by diplomatic or consular officers pursuant to \nArt. 11 German-British Convention are not subject to any special rules and may, therefore – on a voluntary basis – also be conducted remotely by the diplomatic or consular officer in Germany, not by the requesting court itself.\nIn general, witness interrogations according to the \nGerman Code of Civil Procedure conducted by the competent German local court may be held remotely (\nSec. 128a German Code of Civil Procedure (\"ZPO\")). Yet, not all courts do have the necessary equipment for remote hearings.\nFurthermore, in 2021, the central authorities of the states of Bavaria, Rhineland-Palatinate and North Rhine-Westphalia have explicitly allowed depositions under \nArt. 17 Hague Evidence Convention are conducted remotely, mandating however that a regular judge was given the opportunity to attend.\n"]
["Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings?","The \nGeneral Data Protection Regulation (EU) 2016/679 can be understood as a blocking statute as it does generally not allow the processing and transfer of personal data to third countries without a legal basis. \nArt. 45 of the \nRegulation (EU) 2016/679 obliges German courts to only transfer personal data if the receiving state has an appropriately high standard of data protection. To which extent the \nGeneral Data Protection Regulation affects the application of the \nHague Evidence Convention or bilateral treaties is still highly debated in German legal literature.\n"]
["May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding?  If not, what procedure must be followed before they can give evidence?  If such restrictions exist, are they enforced in practice?","Generally, taking of evidence by a foreign court in Germany outside the \nHague Evidence Convention or other bilateral agreements, as the case may be, generally constitutes a violation of German Sovereignty, irrespective of voluntariness. However, as stated above, depositions are possible under certain prerequisites under \nArt. 15 to 17 Hague Evidence Conventionand the examination by diplomatic and consular officers is admissible on a voluntary basis under the \nGerman-British Convention.German citizens, however, of course, are generally free to travel abroad to give evidence and to send documents they own to other countries.\n"]
["Would your answers differ materially if the foreign proceeding is arbitration, and if so how?","If the foreign proceeding is arbitration, the answers will differ because arbitral tribunals are not deemed to be a state authority and thus are not entitled to submit a letter of request under the \nHague Evidence Convention (see \nArt. 1 (1) of the \nHague Evidence Conventionaccording to which a letter of request must be issued by a state judicial authority).\nHowever, German arbitration law provides legal aid for arbitral tribunals in arbitration proceedings with a seat outside of Germany. The same legal aid which can be obtained by arbitral tribunals in domestic arbitrations can also be obtained in such foreign arbitration proceedings (\nSec. 1025 (2), 1050 German Code of Civil Procedure (\"ZPO\")). The letter of request must also be sent to the district court in whose district the legal assistance with respect to the taking of evidence is to be provided (\nSec. 1062(4) German Code of Civil Procedure (\"ZPO\")). The letter of request\nmust be filed in German (\nSec. 184 German Court Constitution Act (\"GVG\")).\nWhereas the German court cannot examine the pertinence of the request for legal aid, it must verify that there is an arbitration agreement between the relevant parties that allows the desired measure. Moreover, the arbitration tribunal must not be competent to conduct the desired measure itself as the involvement of the court is considered a last measure. Lastly, the desired measure must be allowed under German procedural law. Generally possible are, in particular, coercive measures against witnesses, experts and parties, such as summoning and questioning witnesses and experts who do not appear before the arbitral tribunal voluntarily, taking oaths, information from German authorities and the submission of documents or objects by parties and third parties.\nAlso, in this case, the arbitral tribunal requesting legal aid generally has the right to attend the taking of evidence.\n"]