Civil litigation in Germany is based on the concept of the development of proof (Beibringungsgrundsatz), which ensures that each party must submit facts and evidence in support of its argument or defense. Consequently, with some few exceptions, there is no method of document disclosure in civil cases and so there is no need to create special ‘privilege’ laws to shield information from discovery in general.
Instead, Germany has taken on a duty of professional confidentiality for both general advice and lawsuits, which extends to all members of the Bar.
Pursuant to Section 43a(2) of the Federal Attorney Regulation of the Bundesrechtsanwaltsordnung—BRAO, this duty applies to all that has become known to a lawyer in private practice. In addition, if a lawyer is summoned as a witness, he or she has the right to deny testimony pursuant to Article 383(1) No. 6 of the Civil Procedure Code (ZPO) with regard to all the details that fall within the scope of his or her duty to confidentiality. The duty to confidentiality thus provides a very practical equivalent of legal professional privilege, at least in so far as it applies to records and information in the hands of a lawyer.
As mentioned above, there are restricted discovery obligations which the parties have to satisfy in civil litigation. In fact, these exceptions are not of great significance. However, pursuant to section 142 of the ZPO, the court can, at its own discretion, order one of the parties or a third party to produce records or documents, as well as any other material in its possession to which reference has been made by one of the parties. In the exercise of its discretion, the court must consider whether the records concerned may contain some confidential communication between a party and its lawyer within the scope of Section 43a(2) BRAO. Subject to extraordinary situations, such as malicious violation of this principle, any direction for the submission of such documents will not be acceptable.
Similar limitations can be taken from Articles 6 and 8 of the European Convention on Human Rights.
In addition, pursuant to section 421 et seq. ZPO, a party may ask the court to direct the other party to produce a record or paper. However, this may only be required if the party making the submission of evidence alleges that the record or document is in the possession of the opponent and, in compliance with the provisions of civil law, the party making the submission of evidence may request the enclosing or creation of the record or document, or the opponent has submitted the record or document in the course of the proceedings.
The contact between the attorney and his client is protected by a variety of restrictions on seizures based on the following principles:
Efficient defense right is covered by Article 6(3) of the European Convention on Human Rights and by Articles 2(1) and 20(3) of the German Constitution (Grundgesetz—GGG). It prevents correspondence and private notes from being seized if they contribute to the protection of the client, regardless of whether they are in the hands of the lawyer or the client.
This is the right of certain people to withhold evidence. Pursuant to Section 53(1) No. and No. 2 of the Criminal Procedure Code (Strafprozessordnung—StPO), an attorney has the right to deny evidence in respect of matters entrusted to him in his capacity as a defense lawyer. In this relation, Section 97(1) No. 1 of the StPO specifies that correspondence between the defendant and the individuals entitled to deny the testimony shall not be confiscated (‘defence correspondence’). In general, pursuant to section 97(2) of the StPO, this prohibition extends only if the person concerned is in possession of the respective documents.
Legal professional protection has only recently been expanded to refer to cases involving criminal investigations against a lawyer. This legislative reform was brought about by a recent addition to Section 160 of the StPO. Judicial proceedings can also no longer be undertaken against lawyers in order to obtain evidence that would be subject to the right of the lawyer to deny testimony.
In general, there is no legal professional privilege defense available to in-house lawyers.
Under the scope mentioned below, there is a legal professional right in the case of inquiries by the competition authority. With regard to the effective right of defence, and the prohibition of seizure on the grounds of the right to deny evidence, correspondence relating to the defense of the client shall not be seized. However, unlike the principles of EU law, non-counsel work items are secured only if they are created as defense correspondence. General outside counsel advice, in particular advice on the validity of an arrangement and the like, can be seized and used against the corporation, e.g. to prove intent. For info, see the passages ‘Jones-Day-Decision’ below, which apply accordingly to anti-trust proceedings.
Communications between employees and in-house attorneys or between a corporation and non-German lawyers are not covered by legal professional privileges.