As a new resident of Germany, one discovers the cliché of German efficiency is not entirely accurate. The Berlin-Brandenburg Airport is set to open in October – just nine years later than planned. Few bureaucratic processes can be carried out online: Every address change requires lining up at the Bürgeramt (town hall) to formally register that address and have your ID card stamped. However, as I explore in this blog update, the efficiency of the German litigation process is undeniable.
In this update, I:
– Set out the key features of civil litigation in Germany;
– Explain why ediscovery in Germany has been relatively slow to take off;
– Indicate some areas where we can expect to see increased use of ediscovery tools:
It is often said that Germany, like most of continental Europe, has a ‘civil law’ legal system in contrast to the ‘common law’ systems of former British colonies. While the precise difference between the two systems is fairly murky, civil law places an emphasis on all-encompassing civil codes which are applied by Judges. By contrast, common law traditionally places more emphasis on the decisions of judges which establish ‘precedents’, which are then applied alongside statutes passed by legislatures.
Another important distinction between the two systems is in the way cases are adjudicated: Germany has an ‘inquisitive’ system, while the United States maintains an ‘adversarial model’ of adjudication. This means that in Germany, the process is more ‘Judge-driven’, rather than ‘lawyer-driven’. It is the Judge in Germany who leads the questioning of witnesses, not lawyers.
A third distinction is the absence of juries in Germany. All cases are decided by professional judges, who, depending on the state and the case in question, sit alongside ‘lay judges’ – non-professional judges who are appointed for five-year periods.
The prominence of precise rules and Judge-driven processes in German litigation means that ‘Discovery’ – a lawyer-driven process – never developed. The general principle in German law is that each side to the dispute must gather the evidence to fully support their claims and defences, and the other side is not required to help in that process. In general, the Judge only hears evidence on specific disputed issues of material fact (Note, there are some exceptions to this general principle such as intellectual property and antitrust disputes). There is no general ability of lawyers to gather information from the other side on the basis of ‘relevance’.
The end result is a much faster (no protracted Discovery), and more predictable (no fickle juries), civil litigation process: As efficient as a Volkswagen Polo.
Does this mean ediscovery is a redundant concept in Germany? No, it doesn’t. There are several reasons why ediscovery in Germany is on the uptick, specifically when it applies to ediscovery solutions, such as predictive coding. There is likely to be further growth in the future:
– The prevalence of multinationals which are based in Germany, or otherwise do business in Germany means that they are now, more than ever, susceptible to being drawn into lawsuits in United States courts where Discovery is mandated;
– Germany has long been an international arbitration hub. While German arbitrators are still not the biggest Discovery fans, they do have latitude to allow for it;
– German regulators have extensive powers to demand large volumes of data. For example, the Bundeskartellamt (federal competition supervisory agency) or BaFin (the federal financial supervisory authority), both have substantial powers to command documentation. For companies in highly regulated industries, ediscovery techniques such as predictive coding can be essential for preparing and responding to such actions.
While the German legal system is not Discovery-friendly, you can expect to see an uptake in ediscovery tools, but outside the context of traditional litigation.
For more information on civil litigation in Germany see Litigation and Dispute Resolution 2019.