Taking evidence in Germany is challenging under the best of conditions, requiring large expenditures of both time and money. Regardless of the method used to take evidence in Germany just one request for documents or testimony can add months of delay to discovery. As for expenses, attorneys contemplating taking evidence in Germany should be prepared to spend $20,000 or more. This means that the evidence sought in Germany should be valuable to the case without being dispositive – because, as we’ll explain, if the evidence is truly dispositive there may be grounds to dismiss the case for forum non conveniens.

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Germany is a civil law country. Chapter 2 provides an overview of how a civil law system functions. Chapters 3 provides a comprehensive review of taking evidence in Germany pursuant to the Hague Evidence Convention; chapter 4 provides a comprehensive review of taking evidence pursuant to the Federal Rules of Civil Procedure. Both methods have their advantages and their drawbacks. Attorneys should select the method for taking evidence that is most likely to meet their goals. Chapter 5 provides a brief summary of the pros and cons of taking evidence under either the Hague Evidence Convention or the Federal Rules of Civil Procedure.

The Appendices provide attorneys with important resources:

• A model Letter of Request for taking evidence in Germany
• Contact information for the German Central Authorities
• A translation of the relevant and cited German laws, as of October 2016, including a copy of the Hague Evidence Convention and Germany’s reservations to the Hague Evidence Convention
• A summary of the procedures to follow and fees required to take a deposition at a U.S. Consulate in Germany

In order to take evidence in Germany under the Federal Rules of Civil Procedure, a court must have personal jurisdiction over the defendant or witness. Accordingly, the court must have a constitutional basis for asserting jurisdiction, a statutory basis for asserting jurisdiction, and a finding that service of process was proper. Because the constitutional basis is a major issue when evidence is sought from a non-party witness under the Federal Rules, we review the constitutional basis for personal jurisdiction in the section on taking evidence from non-party witnesses. Throughout the text we will assume that there is always a statutory basis for asserting jurisdiction under a state statute. However, strictly speaking, this assumption is not always true and hence may require some research.

Before we conclude this discussion, a cautionary comment is in order. Service of originating process upon a German defendant must be effected pursuant to the terms of the Hague Service Convention.  However, service of a “subpoena” on a non-party is controlled by the Hague Evidence Convention. Under the Hague Evidence Convention a “subpoena” is actually a request for evidence, called a Hague Evidence Request or a Letter of Request. Throughout this monograph we use words that U.S. attorneys are most comfortable using. Thus, the word “subpoena,” is used when evidence is sought from a non-party, regardless of its technical and administrative details under the Hague Evidence Convention. Similarly, the word “deposition” is used throughout this monograph, even though the equivalent procedure in the German legal system is really the “in-court judicial examination of a witness.”