Sie sind auf Seite 1von 3

IIC 1982, 759 - beck-online

Page 1 of 3

Munich Court of Appeals (Oberlandesgericht Mnchen): Munich Court of Appeals (Oberlandesgericht Mnchen) 31.10.1980 Case: 9 VA 3/80 "Discovery I"

IIC 1982, 759

Munich Court of Appeals (Oberlandesgericht Mnchen) 31.10.1980 Case: 9 VA 3/80 "Discovery I"
The Hague Convention of March 18, 1970 1. A letter of request of an American court issued for the purpose of obtaining "pretrial discovery of documents" is subject to the reservation of non-execution according to Art. 23 of The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters declared by the German government and can therefore not be complied with. 2. It is irrespective in this context that the production of documents is aimed for an already pending law-suit and not for the discovery proceeding as such. Munich Court of Appeals (Oberlandesgericht Mnchen), Decision vom 31.10.1980 - Case: 9 VA 3/80 ("Discovery I") From the Facts: I. In a civil proceeding pending since 1976 before the US District Court for the Western District of Virginia the American firm Corning Glass Works as the plaintiff claims from the American petitioner as the defendant damages and injunctive relief because of defendant's alleged infringement of US patents held by plaintiff for optical waveguide fibers, while the petitioner, by way of a counterclaim, claims damages alleging that Corning has misused and abused its patents by entering into restrictive agreements with dominant telecommunications companies in the United States and throughout the world, including the Federal Republic of Germany. Munich Court of Appeals (Oberlandesgericht Mnchen): Munich Court of Appeals (Oberlandesgericht Mnchen) 31.10.1980 Case: 9 VA 3/80 "Discovery I" (IIC 1982, 759) 760

Upon the initiative of the petitioner the American court, with the letter of request of December 17, 1979 to the Bavarian Ministry of Justice based upon the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of March 18, 1970 (77 BGBl. II, 1472), requested that, apart from the examination of witnesses, also numerous documents as identified in Schedule A to the letter of request be produced by the German firms Siemens AG und Siecor GmbH to the attorneys of the parties to the proceeding for examination and for making any number of copies. This latter part of the request for judicial assistance was rejected by the Bavarian Ministry of Justice in its decision of June 2, 1980 (9341 E - I a - 403/80) on the grounds that pursuant to Sec. 14 (1) of the Implementing Act of December 22, 1977 (BGBl. 3105) the letter of request may not be executed in this respect since it concerns a "discovery of documents" to which the reservation of non-execution declared in accordance with Art. 23 Of the Convention refers, and that so far no regulation has been issued pursuant to Sec. 14 (2) of the Implementing Act under which an execution under certain conditions would be possible. With its written statement of July 1, 1980 - received on July 4, 1980 - the petitioner seeks a court review of whether the rejection of the letter of request made known on June 6, 1980 was lawful, and requests that the Ministry of Justice be put under the obligation to comply with the letter of request also with respect to the rejected part since the rejection was unlawful and by it the petitioner' rights were violated. From the Opinion: II.... The petition is not founded.

http://beck-online.beck.de/default.aspx?VPATH=bibdata%2fzeits%2fiic%2f1982%2fc... 1/24/2011

IIC 1982, 759 - beck-online

Page 2 of 3

The rejection of the letter of request of the American court by the Bavarian Ministry of Justice is not unlawful as far as the part is concerned where an order for production of the documents specified in Schedule A of the letter of request is requested from the firms Siemens AG and Siecor GmbH. Rather, according to Sec. 14 (1) of the Implementing Act this was imperative since this part of the letter of request has been issued for the purpose of obtaining "pre-trial discovery of documents" which is subject to the reservation of non-execution referred to in Art. 23 of the Convention and declared by the Federal Government, and since so far no regulation has been issued pursuant to Sec. 14 (2) of the Implementing Act under which the execution also of this part of the letter of request would be possible under certain conditions. The fact that the Bavarian Ministry describes the rejected part of the letter of request generally as a "discovery of documents" does not mean that it misjudged the reservation of non-execution referred to in Art. 23 of the Convention and the prohibition of execution contained in Sec. 14 (1) of the Implementing Act and thus considered not only the "pre-trial discovery of documents" but the "discovery" procedure in general as not capable of execution. This follows clearly from the individual reasons stated for the rejection and from the fact that the Ministry of Justice complied with the remaining part of the letter of request where the examination of witnesses is requested who are employees of Siemens AG and Siecor GmbH. Munich Court of Appeals (Oberlandesgericht Mnchen): Munich Court of Appeals (Oberlandesgericht Mnchen) 31.10.1980 Case: 9 VA 3/80 "Discovery I" (IIC 1982, 759) 761

The subject matter of the rejected part of the letter of request is a "discovery" procedure peculiar to the American law of civil procedure i.e. procedure for obtaining evidence conducted upon the initiative of the parties to a lawsuit, with the aim of using possibly a selection of the evidence in the actual court proceeding. This is correctly set forth by the petitioner itself and is also fully conceivable to this Court.... In the present case it must not be decided in this connection whether an American letter of request not only issued for obtaining documents but also for obtaining other evidence in the "discovery procedure" is, apart from the reservation of non-execution referred to in Art. 23 of the Convention, not capable of execution because of the fact that an exploratory evidence inadmissible under German procedural law or even a violation, in substance or procedure, of the German public policy (ordre public) (Art. 9, para. 2, Art. 12, para. 1 b of the Convention, Art. 30 EGBGB) might be possible. However, beyond that the rejected part of the letter of request is, contrary to the petitioner's opinion, also based upon the specific procedure for obtaining evidence called "pre-trial discovery of documents" the execution of which the Ministry of Justice as the appropriate central authority (Arts. 2, 35, para. 2 of the Convention, Sec. 7 of the Implementing Act and Section B 1 of the publication of June 21, 1979, BGBl. II 780) rightly rejected pursuant to Art. 23 of the Convention and Sec. 14 (1) of the Implementing Act. Contrary to the petitioner's opinion, this cannot be deemed to be no case of "pre-trial discovery of documents" merely because the lawsuit of the petitioner against Corning Glass has been pending before the American court already since 1976 and the American court in its subsequent letter of February 19, 1980 declared (in translation) "that the request was not issued for pre-trial discovery of documents but for the purpose stated in the original request, viz. for the purpose of the trial in this legal proceeding." Because from this letter it also follows that the date for this "trial" was fixed for the beginning of September 1980. The inevitable result of this is, however, that it is not until this trial that the previously discovered evidence is produced at the selection of the parties to the proceeding and examined by the American court with respect to the merits of the plaintiff's claim and the counterclaim. It is self-evident that this examination of the evidence which must first be obtained serves the ultimate purpose of the trials and the decision of the legal proceeding, but already conceptually and according to the methods or systematics of the American civil procedure as they clearly follow from the above-named publications, this does not preclude that the letter of request was indeed issued within the frame and at the stage of the pre-trial procedure for obtaining evidence with respect to the requested production of documents, that is for "pre-trial discovery of documents, " According to all this, the Bavarian Ministry of Justice was right not to comply with the

http://beck-online.beck.de/default.aspx?VPATH=bibdata%2fzeits%2fiic%2f1982%2fc... 1/24/2011

IIC 1982, 759 - beck-online

Page 3 of 3

letter of request for production of documents in accordance with Art. 23 of the Convention and Sec. 14 (1) of the Implementing Act so that the petitioner's rights are not violated by an unlawful administrative judicial act. English translation submitted by Siemens A G.

http://beck-online.beck.de/default.aspx?VPATH=bibdata%2fzeits%2fiic%2f1982%2fc... 1/24/2011