Cross-Border Discovery and Witness Considerations in Germany and Japan

By on March 27, 2020

Executive Summary of an article written by
Sara Alexandre
Swift, Currie, McGhee & Hiers, LLP

Products are an inextricable component of life, but it is only when something goes wrong that an action is filed and the design and manufacturing comes under scrutiny. Often, key documents and witnesses connected to products in dispute are situated within three manufacturing giants: the U.S., Germany and Japan. Parties conducting transnational litigation out of the U.S. court system face a plethora of obstacles and restrictions when seeking to obtain documents and testimony from other countries, including Germany and Japan. 

Discovery as contemplated within the U.S. does not exist in Germany. Before judgment, the court uses its discretion as to the evidence it will permit, and the witnesses it will allow to offer testimony. Private litigants and their legal counsel are precluded from engaging in evidence taking, as it is considered a public judicial function.

Japan’s legal system is modeled after Germany’s. Pre-trial discovery is considered superfluous. Only the court has the power to direct the collection of evidence. The Consular Convention between Japan and the U.S. facilitates the taking of evidence but does not entitle U.S. attorneys to obtain testimony or evidence; they must rely on the willingness of witnesses to voluntarily offer information. A court will not grant evidentiary status to information obtained without the court’s involvement; and should the Japanese court decide a U.S. attorney’s method of evidence collection has exceeded what the Consular Convention allows, the court is authorized to refuse enforcement of any judgment.

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