Seizure Of Data And Documents In Internal Investigations In Germany – Status Quo And Conceptual Suggestions For An Investigations-Related Attorney-Client Privilege?

 
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Irritations arose not only in Anglo-American countries, when public prosecutors and other authorities in Germany searched (cooperating) companies and their mandated law firms and confiscated a variety of documents and data. One example of this is the recent search of a law firm by the public prosecutor's office of Munich (Staatsanwaltschaft München II) in charge of the investigation of the so-called "diesel affair". The public prosecutor's office of Munich (Staatsanwaltschaft München II) was instructed by the German Federal Constitutional Court (Bundesverfassungsgericht) in an interim proceeding, to deposit the seized documents and data at the Munich District Court (Landgericht München). For the time being the documents cannot be reviewed. A final assessment of whether the public prosecutor's office is allowed to review and use the documents will be issued by the Federal Constitutional Court. The Federal Constitutional Court already indicated that the primarily focus will be on the extent to which the relationship between attorney and client is protected by fundamental rights.

In this post, we analyze the status quo and provide conceptual suggestions for an investigations-related attorney-client privilege. A more detailed version of our analysis (in German language) was published in CCZ 2017, 242.

  1. There is no formal corporate criminal law in Germany - but the consequences for companies are just as severe

    At present, companies cannot be held criminally liable under German law. But in many cases, the sanctions, in particular fines and confiscations, merely have a different label but are just as severe as if they were criminal sanctions. At the same time, since there is no clear legislative guidance on how to sanction companies, it is challenging to effectively defend companies. Compared to US criminal law, no "leading cases" or "sentencing guidelines" bind the German prosecutors.

  2. Attorney-client relationship is less protected in Germany - so far

    Under German law, an attorney-client privilege or work product-doctrine do not exist. The main boundaries for public authorities can be found in the German Code of Criminal Procedure. Several sections protect the work of an attorney in connection with criminal procedures. But these sections do not expressly protect companies from a seizure of data or documents in connection with internal investigations:

    i) If related to the engagement, attorneys may refuse to give testimony and thus an...

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