	Lex Mundi Global Attorney-Client Privilege Guide
	Germany
	(Europe) Firm Noerr Updated 17 Feb 2020
Is the ACP recognized in your jurisdiction?	No, ACP is not recognized in Germany.
If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...	[1] As there is no disclosure or discovery of documents in German civil proceedings (or equivalent process compelling parties to proceedings to exchange documents), ACP and other types of privilege are not required. In general, each party to the proceeding must produce the documents and other evidence upon which they rely and in accordance with their burden of proof (the principle of party presentation). Exceptionally, a court may order the production of certain documents that are in the possession of a party or a third party. First, according to sections 422, 425 of the German Code of Civil Procedure (Zivilprozessordnung or “ZPO”) a court must order production of certain documents by the opposing party where, cumulatively, such documents are required for the defence of the party requesting that order, these documents are not available to that party and that party has a claim for production under the applicable substantive law. Second, a court may also order a party or a third party to produce certain documents within the possession of this party by virtue of section 142 para. 1 of the German Code of Civil Procedure (ZPO). However, due to its strict prerequisites, the scope of section 142 of the German Code of Civil Procedure (ZPO) is very limited. A court is not allowed to issue the order ex officio. Instead, one of the parties to the proceeding must refer to the document which shall be produced in a way which allows to identify this document. The party referring to the document is obliged to explain why this document is relevant to the proceeding. As opposed to sections 422, 425 of the German Code of Civil Procedure (ZPO), no claim for production under the applicable substantive law is necessary. However, the court has discretion as to whether to issue a section 142-order. If the order is issued against a third party (e.g. the lawyer of a party), this party can refuse the production of the documents if the third party has the right to refuse testimony on the information contained in these documents, or if the production would be unreasonable (section 142 para. 2 of the German Code of Civil Procedure (ZPO)). If the order is issued against one of the parties to the proceeding, this party cannot rely on section 142 para. 2. However, when exercising the aforementioned discretion, the court has to evaluate whether it would be unreasonable to demand production of documents from a party in general. In most cases it is considered to be unreasonable to demand the production of documents from a party which contain communications between this party and its lawyer. Although there is no ACP, professional confidentiality between a lawyer and their client is a fundamental principle of German law. In this context, there are rules of professional confidentiality that enable a lawyer or a client to withhold attorney-client communications or work product prepared by a lawyer. However, in practice, these rules are less significant in the context of litigation, as there is no general duty of disclosure. In summary: A lawyer is always bound by professional confidentiality and therefore is not obliged or permitted to disclose any knowledge that they gained in the course of their attorney-client relationship (section 43a para. 2 of the Federal Lawyer’s Act (Bundesrechtsanwaltsordnung or “BRAO”)). A lawyer has the right to refuse to testify on facts concerning their client (section 383 para. 1 no. 6 of the German Code of Civil Procedure (ZPO)). In respect of documents in the custody of a lawyer, the court cannot order the lawyer to produce those documents, as lawyers are generally not under an obligation to produce such material to the extent they are also entitled to refuse to testify pursuant to sections 383 to 385 of the German Code of Civil Procedure (ZPO) (see also response to question 3 below and section 142(2) of the German Code of Civil Procedure (ZPO)). The disclosure of client information by a lawyer is a criminal offence (section 203 para. 1 no. 3 of the German Criminal Code (Strafgesetzbuch or “StGB”). As there is no disclosure in Germany, the client is not required to disclose all information known to the client. However, if they decide to disclose information, they are required to tell the truth (section 138 para. 1 of the German Code of Civil Procedure (ZPO)). If obtained legally, a party to civil proceedings is not prevented from using another party’s confidential information. Notes: [1] This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.
Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?	Broadly speaking, the professional confidentiality rules which apply to civil proceedings also apply in criminal proceedings (for example, section 53 para. 1 no. 2, and 3 of the German Code of Criminal Procedure (StPO) provides that a (defence) lawyer can refuse to testify against their client). An accused has the right to free and uncontrolled communication (oral and written) with his defence lawyer (section 148 of the German Code of Criminal Procedure (StPO)). In addition, in the context of criminal proceedings, communications between an accused and their defense lawyer generally cannot be seized during a criminal investigation (section 97 para. 1 of the German Code of Criminal Procedure (StPO)). However, this restriction only applies if the documents are in custody of the defence lawyer. Furthermore, it does not apply if the defence lawyer is suspected of being a participant in the investigated crime or in a criminal offence as provided for in sections 202d, 257, 258, 259 of the German Criminal Code (StGB) or if the items protected by section 97 originate from a crime or if they are used or intended to be used in a crime (section 97 para. 2. of the German Code of Criminal Procedure (StPO). In general, government authorities may thus not require disclosure of attorney-client communications and legal work product. However, the precise scope of this principle has come into question recently in the context of the seizure of documents from a German office of a US law firm by the Munich prosecutors. In this case, the Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) held the seizure of the documents from the law firm was legal unless the firm’s client is a suspect in the criminal investigation concerned or is subject to proceedings for an administrative fine or for the confiscation of property. Investigations against a lawyer are restricted if there is a risk of exposing knowledge that is covered by the professional right to confidentiality (section 160a of the German Code of Criminal Procedure (StPO)). In particular, surveillance of lawyers is prohibited (section 100d para. 5 of the German Code of Criminal Procedure (StPO)).
In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)	N/A - there is no ACP in Germany.
Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?	N/A - there is no ACP in Germany.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Whilst in-house counsel are under a professional duty of confidentiality (sections 46c para. 1, 43a para. 2 of the Federal Lawyer’s Act (BRAO)), the rules on professional confidentiality differ between in-house and external counsel. However, as previously noted, since there is no disclosure in German proceedings, in-house counsel would not need to rely on professional confidentiality in order that documents could be withheld from production in civil proceedings. The key differences are: In criminal proceedings, in-house counsel cannot refuse testimony on matters learned as a result of their role (section 53 para. 1 no. 3 of the German Code of Criminal Procedure (StPO)). Based on this, also the aforementioned rights in sections 97 (documents between an accused and their defence lawyer are not subject to seizure), 100d para. 5 (no surveillance of a lawyer) and 160a (no investigations against a lawyer) of the German Code of Criminal Procedure (StPO) are not applicable to in-house counsel. Since in-house counsel are not allowed to be the defence lawyers of their corporation and the corporation’s employees (section 46c para. 2 sentence 2 of the Federal Lawyer’s Act (BRAO)) they also cannot rely on the rights as provided for in section 148 of the German Code of Criminal Procedure (StPO) (right to free and uncontrolled communication between an accused and their defence lawyer). In-house counsel cannot rely on professional confidentiality in investigations conducted by the European Commission because of a violation of European antitrust law. This is due to the fact that an in-house counsel depends (esp. economically) on his “client” because an in-house counsel is bound by an employment contract. In-house counsel, however, have the right to refuse testimony and the production of documents in civil proceedings (sections 383 para. 1 no. 6, 142 para. 2 of the German Code of Civil Procedure (ZPO)).
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Yes, in-house counsel are allowed to be active members of the bar association according to section 46a of the Federal Lawyer’s Act (BRAO). However, there are different types of memberships for in-house counsel and lawyers in private practice. It should also be noted there is no central bar association in Germany. Each district has its own association (e.g. the Bar Association Munich (Rechtsanwaltskammer für den OLG-Bezirk München)).
Is the common interest doctrine recognized in your jurisdiction?	No, the common interest doctrine is not recognized in Germany. This is not required as there is no disclosure of documents. In general, a lawyer is bound by the duty of confidentiality and can only share documents with a third party with permission from their client. If the client decides to share documents with a third party, this may be deemed to be a waiver of confidentiality (although only a limited waiver that extends to the third party recipient).
How is the doctrine articulated in your jurisdiction?	N/A
Must a common interest agreement be in writing?	N/A
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Third-party litigation funding in general is permitted. There are currently no specific professional rules which are applicable and litigation funders are not overseen by any public authority. There are a small number of court decisions relating to the conduct of third-party litigation funding, for example, relating to the share of the proceeds that the funder is entitled to seek. In general, a share of 30% has been accepted as standard. However, the Higher Regional Court of Munich (Oberlandesgericht München or “OLG München”) has also upheld an agreement whereby the litigation funder was entitled to a share of 50% (see OLG München, judgement of 31 March 2015, case no. 15 U 2227/14, published in NJW-RR 2015, 1333, 1335). Lawyers are not allowed to fund litigation in their own interest (section 49b para. 2 sentence 2 of the Federal Lawyer’s Act (BRAO)). On a related matter, although beyond the scope of this question, the selling of claims is permitted in Germany. The German Federal Court of Justice (Bundesgerichtshof or “BGH”) has recently confirmed the possibility of third parties to commercially lodge assigned consumer claims in their own name under an agreement of a contingency fee. Critical is the extent to which this third party engages in providing legal advice (see BGH, judgement of 27 November 2019, case no. VIII ZR 285/18).
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	There is no ACP or work product protection in Germany. As there is no general disclosure obligation, the courts have not been required to address whether communications with litigation funders are protected. However, in connection with this question: The disclosure of litigation funding is not required by law. Usually, the parties of a litigation funding contract agree on non-disclosure of their relationship. Such a non-disclosure agreement does not give the right for the litigation funder to refuse testimony in civil proceedings (section 383 para. 1 of the German Code of Civil Procedure (ZPO)) or in criminal proceedings (section 53 para. 1 no. 2, 3 of the German Code of Criminal Procedure (StPO)).
Is the crime-fraud exception recognized in your jurisdiction?	Although there is no doctrine of privilege in Germany as communications do not need to be disclosed in proceedings, the courts have held in specific cases that the duty of professional confidentiality may be overridden by reasons of public interest, including the prosecution of serious crimes. In addition, specific statutory provisions may provide that communications in furtherance of an on-going or future crime are discoverable: A lawyer cannot rely on his rights under sections 97 (documents between a lawyer and client are not subject to seizure), 100d (no surveillance of a lawyer) and 160a (no investigations against a lawyer) of the German Code of Criminal Procedure (StPO) if he is suspected of being a participant in the investigated crime or in a criminal offence as provided for in sections 202d, 257, 258, 259 of the German Criminal Code (StGB) (or, for the purpose of section 97, if the items protected by section 97 originate from a crime or if they are used or intended to be used in a crime) (sections 97 para. 2 sentence 2, 100d para. 5 sentence 3, 160a para. 4 sentence 1 of the German Code of Criminal Procedure (StPO)). In the case of an incarcerated accused, section 148 para. 2 of the German Code of Criminal Procedure (StPO) limits the right to confidentiality in cases regarding the formation of terrorist organizations. Under these circumstances, communications between the accused and his defense counsel are subject to review by a court.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	See above
Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)	There is no statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. Such a rule is not considered necessary as there is no disclosure in Germany.
What are the elements of the protection in your jurisdiction?	N/A (see above)
Does your jurisdiction recognize an accountant-client privilege?	No, Germany does not recognize an accountant-client privilege. However, accountants have an obligation/right to professional confidentiality to the same extent as lawyers (section 43 para. 1 of the German Accountants’ Code (Wirtschaftsprüferordnung or WiPrO).
Does your jurisdiction recognize a mediation privilege?	No, Germany does not recognize a mediation privilege. However, those involved in the mediation have an obligation/right to confidentiality according to section 4 of the German Mediation Code (Mediationsgesetz or MediationsG).
Does your jurisdiction recognize a settlement negotiation privilege?	No, Germany does not recognize a settlement negotiation privilege and it is possible that documents exchanged during settlement discussions could be provided to the court. In practice, it is advisable to enter into a confidentiality agreement before engaging in settlement negotiations and communications in this regard should be identified as being made on a “without prejudice basis”.

Lex Mundi Global Attorney-Client Privilege Guide

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Is the ACP recognized in your jurisdiction?

No, ACP is not recognized in Germany.

If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...

[1] As there is no disclosure or discovery of documents in German civil proceedings (or equivalent process compelling parties to proceedings to exchange documents), ACP and other types of privilege are not required. In general, each party to the proceeding must produce the documents and other evidence upon which they rely and in accordance with their burden of proof (the principle of party presentation). Exceptionally, a court may order the production of certain documents that are in the possession of a party or a third party. First, according to sections 422, 425 of the German Code of Civil Procedure (Zivilprozessordnung or “ZPO”) a court must order production of certain documents by the opposing party where, cumulatively, such documents are required for the defence of the party requesting that order, these documents are not available to that party and that party has a claim for production under the applicable substantive law.

Second, a court may also order a party or a third party to produce certain documents within the possession of this party by virtue of section 142 para. 1 of the German Code of Civil Procedure (ZPO). However, due to its strict prerequisites, the scope of section 142 of the German Code of Civil Procedure (ZPO) is very limited. A court is not allowed to issue the order ex officio. Instead, one of the parties to the proceeding must refer to the document which shall be produced in a way which allows to identify this document. The party referring to the document is obliged to explain why this document is relevant to the proceeding. As opposed to sections 422, 425 of the German Code of Civil Procedure (ZPO), no claim for production under the applicable substantive law is necessary. However, the court has discretion as to whether to issue a section 142-order. If the order is issued against a third party (e.g. the lawyer of a party), this party can refuse the production of the documents if the third party has the right to refuse testimony on the information contained in these documents, or if the production would be unreasonable (section 142 para. 2 of the German Code of Civil Procedure (ZPO)). If the order is issued against one of the parties to the proceeding, this party cannot rely on section 142 para. 2. However, when exercising the aforementioned discretion, the court has to evaluate whether it would be unreasonable to demand production of documents from a party in general. In most cases it is considered to be unreasonable to demand the production of documents from a party which contain communications between this party and its lawyer.

Although there is no ACP, professional confidentiality between a lawyer and their client is a fundamental principle of German law. In this context, there are rules of professional confidentiality that enable a lawyer or a client to withhold attorney-client communications or work product prepared by a lawyer. However, in practice, these rules are less significant in the context of litigation, as there is no general duty of disclosure. In summary:

A lawyer is always bound by professional confidentiality and therefore is not obliged or permitted to disclose any knowledge that they gained in the course of their attorney-client relationship (section 43a para. 2 of the Federal Lawyer’s Act (Bundesrechtsanwaltsordnung or “BRAO”)).
A lawyer has the right to refuse to testify on facts concerning their client (section 383 para. 1 no. 6 of the German Code of Civil Procedure (ZPO)).
In respect of documents in the custody of a lawyer, the court cannot order the lawyer to produce those documents, as lawyers are generally not under an obligation to produce such material to the extent they are also entitled to refuse to testify pursuant to sections 383 to 385 of the German Code of Civil Procedure (ZPO) (see also response to question 3 below and section 142(2) of the German Code of Civil Procedure (ZPO)).
The disclosure of client information by a lawyer is a criminal offence (section 203 para. 1 no. 3 of the German Criminal Code (Strafgesetzbuch or “StGB”).
As there is no disclosure in Germany, the client is not required to disclose all information known to the client. However, if they decide to disclose information, they are required to tell the truth (section 138 para. 1 of the German Code of Civil Procedure (ZPO)).
If obtained legally, a party to civil proceedings is not prevented from using another party’s confidential information.

Notes:

[1] This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.

Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?

Broadly speaking, the professional confidentiality rules which apply to civil proceedings also apply in criminal proceedings (for example, section 53 para. 1 no. 2, and 3 of the German Code of Criminal Procedure (StPO) provides that a (defence) lawyer can refuse to testify against their client).

An accused has the right to free and uncontrolled communication (oral and written) with his defence lawyer (section 148 of the German Code of Criminal Procedure (StPO)).

In addition, in the context of criminal proceedings, communications between an accused and their defense lawyer generally cannot be seized during a criminal investigation (section 97 para. 1 of the German Code of Criminal Procedure (StPO)). However, this restriction only applies if the documents are in custody of the defence lawyer. Furthermore, it does not apply if the defence lawyer is suspected of being a participant in the investigated crime or in a criminal offence as provided for in sections 202d, 257, 258, 259 of the German Criminal Code (StGB) or if the items protected by section 97 originate from a crime or if they are used or intended to be used in a crime (section 97 para. 2. of the German Code of Criminal Procedure (StPO). In general, government authorities may thus not require disclosure of attorney-client communications and legal work product. However, the precise scope of this principle has come into question recently in the context of the seizure of documents from a German office of a US law firm by the Munich prosecutors. In this case, the Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) held the seizure of the documents from the law firm was legal unless the firm’s client is a suspect in the criminal investigation concerned or is subject to proceedings for an administrative fine or for the confiscation of property.

Investigations against a lawyer are restricted if there is a risk of exposing knowledge that is covered by the professional right to confidentiality (section 160a of the German Code of Criminal Procedure (StPO)). In particular, surveillance of lawyers is prohibited (section 100d para. 5 of the German Code of Criminal Procedure (StPO)).

In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)

N/A - there is no ACP in Germany.

Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?

N/A - there is no ACP in Germany.

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

Whilst in-house counsel are under a professional duty of confidentiality (sections 46c para. 1, 43a para. 2 of the Federal Lawyer’s Act (BRAO)), the rules on professional confidentiality differ between in-house and external counsel. However, as previously noted, since there is no disclosure in German proceedings, in-house counsel would not need to rely on professional confidentiality in order that documents could be withheld from production in civil proceedings. The key differences are:

In criminal proceedings, in-house counsel cannot refuse testimony on matters learned as a result of their role (section 53 para. 1 no. 3 of the German Code of Criminal Procedure (StPO)). Based on this, also the aforementioned rights in sections 97 (documents between an accused and their defence lawyer are not subject to seizure), 100d para. 5 (no surveillance of a lawyer) and 160a (no investigations against a lawyer) of the German Code of Criminal Procedure (StPO) are not applicable to in-house counsel.
Since in-house counsel are not allowed to be the defence lawyers of their corporation and the corporation’s employees (section 46c para. 2 sentence 2 of the Federal Lawyer’s Act (BRAO)) they also cannot rely on the rights as provided for in section 148 of the German Code of Criminal Procedure (StPO) (right to free and uncontrolled communication between an accused and their defence lawyer).
In-house counsel cannot rely on professional confidentiality in investigations conducted by the European Commission because of a violation of European antitrust law. This is due to the fact that an in-house counsel depends (esp. economically) on his “client” because an in-house counsel is bound by an employment contract.
In-house counsel, however, have the right to refuse testimony and the production of documents in civil proceedings (sections 383 para. 1 no. 6, 142 para. 2 of the German Code of Civil Procedure (ZPO)).

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

Yes, in-house counsel are allowed to be active members of the bar association according to section 46a of the Federal Lawyer’s Act (BRAO). However, there are different types of memberships for in-house counsel and lawyers in private practice.

It should also be noted there is no central bar association in Germany. Each district has its own association (e.g. the Bar Association Munich (Rechtsanwaltskammer für den OLG-Bezirk München)).

Is the common interest doctrine recognized in your jurisdiction?

No, the common interest doctrine is not recognized in Germany. This is not required as there is no disclosure of documents. In general, a lawyer is bound by the duty of confidentiality and can only share documents with a third party with permission from their client. If the client decides to share documents with a third party, this may be deemed to be a waiver of confidentiality (although only a limited waiver that extends to the third party recipient).

How is the doctrine articulated in your jurisdiction?

N/A

Must a common interest agreement be in writing?

N/A

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

Third-party litigation funding in general is permitted. There are currently no specific professional rules which are applicable and litigation funders are not overseen by any public authority. There are a small number of court decisions relating to the conduct of third-party litigation funding, for example, relating to the share of the proceeds that the funder is entitled to seek. In general, a share of 30% has been accepted as standard. However, the Higher Regional Court of Munich (Oberlandesgericht München or “OLG München”) has also upheld an agreement whereby the litigation funder was entitled to a share of 50% (see OLG München, judgement of 31 March 2015, case no. 15 U 2227/14, published in NJW-RR 2015, 1333, 1335).

Lawyers are not allowed to fund litigation in their own interest (section 49b para. 2 sentence 2 of the Federal Lawyer’s Act (BRAO)).

On a related matter, although beyond the scope of this question, the selling of claims is permitted in Germany. The German Federal Court of Justice (Bundesgerichtshof or “BGH”) has recently confirmed the possibility of third parties to commercially lodge assigned consumer claims in their own name under an agreement of a contingency fee. Critical is the extent to which this third party engages in providing legal advice (see BGH, judgement of 27 November 2019, case no. VIII ZR 285/18).

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

There is no ACP or work product protection in Germany. As there is no general disclosure obligation, the courts have not been required to address whether communications with litigation funders are protected. However, in connection with this question:

The disclosure of litigation funding is not required by law. Usually, the parties of a litigation funding contract agree on non-disclosure of their relationship.
Such a non-disclosure agreement does not give the right for the litigation funder to refuse testimony in civil proceedings (section 383 para. 1 of the German Code of Civil Procedure (ZPO)) or in criminal proceedings (section 53 para. 1 no. 2, 3 of the German Code of Criminal Procedure (StPO)).

Is the crime-fraud exception recognized in your jurisdiction?

Although there is no doctrine of privilege in Germany as communications do not need to be disclosed in proceedings, the courts have held in specific cases that the duty of professional confidentiality may be overridden by reasons of public interest, including the prosecution of serious crimes.

In addition, specific statutory provisions may provide that communications in furtherance of an on-going or future crime are discoverable:

A lawyer cannot rely on his rights under sections 97 (documents between a lawyer and client are not subject to seizure), 100d (no surveillance of a lawyer) and 160a (no investigations against a lawyer) of the German Code of Criminal Procedure (StPO) if he is suspected of being a participant in the investigated crime or in a criminal offence as provided for in sections 202d, 257, 258, 259 of the German Criminal Code (StGB) (or, for the purpose of section 97, if the items protected by section 97 originate from a crime or if they are used or intended to be used in a crime) (sections 97 para. 2 sentence 2, 100d para. 5 sentence 3, 160a para. 4 sentence 1 of the German Code of Criminal Procedure (StPO)).
In the case of an incarcerated accused, section 148 para. 2 of the German Code of Criminal Procedure (StPO) limits the right to confidentiality in cases regarding the formation of terrorist organizations. Under these circumstances, communications between the accused and his defense counsel are subject to review by a court.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

See above

Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)

There is no statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. Such a rule is not considered necessary as there is no disclosure in Germany.

What are the elements of the protection in your jurisdiction?

N/A (see above)

Does your jurisdiction recognize an accountant-client privilege?

No, Germany does not recognize an accountant-client privilege. However, accountants have an obligation/right to professional confidentiality to the same extent as lawyers (section 43 para. 1 of the German Accountants’ Code (Wirtschaftsprüferordnung or WiPrO).

Does your jurisdiction recognize a mediation privilege?

No, Germany does not recognize a mediation privilege. However, those involved in the mediation have an obligation/right to confidentiality according to section 4 of the German Mediation Code (Mediationsgesetz or MediationsG).

Does your jurisdiction recognize a settlement negotiation privilege?

No, Germany does not recognize a settlement negotiation privilege and it is possible that documents exchanged during settlement discussions could be provided to the court. In practice, it is advisable to enter into a confidentiality agreement before engaging in settlement negotiations and communications in this regard should be identified as being made on a “without prejudice basis”.

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