[co-author: Alexander McKerrow, Trainee]
The concept of legal privilege between a lawyer and his client is not recognised in the same way under German law as it is in common law jurisdictions.
In particular, the jurisprudence of the German courts has until now been unclear as to whether documents obtained at a law firm advising its client on an internal investigation are protected from the seizure by and scrutiny of public authorities.
For the first time, the constitutional court in Germany has now clarified its position on the scope and application of legal privilege in internal investigations in Germany. The background of the case relates to the diesel emissions scandal. The law firm Jones Day was engaged by one of the car manufacturers to carry out internal investigations, initially in the context of criminal proceedings in the United States which led to a settlement with the U.S. Department of Justice. In March 2017, the local prosecution authority in Munich searched the premises of the law firm and seized a substantial number of documents which related to the internal investigations, including memoranda documenting interviews with employees of the carmaker. The law firm's challenge of the seizure was rejected by the courts in Munich.
On 6 July 2018, the constitutional court decided to not pursue the complaint further. A subcommittee of the constitutional court held that the local prosecution authority’s seizure of documents from the Munich office of Jones Day did not require the court’s intervention as a matter of German constitutional law. Although the documents seized are generally protected by the fundamental right of self-determination of the car manufacturer, this right is subject to limits as set out in the German Criminal Code. As the car manufacturer was not subject to criminal proceedings when the documents were seized, it did not enjoy the protections against seizure provided under the German Criminal Code.
Further, the constitutional court held that the law firm Jones Day does not have standing to lodge a constitutional complaint, as its principal office is not located in the EU or another Member State. A partner and two employees of Jones Day also lack standing under the German constitution.
