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The principle of production is one of the elementary procedural maxims in civil proceedings. According to this principle, it is the task of each individual party to present and prove the facts that are favourable to him or her. What I claim, I must therefore also be able to prove in an emergency.

This can lead to difficulties, among other things, if the respective evidence is not in one’s own or publicly accessible documents, but is solely in the hands of the litigant.

In order to enable the presentation of evidence nevertheless, the legislator has opened up the possibility of an application for production in § 421 of the Code of Civil Procedure. If documents with which evidence is to be adduced are in the hands of the opposing party, the evidence can be adduced pursuant to § 421 of the Code of Civil Procedure by requesting that the opposing party be ordered to produce the document.

I. Requirements

1. Requirements for the filing of an application

§ 424 of the German Code of Civil Procedure (ZPO) lists the individual criteria for the successful filing of an application within the meaning of § 421 of the ZPO. According to § 424 (1) and (3) ZPO, the external features of the document must be described as precisely as possible. These include features such as the issuer, place and date of issue and the content of the document. In addition, it is required that the facts to be proven by the document must be designated. This serves the court to assess the relevance of the evidence (§ 425 ZPO). Furthermore, according to § 424 (4) ZPO, the application must contain the facts that lead to the assumption that the document is in the hands of the opponent, so that mere assertions about the possession of the opponent are not sufficient. Finally, the reason, i.e. the substantive legal claim, for the obligation to produce the document must be described and made credible (§ 424 (5) ZPO).

2. Document in the hands of the opposing party

According to the wording of the provision, only documents can be the subject of the obligation to produce evidence:

A document is a sensually perceptible embodiment of a legally relevant expression of thought in written characters, e.g. contracts, wills or securities.

Even if electronic documents such as PDFs or other files are not classified as deeds but as objects of inspection within the meaning of § 371 ZPO, an application for production by the opponent may also refer to such evidence, § 371 (2) sentence 2 of the ZPO. The document is “in the hands of the opponent” if it is in his direct or indirect possession or if the opponent himself has a claim for surrender against a third party with regard to the document. However, the mere abstract possibility of the opponent obtaining actual possession is not sufficient for this.

4. Claim for surrender or presentation

Of course, the application alone is not sufficient to impose the desired production on the opponent. It is also necessary to have a further claim for production under § 422 ZPO or a duty to produce under § 423 ZPO.

a. Claim for surrender or production

Pursuant to § 422 ZPO the opponent is obliged to produce the document if the applicant can demand the surrender or production of the document on the basis of a civil right. This refers to all norms of substantive private law, i.e. above all – although not exclusively – those from the Civil Code. These obligations may arise, for example, from

  • the duty of accountability according to § 259 of the German civil code (BGB);
  • the duty to return a promissory note under § 371 BGB;
  • the right of control of a shareholder under § 716 BGB;
  • the right to inspect documents in the case of legal interest under § 810 BGB; or
  • the right to information in the case of infringement of trade mark rights under § 19 MarkenG

arise. In particular, the application under §§ 421, 422 ZPO and § 810 BGB can be a promising means of providing evidence in a lawsuit. The prerequisite for a right under §810 BGB is a legal interest in inspection and the existence of one of the following three cases:

  1. Drawing up the deed in the interest of the person entitled to produce it, i.e. if the deed was intended to serve as evidence for the person providing the evidence;
  2. Notarisation of a legal relationship;
  3. Deed of negotiation including preliminary and subsequent correspondence.

It is not sufficient for the applicant to demand inspection of the document on the basis of vague assumptions in order to gain evidence for the lawsuit. In order to substantiate the legal interest, there must be sufficiently specific indications pointing to the connection between the content of the document and the legal relationship for the clarification of which inspection is requested. This requirement is intended to prevent abusive attempts at inadmissible discovery. In addition, the document and its contents must be described precisely, so that, for example, inspection of entire files cannot be requested. (BGH, NJW 2014, 3312 marginal no. 24 f. )

5. Obligation to produce due to reference

In addition to the purely substantive legal duty of production within the meaning of § 422 ZPO, a procedural duty of production may also arise from § 423 ZPO, which often remains unused. It exists if the opponent has referred to a document in his custody in the course of the proceedings in order to produce evidence. This presupposes that the opposing party refers to the document and wants to use it for evidentiary purposes, whereby use as evidence in its own right should not be mandatory. It is not sufficient, however, if the opposing party has merely referred to the document to supplement or explain his factual submission without substantiating his own argumentation with it. Moreover, in the case of a reference, the opposing party cannot refer to inadmissible discovery, as there is no longer an overriding interest in secrecy. After all, he himself has referred to the document as evidence in connection with the respective proceedings.

II. Consequences of non-production by the opponent

If the opposing party refuses to produce the document although the court has ordered it to be produced, the principle of the prohibition of thwarting the burden of proof applies. The consequence of this is that, within the framework of the free assessment of evidence by the court, either the copy of a document can be accepted as evidence or – if no copy is produced – the assertions of the person providing the evidence can be accepted as proven, § 427 ZPO.