Depositions in Germany: Important Takeaways for Attorneys

For attorneys accustomed to U.S.-style litigation, the concept of depositions in Germany can be a bit of a legal curveball. Unlike in the U.S., where depositions are a cornerstone of pretrial discovery, Germany’s legal system takes a different approach—one that significantly limits the ability to conduct witness questioning outside of court.

If you're representing a client with interests in Germany or working on an international case, understanding how depositions function (or don’t function) in the German legal landscape is essential. Let’s dive into the key differences, challenges, and solutions attorneys should consider when dealing with depositions in Germany.

Depositions Are Not Part of German Civil Procedure

One of the biggest surprises for foreign attorneys is that Germany does not have a formal deposition process as part of its civil litigation system. German courts rely on a judge-led inquiry model, where witness testimony is taken during trial proceedings rather than in pretrial discovery.

Attorney Takeaway:

If you need to gather testimony from a witness in Germany, you’ll likely have to do so through judicial channels, such as a request under the Hague Evidence Convention.

The Hague Evidence Convention: Your Best Option

Since Germany does not allow U.S.-style depositions, the primary legal mechanism for obtaining testimony is the Hague Evidence Convention. This international treaty enables foreign courts to request the collection of evidence, including witness testimony, from German nationals.

Attorney Takeaway:

Be prepared for a slower, more bureaucratic process when requesting testimony under the Hague Evidence Convention. These requests must be made through diplomatic channels and are subject to German legal standards.

Voluntary Depositions Are Possible—but Limited

In some cases, a witness in Germany may be willing to provide testimony voluntarily. This is often done before a U.S. consular official at the U.S. Embassy or through remote testimony. However, German law imposes strict limitations, and coercing a witness to testify without judicial approval can lead to legal complications.

Attorney Takeaway:

If you plan to take a voluntary deposition in Germany, ensure that the witness understands their rights and limitations under German law. It’s best to consult a German legal expert to avoid potential issues.

No Compelled Testimony Without Judicial Oversight

German law protects witnesses from being compelled to testify outside of a formal judicial proceeding. Unlike in the U.S., where failure to appear for a deposition can lead to legal sanctions, Germany does not recognize foreign subpoenas unless they go through the proper legal channels.

Attorney Takeaway:

If you need compelled testimony from a German witness, you must go through the German courts or obtain assistance through the Hague Evidence Convention. Directly issuing a subpoena will not be enforceable.

Remote Testimony and Workarounds

With the rise of virtual hearings and remote work, many attorneys explore video depositions as an alternative. While Germany is generally restrictive, some courts may allow video testimony under certain conditions, particularly if it aligns with EU regulations on cross-border legal cooperation.

Attorney Takeaway:

If you need to depose a witness remotely, check whether the relevant German authorities will permit it. Some courts may allow testimony via video conference if it complies with German and EU legal frameworks.

Final Thoughts

Handling depositions in Germany requires an understanding of international legal frameworks and the limitations of Germany’s civil procedure. While depositions as they exist in the U.S. are not part of the German system, attorneys can still gather testimony through judicial cooperation, voluntary means, or remote options where permitted.

Navigating these legal hurdles may be challenging, but with proper planning, international cooperation, and knowledge of the Hague Evidence Convention, attorneys can effectively manage cross-border litigation and witness testimony in Germany.

FAQs About Depositions in Germany

Are depositions legally recognized in Germany?

No, Germany does not have a U.S.-style deposition process. Witness testimony is typically taken in court under judicial supervision.

Can I take a voluntary deposition in Germany?

Yes, but only under specific conditions. A witness may provide testimony voluntarily, but it cannot be compelled without judicial approval.

How can I obtain testimony from a witness in Germany?

The best approach is to file a request under the Hague Evidence Convention, which allows for judicially approved witness testimony.

Can a U.S. attorney issue a subpoena to a German witness?

No, U.S. subpoenas are not enforceable in Germany. You must go through the German legal system or request assistance via the Hague Evidence Convention.

Can depositions be conducted remotely from Germany?

In some cases, yes. However, German authorities may impose restrictions, so it’s crucial to verify legal compliance before proceeding.

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