JONES DAY PRESENTS®: Trade Secret Enforcement in Germany
Recent changes to German laws are expected to facilitate trade secret litigation. Dr. Christian Paul, a Munich-based partner, explains why these actions still require careful consideration of German procedural law, with a focus on evidence preparation, and an emphasis on clearly establishing a case prior to filing.
Read the full transcript below:
Dr. Christian Paul:
In Germany, trade secret litigation is very complex. In the past we had to deal with problems that related to confidentiality. Under German litigation, keeping the trade secret actually confidential while in court was a big challenge. We had changes in the law, which address these issues. This will actually help to facilitate the trade secret litigation in Germany.
Dr. Christian Paul:
But most important, trade secret litigation in Germany requires that you consider a German procedural law. Under German law, the litigation is very much front-loaded, which means you have to prepare your evidence in advance. You have to establish your case, have the evidence ready before you file your complaint. Very unlike in other jurisdictions, German litigation requires that you do a lot of preparation, get the evidence ready by the means that are available to you, and then consider filing your complaint, which gives us an opportunity to think out of the box and use techniques of getting evidence in other jurisdictions, such as, for example, discovery motions in the US, so section 1782 proceedings, for example, come into play, allow you to gather evidence abroad, which later on can be introduced into German litigation.
Dr. Christian Paul:
If you want to defend against a trade secret case, you need to make sure that you do a thorough investigation of the facts. Unlike in other jurisdictions, you cannot rely on discovery as such. If you want to use that strategically, you have to indeed cooperate with your colleagues and get the knowledge maybe in other jurisdictions or other practice groups. With the new law, we expect to see a large increase in trade secret litigation, but in Germany trade secret litigation requires that you have your case prepared from the beginning and that you also can define what the trade secret is. It's paramount as preparation of trade secret owners that you consider how to protect your trade secret before a case comes to court.
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