Internal investigations documents exempt from seizure

In its decision of 21 July 2015 (ref: 6 Qs 116/15), Braunschweig Regional Court declared the seizure of documents produced by a law firm as part of an internal investigation to be unlawful. The seizure prohibition is to apply also when the documents are in the company’s custody. Documents produced as part of an internal investigation are to be classified as defence documents under Sections 97, 148 Code of Criminal Procedure and thus enjoy exemption from seizure established by judicial decisions and going beyond Section 97 (2) sentence 1 Code of Criminal Procedure. In terms of time, this protection also extends to the time before commencement of criminal or administrative offence proceedings, according to the decision.

Conducting internal investigations to clear up suspected tortious cases within a company is nowadays seen as an integral part of an effective compliance system. Therefore the decision is very important to the practice of internal investigations

Judicial decisions to date had only occasionally expressed an opinion on the protection of the findings obtained and in each case put forward the view that documents in this type of context do not relate to any specific defence relationship and do not therefore come under the prohibition on seizure as defence documents: 

Hamburg Regional Court (decision of 15 October 2010 – 608 Qs 18/10) had to apply the old legal position prior to amendment of Section 160a Code of Criminal Procedure. Here it held the opinion that a client relationship between a legal person and a person subject to professional confidentiality does not extend to the legal person’s executive bodies and therefore no protected relationship of trust can arise which is decisive for a prohibition on seizure. Documents, too, which are stored in the safekeeping area in a law firm commissioned with an internal investigation, should accordingly not be subject to a prohibition on seizure.

After the amended version of Section 160a Code of Criminal Procedure came into force on 1 February 2011, Mannheim Regional Court (decision of 3 July 2012 – 24 Qs 1/12; 24 Qs 2/12) had to decide on the issue of the ability to seize client documents in connection with internal investigations. In the view of Mannheim Regional Court, through this amended version of Section 160a Code of Criminal Procedure, other client documents within the meaning of Section 97 (1) (3) Code of Criminal Procedure are given equal status and are thus exempt from seizure in the safekeeping area of the law firm as long as they have not been put there improperly. However, more far-reaching protection was rejected. Documents produced on behalf of the company which itself could only potentially be involved as a secondary party to criminal proceedings are not defence documents.

The decision of Braunschweig Regional Court clearly runs counter to this and argues that the commencement of investigative proceedings against the person concerned is not necessary for the existence of a relationship of trust worth protecting within the framework of the seizure prohibition under Sections 87, 148 Code of Criminal Procedure. Simply the fear that administrative offence proceedings could be initiated against a legal person is enough. Preparing the facts by way of an internal investigation can be a key element in preparing an effective defence without specific defence strategies having to be put forward. Braunschweig Regional Court thus comes to the conclusion that documents produced as part of an internal investigation cannot be seized even if they are found at the company itself.