A company suspected a competitor and its managing director of violating trade secrets. According to the accusation, the managing director took construction documents with him and used them for the competitor, the current respondent. The competitor’s managing director had previously worked as an employee of the company now suing. This therefore requested an independent evidentiary procedure as part of a “Düsseldorf procedure”. The court ordered a written report to be obtained and obliged the company to maintain confidentiality. It classified your documents as requiring confidentiality.
After the report was ready, the applicant company’s lawyers wanted a copy. Both respondents, i.e. the competing company and its managing director, opposed this and insisted on its classification as requiring secrecy according to § 16 GeschGehG. The Regional Court of Augsburg agreed with them. The applicant asked the LG to revoke the confidentiality orders and to release the report to her lawyers. The LG then allowed the lawyers to only give their client a redacted version without any attachments. It didn’t help the company’s immediate complaint. Finally, the Munich Higher Regional Court extended the publication of the report to include its appendices in addition to the legal complaint admitted by the LG. What was particularly controversial, however, was whether these legal remedies were even possible.
In the course of the admissibility test, the BGH finds that the parties have complied with the LG’s decision to maintain secrecy despite § 20 Abs. 5 P. 4 GeschGehG could be challenged with an immediate complaint. The provision stipulates that the classification of information as requiring confidentiality and the ordering of access restrictions by the court can only be challenged together with the appeal in the main proceedings.
Although trade secret disputes within the meaning of § 16 Abs. 1 According to the Senate, GeschGehG also includes independent evidentiary procedures. The provision of § 20 Abs. 5 S. 4 GeschGehG does not apply in independent evidentiary proceedings. A lawsuit that would perhaps follow the independent evidentiary procedure cannot be viewed as the main matter within the meaning of the norm (BGH, decision of November 9, 2023 – I ZB 32/23). You can submit an application for independent collection of evidence to the court responsible for the main case, but you don’t have to. Rather, legal proceedings should be avoided if possible by initiating an independent evidentiary procedure.
to BGH, decision of November 9th, 2023 – I ZB 32/23
Editorial team beck-aktuell, ns, December 22, 2023.
Related Links
From the beck-online database
Klose, The evidentiary process – the center of the civil process, NJ 2023, 243
BGH, Provision of a judicial report as part of a “Düsseldorf procedure” – Aesthetic treatment, GRUR 2023, 1403 (with note from Grosch, GRUR 2023, 1427)
Ohly, The new trade secrets law at a glance, GRUR 2019, 441