How do I deal with this and what do I need to bear in mind?
In business life, disputes with customers or suppliers are an unwanted but nevertheless regular part of everyday life – for example, in connection with a warranty claim. To substantiate one’s own claim, the question often arises as to whether and to what extent internal information or external documents – for example, those of one’s own customer – may be disclosed. An example: A company wants to prove to its supplier that a defect has caused damage to a customer, for which the supplier is liable. Internal processes, emails, or contracts with the customer could be relevant for this. But what can and should be disclosed—and what should not?
Extrajudicial disclosure: Restraint is advised
Outside of court proceedings, there is generally no legal obligation to disclose documents or information to the contractual partner – unless this has been contractually agreed. Precisely because sensitive internal company information may be affected, disclosure should always be reviewed and weighed up.
In addition, the documents may also contain information about other business partners, such as customers or subcontractors. This data is usually subject to legal (e.g., under the German Trade Secrets Act) or contractual confidentiality obligations (e.g., from confidentiality agreements). Data protection and competition law provisions may also be relevant and must be observed.
At the same time, in many cases there is a practical need to provide at least basic information – for example, to substantiate the damage and/or enable the supplier to involve its liability insurance company, which can facilitate the enforcement of one’s own claims. In such cases, it is advisable, for example, to
- only disclose what is absolutely necessary,
- anonymize or redact documents,
- restrict access technically (e.g., via secure data rooms),
- and/or, in individual cases, obtain prior consent to disclosure from the third party concerned.
Ultimately, in out-of-court cases, it is necessary to find the permissible and reasonable extent to which claims can be heard and enforced. However, a presentation as in court proceedings is not absolutely necessary for this purpose.
Court disclosure: New protective mechanisms from April 2025
The situation is different in court proceedings: anyone wishing to assert claims in civil proceedings generally bears the burden of proof for the facts of the case. Ultimately, the court assesses whether the evidence presented is sufficient. This may mean that sensitive trade secrets or customer documents must also be submitted.
To ensure that such proprietary or customer information does not become public or is disclosed to unintended third parties, thereby potentially violating confidentiality obligations, necessary protective measures must be taken in addition to the considerations outlined above.
Until March 31, 2025, this was only possible with very limited means. These included, for example, excluding the public from the proceedings (Section 174 of the German Courts Constitution Act (Gerichtsverfassungsgesetz)).
However, since April 1, 2025, courts can take new protective measures: With Section 273a of the German Code of Civil Procedure (ZPO), a new provision has been introduced that refers to the German Trade Secrets Act (GeschGehG).
Pursuant to Section 273a ZPO, courts can now, at the request of one of the parties, resort to the procedural protection mechanisms of Sections 16–20 GeschGehG and thus take the following measures in particular:
- restricted access to court files,
- confidentiality obligations for parties involved in the proceedings,
- partially redacted or anonymized evidence,
- non-public hearings in exceptional cases.
This gives trade secrets greater protection in civil proceedings. The provision applies to all types of proceedings, including proceedings for a preliminary injunction or in independent proceedings for the taking of evidence.
Requirements for the application pursuant to Section 273a ZPO
An application for the protection of sensitive information must be specific and sufficiently substantiated. Important:
- The documents in question must be precisely identified and, if already submitted, the passages classified as secret must be clearly marked (Section 20 (4) sentence 1 GeschGehG).
- In the case of an application for restriction of access (Section 19 GeschGehG), a redacted version must also be attached, which can be made available to persons excluded from access (Section 20 (4) sentence 2 GeschGehG).
What if third-party information is affected?
If appropriate measures have been taken, it may be permissible, within the bounds of proportionality and after weighing up the interests involved, to disclose such information in civil proceedings without violating any confidentiality obligations, even without the consent of the owner of the information and despite existing confidentiality obligations. However, this must be examined on a case-by-case basis.
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