There is no formal process of disclosure or discovery under German procedural law, and the duty to produce documents is very restricted. Since a change of the German Code of Civil Procedure ("Civil Procedure Code") in 2008, the court may order that a party or a third party disclose specific documents to which one of the parties has referred and that are in the other party's or the third party's possession (section 142 of the Civil Procedure Code). The facts that are to be evidenced by the documents must be in dispute and relevant to the outcome of the case, and the party that has the burden of proof must adequately substantiate the facts of its case independently of disclosed documents. The highest German civil court, the Bundesgerichtshof (BGH), has confirmed that a court must not order the production of documents solely for the purpose of extracting information. For this reason – and probably also because disclosure is at odds with the traditional approach in German civil litigation – disclosure orders are rare in practice. Therefore, case law on the application of section 142 of the Civil Procedure Code is sparse.

According to section 142 of the Civil Procedure Code, a court has discretion whether to order the production of a document or not. In exercising this discretion, the court, according to the BGH, may take into consideration the principle of proportionality and also legitimate interests in maintaining confidentiality. Thus, a court may find that the other party does not have to disclose documents, for example, if they contain business or trade secrets. Some scholars also argue that, in order to protect the attorney-client relationship, the other party would not have to disclose documents prepared within such relationship. At present, however, it cannot be assumed that this view would be shared by the courts. Third parties are not obliged to disclose documents if it would be unreasonable for them to do so or if they have a right to refuse testimony (section 142 paragraph 2 of the Civil Procedure Code). Thus, for example, a lawyer would not be obliged to disclose a document falling within the scope of their confidentiality obligations, as explored further in this chapter.