Yes. Privilege is almost a non-issue in German civil litigation. It does, however, have greater significance in the context of dawn raids, e.g., in cartel cases or other compliance-related matters.

In particular, the confidentiality of communications with defense counsel is effectively guaranteed and requires that privilege applies to such communication. The same applies to documents prepared for the purpose of defense.

So far, regional courts have been reluctant to grant privilege in cases of internal investigations (at least unless the company is already accused and the internal investigation is directed at preparing the defense). The Regional Court of Bonn held that documents prepared during an internal cartel compliance investigation may be seized at a subsidiary company's premises if the external lawyers who prepared the documents were retained by the parent company and not for the immediate purpose of preparing the defense of the subsidiary company. According to the court, only communications between an accused and the lawyer instructed to prepare the defense are protected.

The Regional Court of Hamburg reached a similar decision. According to its judgment, a lawyer's notes taken during an interview with an employee of the client in the course of an internal investigation could be seized, as there was no relationship of mutual trust between the employee and the lawyer. This was because the lawyer was engaged by the employer to assess its position vis-à-vis the employee in relation to potential damage claims. Both decisions have been criticized, and there is scope to argue that they are based on too strict an interpretation of the law. Further, a change in the Criminal Procedure Code in 2011 may support the view that at least documents from internal investigations in the lawyer's possession must not be seized (Regional Court of Mannheim).

Yet, the German Federal Constitutional Court in 2018 took a strict view. It held that documents prepared during an internal investigation (launched by the parent company with the intent to submit the results of the investigation to the US Department of Justice) can be seized at an international law firm's German office (as the documents were not prepared for the defense of an accused but in the context of an internal investigation). The law firm had argued that the right to choose and practice a profession (in combination with general fundamental rights) includes protection of the relationship of mutual trust between an attorney and its client. As a consequence, documents prepared during an internal investigation should enjoy privilege, irrespective of whether the company who mandated the lawyers is accused in criminal or regulatory proceedings in Germany. This argument has, however, been dismissed by the Federal Constitutional Court. It reasoned, inter alia, that even though a German office was involved, the law firm itself as an international entity (a general partnership in the state of Ohio, US), could not invoke this particular constitutional right that only applies to German citizens and entities.

The international law firm and some of the lawyers employed there then raised complaints against Germany before the European Court of Human Rights (ECHR) (1022/19 and 1125/19). They complained that the search of the law firm's Munich office, as well as the securing of documents and data which the lawyers had compiled or created during the internal investigation, had violated their rights under article 8 of the European Convention on Human Rights (Right to respect for private and family life). The ECHR considered the complaints to be manifestly ill-founded. It held that the search for and securing of documents in the present case did not concern documents and data protected by legal professional privilege in the criminal investigation at issue. Rather, it only concerned material regarding a third party obtained by the applicants in the exercise of their profession on behalf of a client not targeted in the criminal investigation and some of which the client had, in any case, permitted to be shared with the authorities. In addition, the criminal investigation proceedings in the US, in which context the applicants had been mandated, had already been concluded at the time of the search in March 2017. In these circumstances, according to the ECHR, the national authorities had a wider margin of appreciation in the context of the assessment of the necessity of the impugned measures.

There is a high risk that such communications will not be considered as privileged. This is particularly true if the subject is not (yet) accused in criminal proceedings and/or the interview is conducted with a person which is not the lawyer's client.