Reference to USB stick in the application

Problem description: Digitization in civil proceedings

Digitalization is advancing – also in civil proceedings. According to the law (see Section 130a (1) ZPO), attachments to statements of claim or other pleadings may be submitted to the court as “electronic documents” subject to certain requirements. § Section 130a (1) ZPO reads:

“Preparatory pleadings and their annexes, applications and declarations to be submitted in writing by the parties as well as information, statements, expert opinions, translations and declarations by third parties to be submitted in writing may be submitted to the court as electronic documents in accordance with the following paragraphs.”

The problem is that the permission cited above is limited to the digital submission of objects that also exist or can be produced in written form. In reality, however, we are increasingly dealing with purely digital objects or facts. For this increasingly common constellation, the BGH has now provided valuable clarification for practical use.

The BGH ruling of 14.07.2022 (Case No. I ZR 97/21) – The digitalization of civil proceedings also includes the reference to a USB stick in the application for action

In its judgment of 14.07.2022 (case no. I ZR 97/21), the Federal Court of Justice clarified that reference to a USB stick is also permitted in a claim that is to be enforced in the event of success. The BGH stated:

“The specificity of the application must also be examined ex officio in appeal proceedings by
(BGH, judgment of 16. December 2021 – I ZR 201/20,
GRUR 2022, 229 [juris para. 21] = WRP 2022, 318 – ÖKO-TEST III, mwN). According to
Section 253 (2) no. 2 ZPO, an application for an injunction – and according to Section 313 (1)
no. 4 ZPO a conviction based on it – must not be worded so vaguely that the subject matter of the dispute and the scope of the court’s power of review and decision (Section 308 (1) ZPO) are not clearly delineated, the defendant is therefore unable to defend itself exhaustively and the decision as to what it is prohibited from doing is ultimately left to the enforcement court (st. case law; see BGH, judgment of September 9, 2021 – I ZR 90/20, BGHZ 231, 38 [juris para. 19] – Influencer I, mwN). Sufficient certainty is usually given if reference is made to the specific infringing act and the claim, at least by referring to the claim, unambiguously indicates the characteristics of the challenged conduct in which the basis and the connecting factor for the infringement of competition and thus the injunction should lie (cf. BGH, judgment of November 8, 2018 – I ZR 108/17, GRUR 2019, 627 [juris para. 15]=WRP2019,731 – Deutschland-Kombi; decision of February 4, 2021 – I ZR79/20,K&R 2021, 333 [juris,para.12]).

Accordingly, the Court of Appeal correctly assumed that
the reference to the USB stick submitted by the plaintiff as Annex K 1 to the files , which indisputably fully documents the telemedia offer complained of as a specific form of infringement, is sufficient to substantiate the plaintiff’s applications for injunctive relief.”

My assessment of the admissibility of the reference to a USB stick in the application

The ruling makes it clear in a welcome way that the digitization of civil proceedings does not stop at the submission of documents in the context of court proceedings.
§ Section 130a (1) ZPO does not help if the actual subject matter of the dispute in the proceedings is a digital product. In this case, it is simply not possible to dispense with a reference to a digital source outside the judgment (here: USB stick) in a judgment.

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The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

LEGAL+ NEWS

Problem description: Digitization in civil proceedings

The BGH ruling of 14.07.2022 (Case No. I ZR 97/21) – The digitalization of civil proceedings also includes the reference to a USB stick in the application for action

My assessment of the admissibility of the reference to a USB stick in the application

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The court’s duty to provide information in civil proceedings

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