- within Intellectual Property topic(s)
- with readers working within the Basic Industries industries
The Highlights
- U.S. Rule 30(b)(6) Enables Binding Corporate Testimony: In U.S. litigation, corporations can designate representatives to provide binding testimony on behalf of the organization, promoting efficiency, transparency, and accountability.
- German Restriction on Managing Director Testimony: However, in German patent proceedings, managing directors cannot testify as witnesses while in office and are treated solely as party representatives unless they resign from their position.
- Strategic Implications for Cross-Border Cases: Understanding the procedural divide between U.S. and German systems is essential for multinational companies to coordinate litigation strategies and manage liability risks effectively.
In cross-border patent litigation, corporate testimony plays a critical role—but how it is handled varies dramatically between jurisdictions. The U.S. system, through Federal Rule of Civil Procedure 30(b)(6), allows corporations to speak through designated representatives. In contrast, German law strictly limits when and how a managing director (the functional equivalent of a CEO) can testify. Understanding these differences is essential for coordinated global defense or enforcement strategies.
Corporate Testimony in U.S. Litigation – Rule 30(b)(6)
Under Federal Rule of Civil Procedure 30(b)(6), an organization may be required to designate one or more individuals to testify on its behalf during a deposition. These individuals, known as corporate representatives or 30(b)(6) designees, testify to information known or reasonably available to the organization.
Key points – U.S. 30(b)(6) Depositions:
- Preparation Obligation: The designee is not required to have personal knowledge of the underlying events. Rather, they must educate themselves and speak for the organization on the noticed topics.
- Flexible Designation: The corporation has
flexibility in choosing its representative. The designee may be:
- An officer, director, or managing agent;
- An employee;
- A lawyer (including outside counsel, though this is less common and can raise issues); or
- A third party (e.g., a consultant or former employee), if the organization binds itself to the testimony and ensures the designee is adequately prepared.
- Binding Effect: The testimony binds the corporation, not the individual witness.
This mechanism ensures that corporate parties cannot evade questioning by hiding behind the collective nature of the entity. It promotes transparency, accountability, and efficient discovery—cornerstones of U.S. litigation practice.
German Patent Litigation – No 30(b)(6) Equivalent
German procedure takes a fundamentally different approach. There is no U.S.-like discovery and there is no equivalent to Rule 30(b)(6). Instead, evidence is formalized, court-controlled, and in principle limited to five strict means of proof under the German Code of Civil Procedure (Zivilprozessordnung, or ZPO): documents, witnesses, expert opinions, inspection, and party examination.
Besides, patent cases in Germany are bifurcated:
- Infringement is decided by specialized regional courts (e.g., Düsseldorf, Mannheim, or Munich).
- Validity is handled separately:
- Oppositions (only available within a 9-month deadline upon the publication of the grant of a patent) are decided by the German Patent and Trademark Office and the German Federal Patent Court (Bundespatentgericht) or by the European Patent Office;
- Nullity actions are decided by the German Federal Patent Court (Bundespatentgericht) and the German Federal Court of Justice (Bundesgerichtshof, or BGH).
As a result, validity cannot be raised as a defense in infringement proceedings. Instead, a defendant may request a stay pending validity. Such a stay is, however, at the discretion of the court. The decision infringement courts take is based on the predicted outcome of the parallel validity case. In practice these stays are the exception. They are most promising in cases of a clear-cut novelty attack based on prior art not found during examination.
Oddity of the Managing Director Role – in German Proceedings
In German proceedings, the managing director often becomes involved, but not as a witness, but as a party - because of corporate duties to ensure compliance with patent laws.
In the context of German patent litigation, the phrase "managing director of a party" refers to the Geschäftsführer (or Geschäftsführerin for female directors) of a corporate entity involved as a party to the proceedings—typically the defendant (accused infringer) or, less commonly, the plaintiff (patent holder or licensee). This role is the German equivalent of a CEO or executive director in a GmbH (limited liability company) or AG (stock corporation), who holds primary responsibility for the company's day-to-day management and external representation under German corporate law (e.g., GmbHG §§ 35–38 or AktG §§ 76–93).
Under German corporate law (GmbHG §§ 35–38), the managing directors bear a duty of care to prevent their companies from infringing third-party patents. The courts handling patent cases apply a strict standard: directors must monitor relevant patents and seek legal advice where needed.
Breach of organizational duties alone can amount to a breach of duty (Pflichtverletzung), even exposing the director to personal liability, e.g.injunction claim. And, in case of negligence, damage may be claimed as well.
Patent litigation in Germany is fast and high-stakes (often resolved within 12–15 months, with cost-shifting rules), so managing directors must maintain active patent compliance programs to minimize exposure.
Witness Examination vs. Party Examination – in German Courts
Among the strict means of evidence (expert evidence, visual evidence, examination of parties, documentary evidence, and witness evidence), the Code of Civil Procedure in Germany draws a strict distinction between witness examination (Sec. 373 et seq. ZPO) and party examination (Sec. 445 et seq. ZPO).
- Witness Examination: Available when the testimony is relevant to the dispute; courts generally must hear the witness.
- Party Examination: Considered
subsidiary — permitted only when other means of
proof are unavailable or insufficient.
- A party may request examination of the opposing party only with that party's consent (§ 447).
- A court may order examination ex officio only when essential to reach a decision (§ 448).
Status of a Managing Director: Party, Not Witness
Because of this strict separation between witness examination and party examination, only individuals who are not parties may serve as witnesses.
Under Sec. 455(1) ZPO, a company—being a legal entity—cannot itself testify; instead, its managing director appears as the company's representative.
Accordingly, a managing director of a suing or sued GmbH cannot be examined as a witness, but only as a party representative. This exclusion rule remains true even if the managing director is not actively participating in the litigation. As long as the individual holds office as managing director, he or she is barred from testifying as a witness in German courts.
Is there a workaround to have a Managing Director Testify as a Witness – in German Courts?
This limitation on the testimony of a managing director in German courts often poses practical challenges—particularly when the managing director is the individual with the most direct knowledge of the disputed facts. Of note, there is a legally accepted workaround, approved by the German Federal Court of Justice (Bundesgerichtshof, or BGH), but the workaround is a bit extreme.
Under Sec. 455(1) ZPO, the restriction applies only while the managing director remains in office. Once the individual leaves office, they may be examined as a witness—even if they held the position at the time the proceedings commenced. The reason for leaving (dismissal, resignation, or termination) is irrelevant.
Thus, a company may—at its own discretion—have its managing director step down before testimony, enabling them to testify as a witness. The BGH has held that this does not violate public policy. However, this approach carries practical and financial risks. For example, the party initiating the resignation must bear all related costs, which are not reimbursable, even if the party ultimately prevails. Additionally, if the managing director is reinstated immediately after testifying, a court might deem the maneuver abusive. However, if reinstatement occurs only after the proceedings have terminated, the risk of such a finding is minimal.
Why This Matters – The Wild and Crazy World of the Managing Director in German Courts
Understanding these differences in the role of the managing director for a company can be critical in cross-border patent disputes, when addressing cases in the U.S. and in Germany (a situation that is becoming more-and-more common, with global patent litigation):
- Strategy and Risk Management: U.S. litigators can obtain binding corporate testimony via 30(b)(6), but in Germany, key corporate actors are effectively off-limits as witnesses. This affects how cases are investigated and argued.
- Coordination Across Jurisdictions: Multinational corporations must tailor discovery and evidence strategies to each legal system.
- Liability Awareness: German managing directors carry personal liability for patent compliance—highlighting the importance of proactive internal policies.
Conclusion – Testimony from a Managing Director in German Patent Proceedings, Balancing the Approaches of the U.S. and Germany
In summary, U.S. and German litigation systems reflect fundamentally different philosophies toward corporate testimony.
- In the U.S.,the Rule 30(b)(6) mechanism ensures parties can be held accountable for the organization's knowledge and statements through a designated representative.
- In Germany, procedural law draws a strict boundary between party and witness testimony. A managing director, as a company's legal representative, is considered part of the party and cannot serve as a witness while in office.
Although German law allows a managing director to resign temporarily to testify as a witness, this remains an unusual and high-cost solution. In practice, parties rely instead on documents, expert opinions, and testimony from technically knowledgeable employees.
This contrast highlights a key procedural divide: U.S. litigation emphasizes corporate transparency through compelled testimony, while German practice relies on formal evidence, written records, and judicial evaluation rather than witness-led discovery.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
