Exhaust scandal: Investigators may evaluate VW files

Emissions scandal constitutional court allows evaluation of internal VW files

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  • VW failed with the Federal Constitutional Court with a complaint against the confiscation of internal documents.
  • The court pointed to a “high potential for abuse” that would exist if the protection against seizures were put too broadly.
  • So it probably will not allow companies to hide sensitive documents in law firms.

The VW group has finally failed with the attempt to deny the investigators insight into extensive internal documents on the exhaust gas scandal. The Federal Constitutional Court has declared the confiscation of documents and databases at the US law firm Jones Day by the public prosecutor’s office Munich II to be lawful.

The firm was commissioned by VW in September 2015 with internal investigations. At that time it was about the procedure in the USA for exhaust gas manipulation of diesel vehicles. Meanwhile, the public prosecutor’s office Munich II had taken up investigations into the diesel affair in connection with the VW subsidiary Audi – and ensured in March 2017 with a search warrant of the Munich District Court in the offices of Jones Day numerous files and electronic data. They stem from the internal survey of several hundred employees as well as internal emails and documents. VW and the law firm fought against the action – arguing that the data was protected by the lawyer’s secret.

 

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The Federal Constitutional Court finally rejected the complaints of the company and the law firm. Essentially, this is a ban on seizure, which is regulated in the Code of Criminal Procedure – to protect the relationship of trust between lawyers and clients. In the criminal courts as well as in the legal literature, however, this ban is interpreted narrowly – a reading that has now been confirmed by the Federal Constitutional Court. An absolute ban on obtaining evidence from lawyers would significantly affect the effectiveness of law enforcement, argued the judges.

It is true that the relationship of trust between the defense lawyer and the defendant in a specific investigation is particularly protected. However, VW was not in an “accused” position at the time. The fact that the subsidiary Audi was the subject of investigations is not sufficient for this, as well as the expectation of future criminal proceedings. Above all, the court pointed to a “high potential for abuse” that would exist if the protection against seizures were put too broadly. Which means that otherwise companies could hide sensitive documents in law firms.

Clear signal that companies should cooperate with authorities

The investigating authorities had feared that without access to the files of Jones Day the exhaust gas scandal can not be cleared up. Since the bribery unveiling ten years ago at Siemens, it’s common for corporations to hire law firms on corruption, tax fraud, fraud, money laundering, and other cases to find out why and how things went wrong. The lawyers then scour emails and other files, interview employees and finally present their results. According to Siemens, this was also the case with the VW subsidiary MAN, with Rheinmetall and Thyssen-Krupp, with Airbus, with various financial institutions all the way to Deutsche Bank – and finally even with the German Football Association (DFB) because of the affair surrounding the 2006 World Cup ,

The affected companies had usually cooperated with the investigation authorities for years and provided their own investigation files. Recently, however, it had become apparent that companies and associations are passing on withholding the files from the investigators. In this respect, the decision of the Constitutional Court is a clear signal that companies should cooperate with the authorities.

 

Audi – the germ cell of the exhaust gas scandal?

Audi - the germ cell of the exhaust gas scandal?

Long played the diesel affair only at VW – for a good reason. In no case, the scandal should be an Audi scandal. But now it could turn out that everything started there. 

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