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Germany: Supreme Court shows distrust of digital deadline management system

Increasingly, law firms strive for a solely digital file system without significant use of paper files. A fully digital deadline management system seems to be the logical consequence.

The Federal Supreme Court of Justice had to decide about the impact of a fully digital deadline management system without a co-dependent analogue control in Case III ZB 96/18.

The grounds of appeal were not received by the Higher Regional Court in time. As a result, the applicant requested re-establishment of rights.

In the statement of reasons, the applicant declared that the period for filing the grounds of appeal was correctly entered in the file with the deadline for filing the appeal. The employee confirmed the entry in the electronic calendar of the deadline by means of a copy. However, the deadline for filing the grounds of appeal and the deadline for filing the appeal had not been stored in the electronic calendar of deadlines of the used software.

The instructed proceedings for the employee were as follows: as a first step, the appeal deadlines should be written down in red pen in the inside of a hand file, subsequently, registration in the electronic deadline calendar should be performed and finally, registration in the electronic deadline calendar should be initialled in the hand file to confirm the deadline.

The employee was instructed to insert the initial in the hand file only after verifying that the deadlines were duly recorded in the electronic calendar. For this, the software has a dialogue box "input control" for listing all saved deadlines for the file, which is triggered by a green check. Thus, the employee was instructed to use the check box "input control" before putting an initial in the hand file.

The Federal Supreme Court does not approve of the described procedure for deadline control. In the view of the Federal Supreme Court, this implementation of almost fully electronic deadline control is not comparable with the safety of a control print out. Despite consideration of continuing digitalisation, applying the aforementioned deadline control without a paper control print out has to be considered an organisational fault. The use of an electronic calendar has to provide a verification security that does not fall short of manual proceedings. A control print out therefore is necessary in order to detect and eliminate not only data processing errors in the programme, but also input errors or omissions with little effort and in good time.

If, for example, after entering a deadline in the corresponding dialogue box, the confirmation field (green check) is inadvertently omitted and the immediately adjacent field marked with X is activated, the correct storage of the deadline and its control are not ensured. Such a "momentary failure" of the employee is not only of a theoretical nature. On the contrary, in the context of everyday office life, this kind of failure is not unlikely, for example if after an interruption of the deadline entry, its processing status has been forgotten and the input dialogue is confused with the input control dialogue.

Thus, a re-establishment of rights could not be approved.

The presented case itself might seem unremarkable. However, in view of the present public discussion about the further development of the digital revolution, in particular the different views on this topic between different generations, such a decision from a senate in which members are in the age range of 56 to 59, deserves closer attention.

In any case, in the ongoing conflict between progressive forces pushing the fully digital law firm and conservative forces seeking for a less radical change of work style, in this case, the Federal Supreme Court clearly leaned towards the conservative approach by strengthening the status of a paper control print out over this specific, almost fully digital implementation of deadline management.

Sebastian Herzog

Maiwald Patentanwalts- und Rechtsanwaltsgesellschaft mbHElisenhof, Elisenstr 3D-80335, Munich, GermanyTel: +49 89 74 72 660 Fax: +49 89 77 64

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