LD Mannheim, September 16, 2025, order on the production of evidence, UPC_CFI_247/2025

Pursuant to R. 190 RoP and taking into account the stage of the proceedings, the production of license agreements was ordered insofar as the claimant agreed to submit the license agreements specified by it but could not receive the consent of its respective contractual partners to submit them.

The Court has discretion to decide on the application to order the production of evidence (R. 190 RoP). This includes the judge rapporteur’s discretion to decide about the temporal order in which questions are to be decided (R. 334 (e) RoP). The assessment of an application for an order to produce evidence may also depend on the stage of the proceedings.

In the case at issue, the judge-rapporteur held that no sufficient evidence had been presented or was otherwise apparent that the claimant has other – perhaps even more suitable comparable license agreements – that the parties could usefully employ in their efforts to conclude a FRAND license. Furthermore, it is primarily the claimant’s decision whether and, if so, which and how many comparable license agreements it submits in the proceedings in order to counter a possible FRAND objection by the defendant and to characterize its conduct as compliant with EU antitrust law.

The production of amendments and supplements to license agreements, ancillary agreements or other agreements relating to the license agreements is not required for the assessment of the claimant’s offer as FRAND-compliant or -incompliant. It is the claimant’s risk to submit and explain suitable comparative license agreements in order to characterize its conduct as compliant with EU antitrust law. Only if it reveals that claimant deliberately does not introduce suitable comparable agreements in the proceeding to obtain excessive royalties procedural consequences can be drawn.