Expert opinion on preserving evidence
Preservation of evidence reports in the field of “machinery, mechanical engineering and industrial plants” document deviations from agreements.
Preservation of evidence: machinery and industrial equipment
In machinery, mechanical engineering and industrial plants, there are always conflicts and legal disputes because there are allegations that agreements have not been honored. This requires examination by experienced experts and a substantiated expert opinion.
Overview
Secure evidence
Evidence is secured in the
- party mandate and
- Court order (“Independent Evidence Procedure”)
Preservation of evidence in the party order
Relatively small causes are often responsible for damages and also major damages to machinery and industrial equipment as well as in mechanical engineering. What was agreed and what was delivered? These are the central questions that need to be clarified.
Fact-finding of the actual condition of a machine or industrial plant
Expert opinions on the preservation of evidence in the field of “machinery, mechanical engineering and industrial plants” play an important role in documenting deviations from agreements and clarifying technical facts. These expert opinions are often prepared by experts and consultants who are familiar with the technical-legal boundary conditions and have expertise in mechanical engineering.
Preservation of evidence on a machine or industrial plant is commissioned because the client believes that the machine or industrial plant does not meet what was expected and / or commissioned and ordered. If problems are found, lawyers also speak of a defect. There is therefore a close connection to product liability.
For example, the following are tested:
- Are there any discrepancies between the technical specification and the implementation?
- Does the performance of the order?
- Is the agreed availability achieved?
- Does the machine comply with the requirements of the Machinery Directive 2006/42/EC?
- Are the technical conditions for CE declaration of conformity fulfilled?
- Has the “state of the art” been implemented?
- What technical measures are necessary to achieve the agreement? What are the costs involved?
Important:
Preservation of evidence with an on-site visit and inventory are particularly important in order to be able to prove any product defects. In any case, this requires some experience in the forensic-technical field and also know-how in the legal work environment.
Independent evidence procedure (§487 ff ZPO)
The independent procedure of taking evidence is exclusively commissioned by courts. One party sees “urgency.” That is why the taking of evidence precedes any civil proceedings that may follow. However, independent evidence proceedings may also serve to prevent possible main proceedings and to reach a solution between the parties under moderation of the court.
Decision on evidence and course of the independent procedure for taking evidence
In any case, the applicant formulates questions which are – as a rule – also adopted 1:1 by the court in the order to take evidence. In almost all cases, the respondent also formulates its own questions.
The publicly appointed and sworn court expert shall be bound by the decision on evidence.
The imagination of the parties is reflected in the resolution of evidence. Therefore, thetechnical questions to be answered by atechnical court expert in the field of “machinery, mechanical engineering and industrial equipment” can bevery broad.
Frequently discussed points are:
- Manufacturing defects,
- Function and performance,
- Usability,
- Instructional Error,
- Information error,
- Construction error,
- Material defect,
- Quality issues,
- State of the art,
- Violations of rules, regulations, standards.
It is important to note that the independent evidence procedure primarily serves to preserve evidence and not to decide on legal claims. The actual court decision is made in the main proceedings. However, the independent evidence procedure offers the parties an opportunity to secure important evidence and to make the subsequent main proceedings more efficient.
Recommendation:
The basis for “independent evidence proceedings” is urgency. This emphasize from always lawyers. However, weeks can pass until a decision on evidence exists and further weeks until an expert is found who also accepts the order and then again until the on-site meeting. If it is really “urgent”, from our experience here, it is always recommended to preserve evidence in the party order, even if it is then only a party submission.