In the matter X ZR 19/12 “Tretkurbeleinheit”, the German BGH had to decide on a new means of attack based on a certain document D7 submitted with the grounds of appeal in the 2nd instance.
As already discussed earlier (see here and here), the party submitting new means of attack in the 2nd instance has to establish that one of the exceptions mentions in § 531(2) 1st sentence of the German Civil Procedural Act (ZPO) applies, e.g. in this case that the reason for the late submission is not negligence in the 1st instance.
In the case at issue, the plaintiff had argued that he came across the document D7 only in the course of a supplementary search carried out when preparing the grounds of appeal. The BGH did not consider this sufficient and established that the party filing the new document in the appeal instance has to establish why the document could not be found using suitably chosen search profile in the search carried out in the course of preparing the nullity action in the first instance (headnote I).
The practical implication is that the plaintiff in the nullity suit should keep records of his search queries (IPC classes and catchwords) in order to eventually establish why the late-filed document could not be found earlier.