Article 145 of the French Code of Civil Procedure allows claimants to request investigative measures “in futurum” (i.e., with a prospective view to future proceedings on the merits) provided that certain conditions are satisfied. In the absence of a pretrial “discovery” procedure in France, this mechanism is commonly used to obtain evidence, particularly in cases of suspected unfair competition.
Article 145 of the French Code of Civil Procedure provides that any claimant, prior to any trial, may request a court to order investigative measures to preserve evidence on which a future dispute may depend. This may involve, for example, sending (with or without an IT expert) a judicial officer/a bailiff to the offices of the company suspected of illegal acts to make copies of physical evidence of the alleged misconduct.
CHOICE OF PROCEDURE
This measure may be initiated either through standard summary proceedings or by way of a nonadversarial ex parte petition. In the latter case, the person or entity concerned is not informed beforehand, which is intended to create an element of surprise, mainly to prevent any tampering of evidence.
Of course, the targeted person or entity may at a later stage request a hearing to present its arguments to seek the withdrawal of the nonadversarial order.
ADVANTAGES FOR CLAIMANTS
Investigative measures obtained through this procedure are of considerable interest in business life. Indeed, they
- provide access to all types of documents (messages, letters, emails, WhatsApp conversations, among others) that are necessary to demonstrate misconduct in a future trial;
- help to prevent the risk of concealment or tampering of evidence by the opposing party; and
- help to assess whether it is appropriate to initiate legal action on the merits.
However, this process has a more limited scope than the American discovery process as it is strictly regulated and must not result in a fishing expedition. [1]
LEGAL SAFEGUARDS AND CONDITIONS FOR GRANTING INVESTIGATIVE MEASURES
To request an investigative measure on the basis of Article 145, one must justify:
- No prior or pending proceedings on the merits of the same dispute
- A legitimate reason [2]
- The legal admissibility of the measure [3]
- Where applicable, in a case of an ex parte petition, the reasons justifying the derogation from the adversarial principle must also be justified (for example, to prevent evidence tampering)
It should be noted that the documents obtained by the judicial officer/bailiff will not be immediately handed over to the claimant if the other party challenges the order on request, [4] in particular by raising an issue relating to business secrecy. The documents will then be held in escrow until this issue has been resolved.
In this case, several months or even years may elapse between the enforcement of the measure and the release of the escrow (i.e., the actual recovery of the seized items).
Thus, the mechanism provided for in Article 145 of the French Code of Civil Procedure does not always allow evidence to be obtained quickly. Nevertheless, it remains an effective and indispensable tool for gathering the evidence necessary for successful claim on the merits as this evidence can no longer be concealed or tampered with once secured.
Law clerk Anaïs Devillers contributed to this Insight.
[1] Term used to describe a maximalist search for evidence without knowing exactly what elements will be obtained.
[2] The measure must be proportionate to the infringement of the other party’s fundamental freedoms (such as business secrecy and the right to privacy) and must be useful for a future trial on the merits (which must appear credible).
[3] It must be one of the measures listed in the French Code of Civil Procedure and should be the simplest and least costly option to establish proof.
[4] It being specified that this procedure may be subject to appeal and cassation.
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