The e-Discovery and Information Governance Law Review: France

Overview

At common law, a party to a lawsuit may request the opposing party to provide information or materials in relation to their dispute. The latter must provide them, even if it considers them unfavourable to its case. Thus, a discovery phase is launched pretrial – before the contradictory examination of the parties' legal claims – with various means of proof, such as interrogations, depositions, applications for admission and requests for the production of documents.

In the United States, companies must, in general, preserve relevant electronically stored information (ESI) when litigation is reasonably foreseeable.2 In a dispute, each party must then systematically disclose a copy or a description of all documents and electronically stored information that it may use in support of its claim or defence. Lastly, the party may request and obtain the same materials from the opposing party to the extent relevant to any party's claim or defence and proportional to the needs of the case.3

In France, as in other civil law jurisdictions, there is no straightforward equivalent to this notion and process of discovery. Each party produces the evidence in support of its claims and, if it wants to obtain other materials from its opponent, this will only happen pursuant to a judge's order. The disclosure and examination of evidence usually goes along with the examination of the legal claims of the parties. Therefore, a discovery phase will take place separately, before trial, only if a party specifically applies for it and the judge agrees to it.

Since there is no general obligation to disclose documents requested by the opposing party, under civil procedural rules there is also no general obligation to preserve evidence (including electronically stored data) in anticipation of a trial. Conversely, in areas of the law that are subject to administrative or criminal sanctions (e.g., taxes, antitrust, financial markets, telecommunications and criminal law), special texts impose retention periods for certain types of documents, which means that companies must preserve predefined evidence to be able to produce it when so requested by investigators. In this area, recent developments in digitisation and archiving, investigation techniques and digital surveillance raise issues similar to those met with e-discovery, such as the breadth of electronic data that may be legally accessible and the use of forensic software.

These developments can be explained by the fact that, in relationships between merchants, commercial law leaves the parties freedom of proof, whether on paper or in digital form, while in legal areas subject to administrative or judicial control, the possibility of applying administrative or criminal sanctions requires more precise rules to govern the content of investigations as well as the scope of data accessible by electronic means and admissible as evidence.

Year in review

In the field of criminal and administrative proceedings, the rules on disclosure of electronic evidence held by third parties (most often providers of computing services or electronic communications) may undergo significant development when the draft EU e-Evidence Regulation, dated 17 April 2018, makes its way through the Union legislative process.4

The aim of this proposed Regulation is to facilitate the collection of electronic evidence for the purposes of criminal investigations and prosecutions. When adopted, the e-Evidence Regulation will create a uniform procedure, enabling a judge to require a service provider located in another Member State to retain or produce data that it stores.

This mechanism will apply to all types of digital services offered in the European Union, including electronic communications services, social networks, online markets, hosting services and internet infrastructure. Under this procedure, all injunctions will have to be issued or validated by a judicial authority of a Member State as part of criminal proceedings. In March 2021, the proposal was in the final stage of negotiations between the representative bodies of the European Union.

In the meantime, the Court of Justice of the European Union (ECJ) has developed its case law on the retention of traffic and location data, confirming on 6 October 2020 that Directive 2002/58/EC on privacy and electronic communications (the e-Privacy Directive) precludes legislative measures that provide for the general and undifferentiated retention of such data as a preventive measure, and specifying the exceptions applicable for purposes such as safeguarding national security, combating serious crime and preventing serious threats to public safety.

Further, on 2 March 2021, the ECJ ruled that public prosecutors should not be able to authorise access to traffic and location data by investigating authorities; rather, prior authorisation must be granted either by a criminal judge or by an authority independent of the conduct of the investigation.5

The French government opposes this jurisprudence by claiming its needs for the fight against terrorism. However, the Court grounds its decisions on the Charter of Fundamental Rights of the European Union, considering that access to a natural person's personal data with a view to its retention or use affects the fundamental right to respect for private life, guaranteed in Article 7, and that the data protection requirements laid down in Article 8 are mandatory. As a consequence, any limitation must be provided for by law and be subject to the principle of proportionality; that is, any limitation must be necessary and must genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others, in accordance with Article 52 of the Charter.

These are the same principles that led the ECJ to declare the Privacy Shield invalid on 16 July 2020,6 meaning that the EU–US agreement approved by European Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 no longer provides the safe harbour it was intended to offer. Transfers of personal data between the European Union and the United States, including those triggered by discovery requests, must therefore follow the same legal routes as those applicable to transfers to any other country, as provided by the General Data Protection Regulation 2016/679 (GDPR).

In parallel, the European Commission is continuing its revision process of the e-Privacy Directive. The current draft proposes to define the cases in which service providers will be allowed to process electronic communications data or to have access to data stored on end-users' devices. This will cover the content of communications as well as traffic and location data, including machine-to-machine data transmitted via public networks.

In contrast to the GDPR, most provisions will apply to both natural and legal persons. They will cover discovery for civil as well as criminal purposes. As a matter of principle, electronic communications data will have to be confidential, and any interference, such as eavesdropping, monitoring or processing of data by others besides the end user, will be prohibited, except where explicitly allowed by the new regulation. In March 2021, the presidency of the European Council has been mandated to begin discussions on the final text with the European Parliament.

Control and preservation

i Duties to preserve evidence

French civil procedure law does not impose a general obligation to keep documents in anticipation of or in the conduct of a trial. It is up to the judge to decide, on a case-by-case basis, whether documents requested by one party should be preserved and communicated by the other.

Even in the absence of a positive duty to keep documents, safeguarding relevant documents in view of litigation risks would seem a matter of basic prudence and business judgement. This requires that documents be kept for the duration of the limitation period applicable to their subject matter. Therefore, corporate document archiving and retention policies usually provide for retention periods adapted to the different limitation periods, with five years being the time bar applicable by default.

Although the rules of civil procedure do not impose a general obligation to preserve evidence in anticipation of a trial, some special texts require certain types of documents to be preserved for specific periods. For example, for merchants, the Commercial Code (Article L. 123-22) requires accounting documents and supporting documents to be kept for 10 years. It also specifies the conditions for the presentation and storage of those documents.

Tax law extends this obligation by introducing mandatory methods and retention periods for invoices and other supporting documents and explicitly refers to documents in electronic form.7 In this respect, the Tax Administration specifies that the failure to keep records, whether totally or partially, noticed by the administration's agents may be sanctioned. For example, failure to keep original invoices in electronic form may lead to VAT deductions being repelled.8

In other specific areas, special texts provide for similar obligations to keep documents for a fixed period, including in electronic form. Thus, in labour law, such an obligation applies, for example, to the single personnel register and to employers' declarations of accidents at work.9 Similarly, under provisions now being challenged, electronic communications operators must keep traffic and other technical data of their users for one year.10

In principle, a party to a civil case cannot rely on the special texts to request the evidence they provide for. Exceptions are made, for example, to allow the disclosure of accounting documents in court in cases of succession, community, company sharing, judicial reorganisation or liquidation.11 A party may also ask a judge to request a telecom operator to disclose technical data necessary to sustain a claim; for instance, to disclose the IP address of the author of defamatory comments on a social network.

ii Order to preserve evidence in anticipation of litigation

In this context, a duty to keep documents specifically in anticipation of a trial will only arise by decision of a judge. Before a trial, a plaintiff may apply to the judge for an order for any legally admissible investigation measure, which includes the possibility to require the opposing party or a third party to retain or disclose evidence in view of a trial. This measure is known as in futurum, as it allows the plaintiff to request the preservation of evidence that it may use thereafter at trial before the court (Code of Civil Procedure (CPC), Article 145).

Although there is no notion of 'possession, custody and control' over documents as under common law, the judge will assess whether the measures requested are legally admissible. For example, it may be a legally permissible measure to require the publisher of a website to provide the IP address of an internet user whose message it has received on its website.12

Before trial, when a business is subject to control by administrative or regulatory authorities, it must retain all information (in whatever form) that may be requested by the investigators. In this regard, the Paris Court of Appeal refers to a 'general duty of prudence' on the part of any company under investigation by the Competition Authority 'to preserve any evidence likely to enable [such company] to justify the lawfulness of its practices'.13 This duty to keep records concerns 'not only the accounting documents and supporting documents provided for in Article L. 123-22 of the French Commercial Code, but also all evidence of the lawfulness of [its] commercial practices . . . until the expiry of the limitation period or a decision to dismiss the case'.

iii Sanctions for failure to preserve evidence

Under ordinary law, failure to keep documents is not punishable. An exception is made under criminal law: destroying, diverting, concealing or altering a public or private document or an object likely to facilitate the discovery of a crime or misdemeanour, the search for evidence or the conviction of the guilty parties in order to obstruct the establishment of the truth may be punished by three years' imprisonment and a fine of €45,000.14 Regarding administrative or regulatory proceedings, certain special texts (e.g., the General Tax Code) provide for specific sanctions.

Requests and scope

i Request to the judge

According to Article 9 of the CPC, in general, it is up to each party to provide evidence of the 'facts necessary for the success of its claims'. In addition, as soon as a party cites a document, it must immediately communicate it to the other parties. Conversely, a party is not required to systematically disclose all the elements that may serve as evidence in the dispute in question.

In this context, if a party wants to obtain materials from its opponent or from a third party, it must request them from the judge, and the communication of those documents must then be decided by a judge order (possibly delivered ex parte).

As a consequence, absent a procedure equivalent to discovery or an agreement to the contrary, the parties to a trial do not have to meet and confer in advance on the evidence they will produce.

ii The judge's order

When ruling on a party's request for evidence, the judge may order such communication and make it subject to a daily penalty in an amount that the judge's order will fix. The judge may also order, on his or her own initiative or at the request of a party, an investigation measure, such as judicial expertise, the production of affidavits or the hearing of witnesses.

This type of measure may be ordered before the trial if there is a legitimate reason to preserve or establish evidence of facts on which the resolution of the dispute may depend (CPC, Article 145). The aim is to improve the applicant's 'probationary situation' – in other words, to establish proof of facts that the applicant is not in a position to establish totally or alone.

Whereas these civil procedure rules do not specifically address data and e-evidence, criminal rules do. The means of accessing electronic communications and electronically stored evidence have recently been strengthened on the grounds of the fight against terrorism.15 In general, electronic evidence can be searched for by criminal investigators via warrant procedures (e.g., for technical records, location data and current e-correspondence), including search warrants (to access stored data, including past correspondence).

iii Proportionality and loyalty of the evidence

Case law prohibits investigation measures that are general.16 This was the case, for example, regarding a discovery order reversed in 2012 that 'authorised the bailiff to seize any social, fiscal, accounting or administrative document of any nature whatsoever and allowed him to search at his own discretion the company's premises [subject to the investigation measures]'.17 More specifically, judges exclude measures that exceed the needs of the case and whose purpose is not limited in space and time.18

A frequent example of this proportionality test concerns disputes between employees and employers, where the courts make a distinction between the types of documents that employers can produce from their information systems. Documents contained on an employee's computer are presumed to be of a professional nature. However, to respect employees' right to privacy, which also applies in the workplace, an employer will not be able to validly avail itself of documents that have been expressly designated as personal or private by the employee.19

In the field of intellectual property, when evidence of counterfeiting is sought, the right holder may request a court order to authorise a bailiff to describe and take a copy of the allegedly infringing piece of software or database. Making a copy is less burdensome and risky for both parties than seizing the production instance of the program or database.20

In addition to the principle of proportionality, case law also imposes a principle of fair evidence. In short, in a civil trial the parties will only be able to rely on evidence obtained fairly, whereas before a criminal judge, a party will also be able to rely on evidence that has been illegally obtained, as long as the evidence has been open to debate in a fair trial.21

Practically, this distinction may lead to the exclusion, before the civil court, of private data recordings made by one party without the knowledge of another,22 which constitutes an unfair process and is, therefore, not admissible as evidence (but would be admissible before a criminal court).23 This only concerns evidence used by civil parties: in criminal cases, investigators must comply with the principle of fair evidence.24

When called upon to assess the proportionality and fairness of the disclosure requested, a court considers not only the interest of the applicant, but also the protection of fundamental freedoms (in particular the right to privacy) and of secrets protected by law (in particular professional and business secrecy).

In the area of criminal discovery, the Criminal Procedure Code allows investigators to access data from a computer system located on the premises where a search takes place. The search warrant may also cover data stored in a remote computer system, 'as long as such data is accessible from the initial system or available to the initial system'. However, the Criminal Procedure Code reserves the duty to comply with international treaties, which govern the authorities' access to data collected when the remote computer system is located outside the national territory.25

iv Failure to provide evidence

The judge is in charge of controlling the timing of the proceedings. Before concluding the preliminary phase of the trial (exchange of pleadings) and summoning the parties to the hearings, he or she may invite the attorneys to reply to the pleas on which they have not concluded, or to provide the factual and legal explanations necessary for the settlement of the dispute.

In those circumstances, if a party does not produce the requested documents, the judge will draw the appropriate conclusions for the resolution of the dispute. It remains contingent on the judge's decision, on a case-by-case basis, to draw the consequences of a party's possible bad faith in refusing to provide such evidence.

In all cases, each party bears its own costs for the production of evidence until the judge makes his or her decision and decides on the burden to pay for the costs of the trial.

Review and production

i Production

As French civil procedure law does not provide for a general obligation to communicate to the opposing party the documents relevant to the dispute, the use of tools for mass document analysis (e.g., technology assisted review or predictive coding) remains limited to specific categories of litigation.

For instance, the question of mass data review is an important aspect of investigations into antitrust practices.26 Competition Authority investigators may require disclosure and obtain or make copies, by any means and using any medium, of books, invoices and other professional documents of any kind, in any hands. With regard to electronic documents, they 'have access to software and stored data as well as to the restitution in clear text of information likely to facilitate the performance of their missions. They may request the transcription by any appropriate processing of documents directly usable for control purposes.'27

These provisions do not allow investigators to request, in a general and imprecise manner, all documents located in the company's computers. However, case law has specified that 'this limitation to the powers of investigators cannot be interpreted as requiring them to know a priori the existence and name of each of the documents communicated, since this information is, by definition, known only by the user of the computer workstation'.28 Therefore, the documents requested should be sufficiently identified.

In this instance, evidence retrieval software (forensic software) can, and should, be configured to extract only documents relevant to the case. In this context, however, the Court of Cassation specified in late 2018 that government entities may seize a whole mailbox, in as far as email files cannot be split.29

ii Admissibility

At a second stage, given the ultimately broad scope of a company's data that government entities may seize or copy, the question arises as to which pieces of that data are then admissible as evidence. The prosecutors must sort out the materials obtained as a result of pretrial investigations before submitting them to trial.

In principle, attorney consultations, attorney–client correspondence and attorney meeting notes are covered by the attorney–client privilege. Whether they appear on paper or in electronic format, those documents cannot be requested as evidence, nor would they be admissible if inadvertently communicated. The same applies to correspondence between the company's attorney and his or her fellow attorneys (except when marked 'official').30

This protection of the legal privilege is seen as a fundamental right under the European Convention for the Protection of Human Rights and Fundamental Freedoms, meaning that disclosure of information may only be required by law, under certain conditions. Thus, in matters of corruption and money laundering, for example, information obtained by a French attorney in the course of assessing the legal situation of a client is excluded from the scope of the obligations of information and cooperation vis-à-vis public authorities, except in cases such as where the lawyer takes part in those activities.31

Nevertheless, case law specifies that:

this principle is not absolute and has several exceptions; thus, by way of illustration, it cannot be accepted that exchanges between two correspondents with copy to an attorney may benefit from the legal privilege applicable to the confidentiality of attorney/client correspondence unless this legal privilege is distorted; that indeed, it would then be sufficient for a company to exchange e-mails with another company with a recipient who would be qualified as an attorney in order for any correspondence to benefit from this legal privilege.32

Similarly, the judge may put aside a claim for attorney–client privilege applicable abroad when the protection is not applicable under French law.33

Case law is increasingly reducing the scope of the legal privilege. Thus, on 25 November 2020, the highest court in the judiciary, the Court of Cassation, ruled that, in the event of control by agents of the Competition Authority, a judge may order the return of correspondence between the company under control and its lawyer, based on the attorney–client privilege, but only in so far as it relates to the exercise of the defence's rights.34

Finally, an EU Directive of 8 June 2016, transposed in France by an act of 30 July 2018, introduced into French law a definition of business secrecy and a legal regime to protect it.35 Before this text, a party could ask the civil judge to order an investigation measure, if necessary, in a non-adversarial manner (CPC, Article 145) to limit the risk of concealment of evidence and to put in escrow the evidence obtained, even though it could be protected by business secrecy. This type of investigative measures is bound to evolve according to the new legal regime of business secrecy.

Privacy issues

i Limits to the scope of discovery

E-discovery proceedings necessarily involve the transfer of personal data (e.g., the communication of emails). This raises difficulties with regard to legislation on personal data. In the European Union, personal data is considered a personal right belonging to the person identifiable by the data (right in personam) rather than a proprietary right belonging to the person holding the data. Therefore, third parties holding personal data cannot freely disclose it.

On this basis, some French companies have refused to follow discovery requests from abroad, arguing that disclosure outside the European Union of documents containing personal data is prohibited by French law.36 Among other principles enshrined in the GDPR, the volume and nature of the data must be limited and proportional to the requirements of the procedure.

In this context, the French Data Protection Authority and the European Data Protection Board have developed recommendations to enable businesses to accommodate discovery requests from abroad, such as using software tools to filter out personal data, providing anonymous or pseudonymous data where possible and expressly specifying conditions for the use and disclosure of personal data to third parties.37 In all cases, the persons whose data is communicated must retain their rights over the data, namely rights of access, objection, deletion and limitation.

ii Requirement for an international conventional basis

As a matter of principle, the GDPR, as well as its implementing law,38 prohibits the transfer of personal data to countries whose legislation does not offer an equivalent level of protection as the one provided by the laws of the Union. The parties willing to derogate from this prohibition must put in place specific compliance mechanisms to provide the framework for each envisaged cross-border data transfer. Such mechanisms include, among other things, adherence to standard contractual clauses published by the European Commission. Since 16 July 2020, the Privacy Shield mechanism specific to the United States is no longer valid.39

Alternatively, when issued by a judge or another authority outside the European Union, a request for the discovery of data that includes personal data must be made within the framework of a treaty, in this case an international legal assistance treaty.

In France, as in the United States, the procedure applicable to civil and business relationships comprises international letters rogatory as provided for by the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters. This procedure allows a judge of a state party to ask a central authority in another state party to order investigative measures.

Under the Convention, France has declared that it will not perform international letters rogatory issued in common law countries for the purpose of pretrial discovery, unless the documents required are listed restrictively and have a direct and precise relationship with the subject matter of the proceedings.

France and the United States are also bound by a mutual legal assistance treaty in criminal matters, dated 10 December 1998. In addition, the European Union and the United States signed an agreement in June 2003, providing for mutual legal assistance to share banking information and to create joint investigative teams.40

iii Setting aside the blocking statute and the judge's control

Since a 1987 Supreme Court ruling,41 US courts have considered civil judicial cooperation proceedings under the Hague Convention to be optional – that is, not superseding the extraterritorial application of the US pretrial discovery rules.

Furthermore, insofar as many administrative or criminal investigations in the United States are not subject to the judge's control, the mutual judicial assistance procedures are largely bypassed: the blackmail of the non-prosecution agreement leads the target company to deliver the requested information on its own.

In view of the extraterritorial and intrusive nature of cross-border discovery procedures, the French authorities adopted a blocking statute42 designed to prevent, in particular, fishing expeditions (i.e., procedures for economic intelligence purposes). As amended in 1980, the statute prohibits both the request and disclosure of any 'documents or information of an economic, commercial, industrial, financial or technical nature intended to constitute evidence for or in connection with foreign judicial or administrative proceedings' if outside the international judicial cooperation mechanisms.43 Thus, defendants in a discovery proceeding would be punished by law for disclosing inadequate information, but could use this legal threat as a reason for refusing to turn it over.

To date, this law has not been effectively applied in France, so it lacks credibility in the eyes of American judges and does not help restrain extensive discovery requests.44 As a result, the major sanctions decided in recent years by US administrations against leading French and other European companies in global markets under the pretext of fighting corruption, regulating arms exports or establishing unilateral embargoes against certain countries, and based on the use of the US currency or on the discovery of electronic messages stored on servers located in or accessible from the United States, have come as a shock to those unaware of the powerful leverage of extraterritorial e-discovery.45 This prompted the French legislator to enact the possibility of non-prosecution agreements (judicial public interest agreements) in the area of anti-money laundering and anti-corruption.46

In this context, the conclusion on 31 January 2020 of a settlement agreement between Airbus, the French National Financial Prosecutor's Office, the UK Serious Fraud Office, the US Department of Justice and the US Department of State seems to give credit to this 'justice without a judge', which led the aircraft manufacturer to disclose more than 30 million documents to the prosecuting authorities with a view to 'limiting' the amount of the fines to nearly €3.6 billion. While allowing for a swift resolution of the case, in particular owing to a technology-assisted review of electronic documents, this transnational procedure seems to have successfully passed through the different data protection regimes and blocking statutes involved.

Outlook and conclusions

Although the concept of extensive pretrial discovery in the hands of each party is foreign to French evidence law, the globalisation of electronic data exchange is causing an alignment of procedures.

In civil matters, the parties are not yet required to meet and confer; however, since 2017 they are allowed to agree, at any time during the proceedings, on a collaborative procedure agreement (tantamount to a discovery plan) for the purpose of preparing for trial.47 At the same time, the statutory regime detailing the conditions for the protection of business secrecy were enacted in 2018.48 These developments have had an increasing impact on the production of documents by companies as well as on the investigative measures that companies can request from the judge.

In criminal and administrative matters, the integration into French law of the judicial public interest agreement for the purposes of fighting against corruption and money laundering has appealed to the tastes of the administrative authorities, which have extended this procedure to the fight against tax fraud (2018) as well as to environmental matters (2020).

In this context, the recent case law of the ECJ requiring that access by investigators to stored communications data be subject to prior approval by a judge or an authority independent of the prosecution seems to be the last safeguard against the advent of this transactional justice in the hands of prosecutors or, in other words, to this 'justice without a judge.'

Footnotes

1 Olivier de Courcel is a partner at Féral-Schuhl / Sainte-Marie.

2 US Federal Rules of Civil Procedure, Rule 37(e) and Committee Notes on Rules.

3 Ibid., Rule 26(b)(1). See Chapter 9, United States, pp. 81–82.

4 Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (COM(2018) 225 final).

5 European Court of Justice, No. C-511/18, Quadrature du Net c. Premier Ministre et al., 6 Oct. 2020; No. C-746/18, H.K. v Prokuratuur, 2 March 2021.

6 European Court of Justice, No. C-311/18, Data Protection Commissionner v. Facebook Ireland Ltd and Max. Schrems, 16 July 2020.

7 Article L. 102 B et seq. of the Tax Procedures Book.

8 Official Bulletin of Public Finance-Taxes: BOI, CF-COM-10-10-30-10-20180720, § 290, 20 July 2018.

9 Labour Code, Articles R1221-26 and D4711-3.

10 Postal and Electronic Communications Code, Article L.34-1.

11 Commercial Code, Article L123-23.

12 Paris Court of Appeal, 11 June 2004, D. 2004. IR 2893.

13 Paris Court of Appeal, 26 January 2012, No. 10/23945.

14 Criminal Code, Article 434-4.

15 Law No. 2014-1353 of 13 November 2014 on the fight against terrorism; Law No. 2016-731 of 3 June 2016 strengthening the fight against organised crime, terrorism and their financing, and improving the efficiency and guarantees of criminal procedure.

16 Court of Cassation, Civil Chamber 2, No. 97-10.831, 7 January 1999.

17 Court of Cassation, Civil Chamber 2, No. 11-17.229, 16 May 2012.

18 Court of Cassation, Civil Chamber 2, No. 12-26.930, 14 November 2013.

19 Court of Cassation, Social Chamber, No. 99-42942, 2 October 2001.

20 Intellectual Property Code, Article L. 332-4.

21 European Court of Human Rights, No. 10862/84, Schenk v. Switzerland, 12 July 1988; Court of Cassation, Criminal Chamber, 15 June 1993: Bull. Crim. No. 210; Court of Cassation, Criminal Chamber, No. 09-83.395, 27 January 2010: 'no legal provision allows criminal judges to exclude evidence provided by an individual to the investigation services solely on the ground that it was obtained unlawfully or unfairly and that it is for them alone, pursuant to article 427 of the Code of Criminal Procedure, to assess its probative value, after having submitted it to the adversarial discussion.'

22 'Criminal judges may not dismiss evidence produced by the parties on the sole ground that it has been obtained unlawfully or unfairly.' (Court of Cassation, Criminal Chamber, 26 April 1987).

23 Dictionnaire de la justice, PUF, 'Proof ', X. Lagarde. The principles of civil procedure also cover antitrust law (Court of Cassation, Plenary Assembly, No. 09-14.316 and 09-14.667, 7 January 2011).

24 Court of Cassation, Criminal Chamber, No. 14-88.351, 17 March 2015 (on the sound system of a police custody cell to obtain evidence in matters of organised crime).

25 Code of Criminal Procedure, Article 57-1.

26 Other specific areas regulated by supervisory authorities have similar developments in the right of investigators to communicate: see, for example, in the pharmaceutical sector (Public Health Code, Article L. 1421-3); in matters of consumer protection (Consumer Code, Article L. 512-11); and in financial control (Code of Financial Courts, Article R. 241-1 et seq.).

27 Directive (EU) 2016/943 of 8 June 2016, transposed into the Commercial Code, Article L. 450-3 and L. 450-4.

28 Paris Court of Appeal, Pôle 5, Chamber 7, No. 17/01658, 26 October 2017.

29 Court of Cassation, Criminal Chamber, No. 17-87357, 19 December 2018: in 'the making of global and undifferentiated seizures of electronic mail files and global seizures of electronic mail files, it is consistently the case that an Outlook-type e-mail file, unless its content is altered, is unbreakable'.

30 Rules of Professional Conduct, Article 2.

31 ECJ, No. C-305-05, Ordre des barreaux francophones et germanophones et autres, 26 June 2007.

32 Ibid.

33 Court of Cassation, Civil Chamber 1, No. 15-20.495, 3 November 2016.

34 Court of Cassation, Criminal Chamber, No. 19-84.304, 25 November 2020.

35 Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and commercial information (trade secrets) against unlawful acquisition, use and disclosure (transposed by Law No. 2018-670, 30 July 2018; now in the Commercial Code, Article 151-1 et seq.).

36 See, for example, In re Activision Blizzard, Inc, 86 A.3d 531 (2014) (Del. Ch. 21 February 2014).

37 French Data Protection Authority, Deliberation No. 2009-474, 23 July 2009, concerning recommendations for the transfer of personal data in the context of American court proceedings known as 'Discovery'; G29, WP 258, Working Document 1/2009 on pretrial discovery for cross-border civil litigation. The New York City Bar has released similar guidelines to help US companies anticipate the conflict of laws between discovery procedures and privacy laws: 'Cross-Border E-Discovery: Navigating Foreign Data Privacy Laws and Blocking Statutes in U.S. Litigation' (16 July 2018, reissued in February 2020).

38 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC (General Data Protection Regulation), Article 44 et seq.; Law No. 78-17 (Computer and Freedoms Act) 6 January 1978, Article 112 et seq.

39 See footnote 6.

40 Agreement on mutual legal assistance between the European Union and the United States of America, 25 June 2003, No. 22003A0719(02).

41 United States Supreme Court, Société Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa, No. 85-1695, 15 June 1987, 482 U.S. 522 (1987).

42 Law No. 68-678 of 26 July 1968 on the communication of documents and information of an economic, commercial, industrial, financial or technical nature to foreign natural or legal persons.

43 Ibid., Article 1 bis.

44 See US Supreme Court, Aérospatiale (1987), cited in footnote 41.

45 Alstom: US$772 million (2014); BNP Paribas: US$9 billion (2014); Société Générale: US$1.3 billion (2018).

46 Law No. 2016-1691 on transparency, the fight against corruption and the modernization of economic life, 9 December 2016 (Sapin Law) (now in the Criminal Procedure Code, Article 41-1-2; 180-2).

47 Decree No. 2017-892, 6 May 2017, Article 26 (now in the Code of Civil Procedure, Article 1546-1).

48 See footnote 35.

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