FRANCE Trends and Developments Contributed by: Grégoire Bertrou, Delphine Grimond and Augustin Paperon, Willkie Farr & Gallagher LLP
poenas outside this framework can expose compa- nies and individuals to legal risk under French law. When a French company or individual is asked to produce documents for use in foreign proceedings (eg, US discovery), the analysis will depend upon the procedural route used by the plaintiffs: 1st procedural route: Formal Request through the Hague Convention If the request follows the Hague Convention: • Transmission: The foreign court issues a Letter of Request to the French Central Authority, the DACS ( Département de l’entraide, du droit international privé et de l’extradition ). • Review by DACS: (a) admissibility of the request; (b) compliance with French law, including profes- sional secrecy, the right to a fair trial, and data protection (GDPR). (c) consultation with SISSE ( Service de l’information stratégique et de la sécurité économiques or SISSE) if the request appears sensitive, strategic, or potentially unlawful, in order to evaluate: (d) risks of foreign interference; (e) protection of strategic economic interests; (f) applicability of the 1968 French Blocking Stat- ute. • Execution: If admissible, the DACS ensures execu- tion through a French judge (domestic letter roga- tory). The requested documents are then transmit- ted within a supervised, sovereign legal framework. 2nd procedural route: Direct Requests or Subpoenas If a French company receives a direct request from a foreign court or law firm (eg, subpoena, discovery order) without going through the Hague Convention: • such transmission may breach the 1968 French Blocking Statute. • the company should promptly contact the SISSE to evaluate: • legality of the request; • risks associated with direct transmission. •
Following assessment, the SISSE may: • recommend refusal to transmit documents directly; • notify the DACS if there is foreign judicial pressure; • propose re-routing the request through the Hague Convention or by way of a letter rogatory. Personal data protection (GDPR Compliance) US discovery procedures often clash with core princi- ples of French and EU data protection law, particularly as enshrined in the General Data Protection Regu- lation (GDPR). The transfer of personal data outside the European Economic Area (EEA) is subject to strict conditions. Discovery orders requiring mass disclo- sure of personal data – especially without appropri- ate safeguards, informing data subjects and/or giving them the ability to exercise their rights – rarely meet these standards. Moreover, the GDPR’s principle of purpose limitation (Article 5 (1)(b) restricts data pro- cessing to clearly defined and legitimate objectives, which may not include compliance with foreign litiga- tion demands. Article 48 of the GDPR, reinforced by the 1970 Hague Evidence Convention, provides that personal data transfers for litigation purposes must occur within the framework of an international agree- ment, which the US often circumvents. In the US, the presumption is that a standard confidentiality or pro- tective order is an acceptable means of protecting the use and disclosure of sensitive data in litigation. As a result, it is important to educate the US court on the issues concerning the GDPR and the strict conditions US discovery also frequently conflicts with the strong French and EU rules safeguarding professional secre- cy and trade secrets. In France, lawyers, notaries, and other professionals are strictly bound by confidential- ity obligations – notably under Article 66-5 of the Law of 31 December 1971 and the Règlement Intérieur National (RIN). These rules prohibit the disclosure of any information obtained in the course of professional duties, including in response to foreign subpoenas or court orders. Violations can lead to disciplinary or even criminal sanctions under French law. governing the transfer of personal data. Professional secrecy and trade secrets Similar legal protections apply to trade secrets. Arti- cles L.151-1 et seq. of the French Commercial Code
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