FRANCE Trends and Developments Contributed by: Grégoire Bertrou, Delphine Grimond and Augustin Paperon, Willkie Farr & Gallagher LLP
– which implement the EU Trade Secrets Directive (2016/943) – prohibit the unauthorised disclosure of sensitive commercial information, including client databases, pricing policies, and proprietary technical know-how. Although US courts may issue protective orders, these measures rarely meet the higher thresh- olds imposed by French and EU law. Consequently, French companies may face a legal dilemma: com- ply with US discovery obligations and risk breach- ing domestic confidentiality laws, or refuse and risk sanctions by American courts. To avoid this dilemma, French companies will need to demonstrate to US courts why a stronger protective order and/or addi- tional measures are required to address the more stringent French and EU thresholds. The horns of a Dilemma: Legal Exposure and Strategic Tensions Enforcement of French and EU Norms by US Courts Non-compliance with US discovery orders can result in significant sanctions, including adverse evidentiary presumptions, monetary sanctions, default judg- ments or dismissals, or contempt of court findings – particularly under Rule 37 of the Federal Rules of Civil Procedure. Although the 1970 Hague Evidence Convention provides a formal mechanism for cross- border evidence requests, many US courts consider it non-exclusive and frequently bypass its procedures. This creates a real risk for French companies: they may face extraterritorial demands from US courts that directly conflict with domestic obligations under the Blocking Statute, GDPR, or French professional secrecy rules. Risk analysis: between legal theory and practical reality Violations of the French Blocking Statute are punish- able by up to six months of imprisonment and fines of EUR18,000 for individuals and EUR90,000 for legal entities. In contrast, US sanctions for failure to com- ply with discovery obligations can have more severe and immediate financial consequences, particularly for French companies with US subsidiaries, bank accounts, or commercial relationships. These may be frozen, terminated, or otherwise affected.
In practice, however, enforcement of the Blocking Statute by French authorities has been rare, leading many French entities to pragmatically weigh the com- peting risks and ultimately comply with US orders to avoid more severe consequences. This legal asym- metry often leaves French businesses in a vulnerable position, caught between conflicting obligations. Strategic support from French authorities: SISSE To assist companies in navigating this legal grey zone, French authorities have adopted a more pragmatic and supportive approach. In particular, the SISSE has been tasked with advising French companies on the legality and strategic implications of transferring sen- sitive information abroad. Created under Decree No 2022-207, the SISSE is authorised to issue guidance on the transmission of commercial, financial, industri- al, or technical data to foreign jurisdictions. This initia- tive reflects the French government’s renewed com- mitment to protecting strategic national interests and resisting excessive foreign legal interference. Above all, it provides companies with legal certainty and a formal institutional mechanism for engaging with for- eign authorities. Leveraging Artificial Intelligence (AI) Another recent tool to mitigate the costs of US Class Actions is to use AI in the context of massive discov- ery requests. Cost-efficient, legally compliant document review Artificial intelligence technologies can be instrumen- tal in managing cross-border discovery disputes, par- ticularly when balancing French and US legal require- ments. AI-powered document review tools can help companies identify, flag, and categorise sensitive materials – including personal data, privileged com- munications, and trade secrets – in compliance with legal frameworks such as the GDPR and French pro- fessional secrecy rules. These tools can also automat- ically anonymise or redact information, dramatically reducing review time and legal costs. Beyond compliance, the efficiency and precision offered by AI solutions, when handled responsibly and ethically, can significantly reduce litigation risk. By enabling faster, more accurate document processing, AI helps mitigate the risk of inadvertent disclosure and
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