FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
5.6 Rules Disallowing Disclosure of a Document The right to privacy (protected by both civil and criminal law) can be another barrier to the pro- duction of some documents. For instance, a drone picture of a private property taken without the owner’s consent can be judged inadmissible if it was neither necessary nor proportionate. This example is indicative of the different approaches taken by, and the legal discrepan- cies between, French law and common law sys- tems. For instance, the US uses discovery and the Supreme Court applies serious sanctions on those refusing to provide information, whereas the Cour de cassation critiques fishing expedi- tions and protects other fundamental principles and interests under legal instruments, including the Blocking Statute of 1968, which prohibits any communication to foreign authorities of eco- nomic, industrial or technical information for the purpose of use as evidence, under the threat of criminal penalties. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief French law provides injunctive relief called pro- visional measures ( mesures conservatoires ) to achieve a broad range of objectives, such as: • safeguarding a right or a good (seizing money to secure a debt); • preserving evidence for a future action (seiz- ing counterfeit goods); or • preventing immediate or irreparable damage. Conservatory attachments ( saisies conserva- toires ) and judicial securities ( sûretés judiciaires ), for example, are provisional measures that ena- ble a creditor to freeze real estate or movable
to provide evidence, and ensures it is shared in due course so that the parties can prepare their defence. The judge can also go even further, ordering civil investigation measures ( mesures d’instruction ), like expertise or the hearing of witnesses. These measures are submitted to strict require- ments: the requesting party must demonstrate sufficient connection with the dispute, precisely identify the subject of the request and explain its necessity, as the judge shall not make up for a party’s deficiency in providing evidence. For instance, the judge may order in futurum investigative measures (ie, pre-trial measures), provided such measures meet various condi- tions (having a legitimate ground, being sought before trial, being proportionate to the aim pur- sued and seeking proofs upon which the resolu- tion of the dispute depends). 5.5 Legal Privilege French law recognises legal privilege under the concept of secret professionnel , under which any exchange of information between attorneys and clients is subject to professional secrecy. The infringement of professional secrecy, by either litigating or transaction lawyers (who are granted the same status), constitutes both a breach of ethical rules and a criminal offence. Therefore, respecting professional secrecy may impede the giving of certain documents or information. Business secrecy also allows a party to refuse to provide certain sensitive material, where it is confidential or key to the party’s competitive- ness.
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