Gaining access to essential evidence can be a challenge, especially when it is in the possession of an opposing party or requires specialized technical skills for extraction.

Article 145 of the French Code of Civil Procedure offers an effective solution. Indeed, it is a powerful yet often overlooked legal tool, allowing parties to secure evidence before any trial:

“if there is a legitimate reason to preserve or establish, before any trial, proof of facts on which the resolution of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, on application or in summary proceedings“.

What does Article 145 Fr. CCP offer?

Article 145 Fr. CCP enables interested parties to request the court to preserve or establish crucial evidence through legally permissible investigative measures. These can include:

• Seizing evidence from third parties or opponents
• Requesting document production
• Temporarily sequestering documents
• Appointing a court expert for technical assessments

Conditions for obtaining In Futurum Measures

There are three main conditions to obtain an In Futurum Measure:

• The request must precede any main proceedings on the same matter;
• The applicant must justify a legitimate reason, with the evidence being useful and directly related to a potential future “plausible” litigation;
• The measure requested must be legally admissible, that is to say strictly proportionate to the specific claim of the future litigation, not in violation of professional secrets such as medical confidentiality, etc.

Referral to the judge

The matter is presented to the President of the competent court (also name “Judge of the Emergency”) through:

• Summary proceedings, involving quick writings and oral pleadings between the parties before a decision is made;
• Non-adversarial application, excluding any information of the opposing party be informed before the application of the judge’s order, provided the circumstances so requires (for instance if there is a risk of evidence being destroyed by the opposing party).

Implementation

Implementation can involve, depending on the requested measure:

• Document seizure: a court commissioner, often aided by IT specialists and IT tools, access the designated premises (often the opponent’s), obtains the requested documents, which are then copied and sent to the applicant (before the Commercial Court of Paris, there is a sequestration period previously organized under the court commissioner’s control, allowing the opponent to challenge the seizure in the meantime).
• Judicial expertise: a designated expert investigates the causes of submitted technical matters and provides a technical report to the judge.

Retraction of an In Futurum measure

It is possible for a party subject to an In Futurum measure to request the retraction and/or modification of the latter. For that, said party will have to submit a request before the judge who ordered the In Futurum measure, through summary proceedings and in principle without a time limit.

The decision that retracts or confirms an In Futurum measure may then be appealed within 15 days.

Benefits of Article 145 Fr. CCP

• Evidence Protection: ensures vital evidence is preserved, safeguarding against alteration or destruction.
• Evidence Transmission: vital evidence may be transmitted to the injured party;
• Reactivity: provides a swift response to protect interests before legal proceedings start;
• Flexibility: offers a range of investigative measures tailored to specific dispute needs.

Defending against an In Futurum Measure

• As a precautionary measure, appoint a company representative for eventual investigation organized in the company;
• Inform reception and secretarial staff of the designated representative;
• Verify the identities of the justice commissioner and any accompanying individuals (e.g. IT specialist), to ensure they have been allowed by the judge to intervene;
• Generally, the commissioner should await the company’s decision before proceeding;
• Ensure compliance with the judge’s order and retain copies of seized documents, for study by your attorney;
• Document any challenges that may arise.

While opposing an In Futurum Measure is possible, compliance is often recommended to avoid unfavorable judicial inferences.

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For further details or assistance in French investigation matters, please contact Anne Bourdu (anne.bourdu@lext.fr), Marie Schwartz (marie.schwartz@lext.fr), and Eva Heydon (eva.heydon@lext.fr).

Disclaimer: This article is intended for informational purposes only. It does not constitute legal advice or a comprehensive analysis of the matters discussed.