On 2 November 2010, the Paris Court of Appeal (the 'Court') issued three orders objecting to the seizure of the whole content of email boxes by the French Competition Authority (the 'Authority').
These orders question this method and whether it complies with the legal requirement to guarantee the authenticity and the integrity of the emails seized. The Court has thus ordered an expert to technically evaluate the possibility of only seizing selective content from the email boxes without compromising the authenticity of the emails. The expert will issue its report in six months.
The First President of the Court has been consulted about this matter several times, but this is the first time that the seizure of a whole email box has been questioned. It seems that the First President has been surprised that emails containing legally privileged material have been seized by the Authority.
Indeed, if the Authority is to ensure that the seizure of whole email boxes is in compliance with its obligations, the guarantees ensuring the protection of legally privileged material and the respect for privacy must not be violated.
These guarantees could be protected, for example, in two ways. First, if the Authority proceeds to carry out a selective seizure exercise inside the premises of the company while its representatives are present. Second, if the Authority adopts the European Commission's practice of sealing the seizure as a whole in the premises, and then afterwards inviting the companies to be present and participate in the selection of documents.
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