On 24 April 2013, the French Supreme Court ruled that the powers of inspectors to globally seize electronic mailboxes are limited by the rights of the defence and, more specifically, the legal professional privilege ("LPP"). As a result, in 6 separate judgments, the French Supreme Court (partially) quashed 6 decisions rendered by the First President of the Paris Court of Appeal, which covered apparently three different competition investigations. One of these judgments, concerning an investigation in the IT medical field, has recently been made available.
On 9 and 10 November 2010, the French Competition Authority ("FCA") conducted an inspection at the premises of Medtronic France, an undertaking active in the IT medical field, for possible competition law infringements. During the course of the inspection, the inspectors searched and globally seized, among others, electronic mailboxes of Medtronic employees.
Medtronic challenged the validity of the search and seizure operations. It brought proceedings before the Paris Court of Appeal, requesting the annulment of the inspection and the restitution of all electronic mailboxes, on the grounds, among others, that the FCA seized communications protected by the LPP.
On 15 November 2011, the Paris Court of Appeal rejected the claims made by Medtronic. Its First President ruled that the fact that communications between lawyers and clients were seized during the course of the inspection, as part of the global and indivisible seizure of electronic mailboxes, did not affect the regularity of the procedure provided that (i) these documents were susceptible to contain matters in relation to the subject-matter and the purpose of the inspection and (ii) the searched company had the opportunity to know the content of the seized files and was able to request their restitution. The First President considered as appropriate and reasonable the restitution of such communications, to which the FCA did not oppose, as sufficient to preserve the rights of the defence and LPP.
The French Supreme Court partially quashed the order of the Paris Court of Appeal. It held that the prerogatives recognized to the FCA concerning the global seizure of electronic mailboxes during an inspection must be limited by the rights of the defence. More specifically, communications between lawyer and client are protected by LPP, and thus are confidential as regards the FCA. As a result, the French Supreme Court ruled that the rights of the defence and the LPP were not sufficiently protected by a simple restitution of the documents, even though they had not been used for the purposes of the proceedings. Therefore, in the opinion of the French Supreme Court, the Paris Court of Appeal should have examined whether these communications were in fact susceptible of being protected by the LPP. Moreover, the French Supreme Court ruled that the violation of the LPP occurs as soon as the communications are seized by the inspectors.
The French Supreme Court judgments could potentially impact the way the FCA will conduct its search and seize operations in the future, so as to better protect LPP. However, the precise implication and scope of these rulings still remain to be determined.
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