UK: What Can You "Discover" In France?

Last Updated: 2 December 1998
At the heart of the adversarial Anglo-American civil litigation system lies discovery, the process by which the parties to a litigation are obliged to disclose both helpful and damaging documents to the other side, which often comes as a painful surprise to litigants from other jurisdictions. It is no mere anecdote that discovery wins cases. In contrast, under the system which prevails in civil law jurisdictions such as France, private parties to a litigation not usually permitted to conduct discovery or indeed make any other efforts to obtain evidence from other parties; this is the role of the judge or magistrate. It is however possible today in limited circumstances to obtain disclosure of documents by compulsion in France but this is still very different from the "warehouse" approach to discovery in the Anglo-American system.

Although companies doing business in Europe may find that, while trade barriers are coming down at a rapid rate and there is a free movement in judgments, and monetary union is almost a reality, the court systems remain distinct. Each country has very different and jealously guarded rules of procedure: what might be acceptable in one jurisdiction might be a criminal offence in another. This obviously has an impact on cross border litigation where the formulation of a successful litigation strategy depends on knowing what you can and cannot bring to court. Norton Rose was recently involved in a case which illustrated the ambit of the anti-discovery laws in France.

French law no. 60-678 of 26 July 1968 (modified by law no. 80-538 of 16 July 1980)1, prohibits French individuals or companies from providing sensitive information to foreign public bodies. The example frequently cited is the US Federal Trade Commission or its international US counterpart, the International Trade Commission. Article 1(a) of the law is broader and prohibits the seeking or providing of information or documents for use in foreign judicial proceedings such as discovery.

The purpose of this law, in particular the modification adopted in 1980, was two-fold. It was intended to stymie what was felt to be the unwarranted extra-territorial application of the laws of other jurisdictions, in particular US anti-trust law, to French parties, by protecting French parties from harassment by what was considered to be the unfair use of discovery procedures in such jurisdictions. In addition, it was also intended to put a stop to the practice of "legal tourism" under which foreign lawyers would arrive in France, rent a suite of hotel rooms and issue subpoenas to French parties to give testimony or depositions for use in foreign judicial proceedings under threat of contempt of court if they failed to do so.

But how does the French anti-discovery law fit in with France's international treaty obligations? Both Article 1 and Article 1(a) of the law state that they are subject to the provisions of international treaties and conventions. France is a party to the 1970 Hague Convention on the Taking of Evidence Abroad. The Hague Convention provides three methods for the obtaining of evidence in any signatory state for use in another signatory state:

(i) international letters rogatory referred to in the Hague Convention as "letters of request". This is the only procedure provided in the Hague Convention for the obtaining of evidence from a party unwilling to provide such evidence, as it is the only proceeding under which the judicial system of the country in which the evidence is sought to be taken can apply compulsion. In order to give this procedure genuine effect in France, the French legislature actually modified the provisions of its own domestic civil procedure code so as to permit direct and cross-questioning of the parties rather than questioning only by the judge.

(ii) the taking of evidence before a diplomatic or consular officer;

(iii) the taking of evidence before persons appointed as "commissioners" for this purpose.

However, at the time of adoption of the Hague Convention there was considerable controversy as to whether the provisions permitting the compulsory taking of evidence, i.e. those dealing with letters of request, should be applied to pre-trial discovery of documents as opposed to the taking of oral evidence for direct use in court proceedings. As a result, Article 23 of the Hague Convention provides that a contracting state may, at the time of signature, ratification or accession, declare that "it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents known in common law countries". France made a declaration under the Hague Convention that a request for documents on a compulsory basis under the letters of request procedure would only be honoured if the request referred to specific documents which had a direct and precise relationship with the proceedings.

On the other hand, if the voluntary route is pursued, the request for production must be approved by ench Ministry of Justice, and also the documents may only be produced within the confines of the relevant embassy.

The different approach to discovery and evidence in the French judicial system can come as a rude shock to litigants from an Anglo-American background. Since litigation strategy is derived from the underlying legal process this is an important consideration to bear in mind.

1 (our translation)

Art 1- Subject to the provisions of international treaties or conventions, it is forbidden for any physical person having French nationality or residing habitually on French territory and for any officer, representative, agent or employee of any legal entity having its registered office or any establishment there to communicate, in writing, orally or in any other form whatsoever, in any place whatsoever, to foreign public authorities, documents or information of an economic, commercial, industrial, financial or technical nature the communication of which is of a nature as to harm the sovereignty, the security, the essential economic interest of France or public order, as specified by the administrative authorities as required.
Art 1(A) - Subject to the provisions of international treaties or conventions and to the provisions of laws and regulations in force, it is forbidden for any person to request, seek or communicate, in writing, orally in any other form. documents or information of an economic, commercial, industrial, financial or technical nature which lead to the constitution of evidence in respect of foreign judicial or administrative procedures or in connection therewith.
Art 2 - The persons referred to in articles 1 and 1(A) are required to inform the competent ministry when they are subject to any request concerning such communication.
Art 3 - Without prejudice to any greater penalties provided by law, any violation of the provisions of articles 1 and 1(A) of the present law shall be punished by imprisonment of six months and a fine of FRF 120,000 or only one of such penalties.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.

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