Non-adversarial application (Arts 145 and 493 French CPC): securing evidence before commercial litigation

A sales director resigns and joins a competitor, and three months later the order book collapses on his former portfolio. An industrial partner abruptly stops its supplies and it is suspected of having copied a process disclosed under a confidentiality agreement. A seller presented flattering accounts in support of an earn-out which, six months after closing, is not triggered. In each of these three situations, the manager knows what he or she thinks, but holds nothing that can be used before a judge: the evidence is with the adversary, on its servers, in its mailboxes, and will disappear as soon as it is warned. This guide deals with the non-adversarial route under Article 145 of the French Code of Civil Procedure, combined with Article 493 of that Code: what it allows to be seized, how it is secured, how trade secrets are handled through sequestration (séquestre), and on what conditions it withstands retraction proceedings (référé-rétractation).

The logic of the non-adversarial in futurum investigative measure

Article 145 of the French Code of Civil Procedure authorises the gathering of evidence outside any proceedings:

If there is a legitimate reason to preserve or establish, before any legal proceedings, evidence of facts on which the outcome of a dispute might depend, legally admissible investigative measures may be ordered at the request of any interested party, on application or in summary proceedings.

The text therefore offers two doors. Summary proceedings (référé), which are adversarial, are suitable where the adversary cannot make the evidence disappear (a report on a construction site, an expert appraisal of a property asset, apparent defects). The application, for its part, answers a different configuration: the evidence is mobile, erasable, and held by the person it incriminates. The adversarial route as applied to property and construction defects is detailed in our article on summary expert proceedings under Article 145 of the Code of Civil Procedure.

This second route relies on Article 493 of the French Code of Civil Procedure, which defines the order on application (ordonnance sur requête) as a provisional decision given non-adversarially in cases where the applicant is justified in not calling the opposing party. Before the president of the judicial court (tribunal judiciaire), the procedural basis is Article 812; before the president of the commercial court (tribunal de commerce), Article 875, which allows any urgent measures to be ordered on application where circumstances require that they not be taken adversarially. In a dispute between traders or between commercial companies, it is this latter combination, Articles 145 and 875, that constitutes the ordinary regime of the non-adversarial application.

The practical result is a private investigation measure supervised by the judge: a designated commissaire de justice (bailiff), accompanied where appropriate by an IT expert, arrives without notice at the premises of the competitor, the former partner or the former employee, and makes a targeted copy of files, emails and documents, within a scope defined by the order.

What the measure is not

Three confusions are costly. First, the in futurum measure is not a search: the commissaire de justice has no power of physical compulsion, and can neither force entry nor get round a refusal. The respondent's refusal is not without consequence, it is recorded in the report and can be used later, but it blocks the operation on the day.

Second, it is not a way of circumventing the burden of proof. The courts constantly recall that Article 145 of the Code of Civil Procedure does not allow the claimant's failure to adduce evidence to be made good by a general, exploratory investigation. On the other hand, the judge need not prejudge the merits of the future action: the judge checks the plausibility of a dispute, not its outcome.

Third, it is not available once proceedings have been commenced. The text requires that it be before any legal proceedings. If proceedings on the merits concerning the same dispute are already pending, the route is closed and one must switch to Articles 138 to 142 of the Code of Civil Procedure (compelled production of documents held by a party or a third party) before the pre-trial judge (juge de la mise en état). This chronological constraint dictates the order of steps: the evidence is built first, the summons comes afterwards.

Building an application that holds up

The quality of the application determines the fate of the measure. It will be read, word by word, by the adversary's counsel in the days following execution, with a single objective: to obtain the retraction of the order on application and the retroactive annihilation of the evidence collected.

Establishing the legitimate reason by objective facts

A legitimate reason requires a body of indications, not an intuition. In commercial litigation, the elements that work are material and dated: statements from customers approached by the former employee, Kbis extracts showing the registration of a competing company during the performance of the employment contract or mandate, emails found in the company's archives, comparison of technical documentation, a fall in turnover established by management control on an identified customer scope, findings of a commissaire de justice on a website or an online professional profile.

To this is added the legal characterisation of the envisaged dispute. The judge must be able to link the facts to a plausible action: unfair competition and free-riding under Article 1240 of the French Civil Code, breach of a non-compete clause or of a confidentiality agreement, unlawful obtaining or use of a trade secret within the meaning of Articles L. 151-4 to L. 151-6 of the French Commercial Code, breach of an asset and liability warranty (garantie d'actif et de passif), liability of a manager, action for insufficiency of assets under Article L. 651-2 of the French Commercial Code for an institutional creditor or a liquidator. The foundations of the unfair competition action and the means of proving the practices in question are presented in our article on proving unfair competition.

Justifying the departure from the adversarial principle

This is the main point of fragility. The courts require that the application and the order each set out the circumstances that make it necessary to dispense with adversarial debate. A general statement about the risk of evidence being lost is not enough. It is necessary to explain why, in this specific file, warning the adversary would ruin the measure: the exclusively digital nature of the items sought, the ease of deleting a mailbox or a storage space, a history of concealment, capital links allowing an immediate transfer of data to a foreign entity, behaviour already observed on a first amicable request that went unanswered.

Article 495 of the Code of Civil Procedure moreover requires that the order be reasoned. In practice, the reasoning is that which the applicant has made possible: a draft order drafted in generic terms produces a generic order, and therefore one that can be retracted.

Strictly circumscribing the scope

An excessively broad measure is as vulnerable as a poorly reasoned one. The scope is built on four cumulative axes:

• places: the exact address of the registered office, of the establishment, possibly of the home if the activity is carried on there, without an open formula such as "any other place"
• media: servers, workstations specifically identified by function, professional telephones, email accounts, sharing spaces, without extension to personal, non-professional equipment
• keywords: an exhaustive list, including the names of the customers concerned, product references, the names of the individuals and entities involved, project titles
• period: date limits corresponding to the chronology of the alleged facts, generally set on the date the relationship began and that of its termination

To these are added safeguards that the applicant has an interest in proposing itself, because they lend credibility to the proportionality of the request: exclusion of correspondence identified as belonging to the employee's private life, exclusion of exchanges covered by lawyer-client professional privilege, a prohibition on the applicant and its counsel accessing the documents before adversarial debate, a maximum period for execution of the order.

Choosing the judge and the instrument

Subject-matter jurisdiction follows the nature of the future dispute: the president of the commercial court for a dispute between commercial companies, the president of the judicial court for a mixed or property dispute or one involving a non-trader. Territorially, the application is made to the judge of the place where the measure is to be executed, which allows, for a multi-site group, several coordinated applications to be filed before several presidents and the operations to be carried out on the same day, at the same time, to avoid a cascade alert effect.

Article 494 of the Code of Civil Procedure requires an application presented in duplicate, reasoned, with a precise indication of the documents relied on. The order is enforceable on production of the original alone (Article 495), which allows intervention within very short times after the decision.

Execution: the moment the measure is won or lost

Prior handing over of the documents

Article 495 of the Code of Civil Procedure provides in its last paragraph that a copy of the application and of the order is left with the person against whom it is invoked. This formality is treated by the courts as a condition of the regularity of the measure, a guarantee of deferred adversarial debate: without prior handover, the respondent can neither understand the extent of the powers of the commissaire de justice nor effectively exercise its remedy. Omission or late handover exposes the measure to retraction. Where several companies of the same group are targeted, each must receive the copy that concerns it, which means having sought as many orders as there are legal entities targeted.

How the operations proceed

The commissaire de justice arrives, has the person in charge present identified, hands over the documents, explains the purpose of the mission and leaves the respondent the possibility of calling its lawyer. The commissaire de justice then proceeds, with the designated technician, to apply the keywords to the listed media, to copy only the files meeting those criteria, and draws up a report detailing the steps taken, any refusals, the respondent's observations and the inventory of the items taken. The care taken over this report determines the evidential weight of the result: an imprecise inventory undermines later use as much as a poorly drafted order.

Provisional sequestration

The decisive technical point in commercial litigation is sequestration (séquestre). The documents copied are not handed to the applicant at the end of the operations: they are placed in escrow with the commissaire de justice, or with a designated third party, pending a decision ruling adversarially on their disclosure.

Article R. 153-1 of the French Commercial Code, introduced by Decree No. 2018-1126 of 11 December 2018, expressly enshrines this mechanism for measures ordered on application: the judge may of his or her own motion order the provisional sequestration of the documents in order to ensure the protection of trade secrets. A request for sequestration made spontaneously by the applicant is therefore doubly rational: it shows the judge hearing the application that the measure is proportionate, and it deprives the adversary of the most effective argument in the retraction proceedings, that of the brutal capture of confidential information.

Trade secrets: a filter, not an immunity

Law No. 2018-670 of 30 July 2018, transposing Directive (EU) 2016/943 of 8 June 2016, gave French law an autonomous regime for the protection of trade secrets in Articles L. 151-1 et seq. of the French Commercial Code. The question put to the judge under Article 145 has therefore become more refined: the information sought is often, by construction, a trade secret (customer files, margins, processes, pricing terms).

The principle adopted is constant: trade secrecy does not of itself prevent an in futurum investigative measure. It requires the judge to carry out a proportionality review between the applicant's right to evidence and the protection of the respondent's confidential information, and it dictates the choice of arrangements, not a refusal of the measure.

Articles R. 153-2 to R. 153-10 of the French Commercial Code govern the handling of the sequestrated documents after adversarial debate. The judge seised of the application for release has a range of tools:

• limit disclosure or production to certain extracts, or order production only of a non-confidential version or a summary
• restrict access to the documents to a limited circle of designated persons, typically lawyers and a technician, to the exclusion of the applicant's operational staff
• appoint an independent third party to sort the sequestrated documents against the keywords and the scope of the order
• rule in chambers (chambre du conseil) and adapt the reasoning of the decision so as not to reveal the protected secret

For the applicant, the operational lesson is as follows: the aim of the measure is not to obtain all the data copied, but to obtain release from sequestration of the subset that establishes the alleged facts. A global, undifferentiated application for release invites the judge to refuse everything. A selective, document-by-document application, backed by a demonstration of its evidential usefulness, fares better.

For the respondent, the reasoning is symmetrical: the challenge to sequestration is organised in two stages, a main debate on the very validity of the order, and an alternative debate, document by document, on confidentiality and what falls outside the scope.

Retraction proceedings: the real test of the measure

A specific remedy with no time limit

Article 496 of the Code of Civil Procedure distinguishes two situations. If the application is rejected, the applicant may appeal within fifteen days. If it is granted, any interested party may apply to the judge who made the order. Article 497 adds that the judge has the power to modify or retract the order, even if the court on the merits is seised of the case.

Three practical consequences. First, the party against whom the order is invoked has no direct appeal: its own remedy is retraction proceedings, brought before the same judge, which restores adversarial debate. Second, this remedy is not confined within any time limit, which means that a measure that has been executed is never definitively secured. Third, the judge hearing the retraction assesses the existence of the legitimate reason as at the date on which the first judge ruled: elements created afterwards, in particular those resulting from the measure itself, cannot retroactively legitimise an application that was not so.

Recurring grounds for retraction

An analysis of the decisions given in this area reveals a limited number of grounds, almost always the same:

• failure to establish the circumstances justifying the exclusion of adversarial debate, in the application as in the order
• a legitimate reason reduced to assertions without documents, or based on undated suspicions
• an exploratory scope: keywords that are too generic, no time limits, extension to unidentified places or media
• failure to hand over the application and the order beforehand to each person targeted
• the commissaire de justice exceeding the terms of the mission during execution
• disproportionate interference with trade secrecy or with the confidentiality of correspondence, in the absence of sequestration and a sorting mechanism

The effect of retraction

Retraction annihilates the measure and the acts of its execution. The sequestrated documents are returned, the report becomes unusable, and the applicant finds itself in a worse position than at the outset: the adversary is now informed, alerted, and holds a procedural argument which it will raise on the merits. The non-adversarial route therefore admits no approximation: it is played once.

Choosing between Article 145 of the Code of Civil Procedure, interim payment proceedings and a summons for a fixed-date hearing

The non-adversarial application is only one instrument among three, and the choice of instrument must precede any drafting.

Three distinct objectives

Article 145 answers a deficit of evidence. It provides no immediate economic advantage, does not order anyone to pay, and does not interrupt the limitation period of the action on the merits. Its purpose is to make possible a case that, without it, would be lost for lack of evidence.

Interim payment proceedings (référé-provision), based on Article 835, paragraph 2, of the Code of Civil Procedure before the judicial court and on Article 873, paragraph 2, before the commercial court, answer a need for cash or economic pressure. They presuppose an obligation that is not seriously open to challenge, and therefore an evidential file already in place: an accepted invoice, an acknowledgement of debt, an uncontested statement of account. Bringing interim payment proceedings on a contested file leads to a decision referring the matter to the merits, which weakens the claimant's position.

The summons for a fixed-date hearing (assignation à jour fixe), authorised by the president in urgent cases on the basis of Article 840 of the Code of Civil Procedure before the judicial court, answers a need for a rapid and final decision on the merits, with full examination of the dispute. It requires a complete file from the application stage, since the request for authorisation must set out the grounds of urgency and be accompanied by the submissions and the documents. The test for choosing between summary proceedings, a fixed-date hearing and ordinary proceedings on the merits is dealt with separately in our article on the summons for a fixed-date hearing.

The sequence, more than the choice

In most cases of diversion of customers, breach of a confidentiality agreement or challenge to an earn-out, the rational sequence is ordered: non-adversarial application first, use of the documents after release from sequestration next, then a choice between interim payment proceedings and a fixed-date hearing depending on what the measure has revealed.

Two chronological errors deserve mention. The first is to issue a summons on the merits before having sought the measure, which closes access to Article 145 and sends the party back to compelled production before the pre-trial judge, less effective because it is adversarial and announced. The second is to seek simultaneously an in futurum measure and a protective measure or an interim payment before the same judge: the approach weakens the application, since the applicant asserts on the one hand that it does not have the evidence for the dispute, and on the other that the obligation is not seriously open to challenge.

Where financial exposure is the dominant risk, the investigative measure should moreover be paired with, not replaced by, a protective attachment authorised under the French Code of Civil Enforcement Procedures, so as to preserve the creditor's security during the evidence-gathering phase. Coordinating the two applications, preserving the evidence and preserving the assets, is what distinguishes a procedural strategy from a mere succession of steps.

Conclusion

The non-adversarial application is the most powerful measure in commercial litigation, and the most reversible. It makes it possible to obtain in one morning what three years of proceedings on the merits would not produce, and it can be destroyed within a few weeks by a retraction order based on a lack of reasoning or a keyword that is too broad. Our position is clear: the value of an in futurum measure is created when the application is drafted, not when it is executed. An application built on a body of dated indications, with a narrow scope, a spontaneous request for sequestration and an explicit statement of reasons for departing from the adversarial principle, holds up. A broad application that relies on the element of surprise exposes the company to a double loss, that of the evidence and that of the element of surprise, definitively spent.

Before filing, have your draft application tested by an internal opponent tasked with writing, in one page, the adversary's application for retraction: if that page is convincing, the application is not ready. And check, before anything else, that no proceedings on the merits have been commenced on the same dispute, because that fact alone is enough to close the route under Article 145.

Frequently asked questions

What is the difference between an Article 145 measure obtained on application and in summary proceedings? The basis is identical, the procedural regime differs. Summary proceedings require the adversary to be summoned and an adversarial debate before any decision, which suits measures concerning an item that cannot be altered, such as an expert appraisal of a building. The application, governed by Article 493 and by Articles 812 or 875 depending on the court, is granted non-adversarially and is justified only if circumstances require that the measure not be taken adversarially, typically a risk of destruction of data. The choice of the application must be reasoned, on pain of retraction.

How long does it take to obtain an order on application? Since the application is examined without a hearing and without summoning the adversary, the time depends on the court seised and on the quality of the file filed. Article 495 provides that the order is enforceable on production of the original alone, which allows very rapid intervention after the decision. In practice, the limiting factor is not the judge but the building of the body of indications and the logistical coordination with the commissaire de justice and the IT expert.

Does trade secrecy make it possible to block a seizure of documents at a competitor? No. Trade secrecy, governed by Articles L. 151-1 et seq. of the French Commercial Code since Law No. 2018-670 of 30 July 2018, is not in itself an obstacle to an in futurum investigative measure. It requires the judge to carry out a proportionality review and leads the judge to adapt the arrangements for the measure, in particular by placing the documents in provisional sequestration as provided for in Article R. 153-1 of the French Commercial Code, then by an adversarial sorting that may result in disclosure limited to extracts, to a non-confidential version or to a restricted circle of persons.

What should be done when a commissaire de justice arrives on the premises with an order on application? Demand the handing over of the copy of the application and the order, provided for by Article 495 of the Code of Civil Procedure, call a lawyer immediately, and have all relevant observations recorded in the report, in particular any exceeding of the scope, media containing employees' personal data and documents covered by lawyer-client professional privilege. There is no point in physically opposing the operations, since the refusal is recorded and can be used. The challenge is then pursued by way of retraction proceedings under Article 496.

Within what time can retraction of an order on application be sought? Article 496, paragraph 2, of the Code of Civil Procedure allows any interested party to apply to the judge who made the order, without confining this remedy within a time limit. Article 497 allows the judge to modify or retract the order even if the court on the merits is seised. A measure that has been executed is therefore never definitively consolidated, which justifies securing the application at the outset rather than counting on the passage of time.

Does an in futurum investigative measure interrupt the limitation period of the action on the merits? A request based on Article 145 of the Code of Civil Procedure is aimed at evidence, not the substantive right, and it is prudent to consider that it does not dispense with monitoring the time limits of the envisaged action. In a file where limitation is approaching, in particular in matters of asset and liability warranty or contractual liability, the evidence-gathering phase must be set against a reverse schedule that includes the cut-off date for the summons on the merits.

Should a summons for a fixed-date hearing under Article 840 of the Code of Civil Procedure be preferred to an in futurum investigative measure? The two instruments do not answer the same need. A fixed-date hearing presupposes a complete file from the application for authorisation, since the submissions and documents must be produced to the president, and it is of interest only if the urgency relates to obtaining a decision on the merits. The in futurum measure is, on the contrary, essential where the file is not yet probative. In unfair competition files or those involving breach of a confidentiality agreement, the usual sequence is the application first, then the fixed-date hearing or interim payment proceedings, depending on the content of the documents obtained after release from sequestration.