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On 16 June 2011, the French Court of Cassation (the
'Court') quashed the order made by the Paris Court of
Appeal requesting an expert report on the methods for seizing
and storing electronic data found during dawn raids.
On 3 June 2009, the French Competition Authority (the
'Authority') conducted dawn raids at the premises of a
company, CSTB. The agents collected entire email boxes
including material allegedly covered by client-counsel
privilege.
This led CSBT to request the Paris Court of Appeal to annul the
entire dawn raid procedure. The Paris Court of Appeal then
ordered an expert to assess the Authority's seizure techniques,
and to determine whether only part of each relevant email box could
have been seized instead of each whole box.
The Court has now quashed this decision and held that the judges
failed to fulfil their duty by ordering an expert report without
considering the actual conditions under which the data was
seized. The Paris Court of Appeal should have looked at the
list of the documents collected and taken a view on whether some
should have been handed back to CSTB, rather than ordering an
expert report to be produced.
This decision does not contradict previous case law, which held
that the presence of emails covered by client-counsel privilege did
not invalidate the email seizure during dawn raids. In
January 2010, the Paris Court of Appeal held that an email box is a
single electronic file and therefore capable of being seized as a
whole (see Community Week issue
457).
However, it cannot be inferred from the present decision that
the Court favours seizure of email boxes as a whole.
This issue may be settled in another pending case before the
Paris Court of Appeal, where an expert report is awaited which may
influence French judges' opinion on the subject.
To view Community Week, Issue 526 – 24 June 2011 in
full,
click here.
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