Two undertakings that were subject to investigatory searches by the Competition Authority have complained of the mass undifferentiated seizure of their electronic mailboxes. The mailboxes contained items unrelated to the investigation, including personal and private emails and correspondence with the undertakings' lawyers.

According to the Competition Authority, the current state of IT techniques and the constraints inherent in the search and seizure procedure allow for only the entire contents of company electronic mailboxes to be seized. The authority held that attempting to extract only certain elements would paralyse the investigation for weeks and would affect the integrity of the data extracted.(1) The mere fact that the mailboxes contained certain elements that might be used as evidence of the alleged actions was justification for their integral seizure. The first president of the Paris Court of Appeal confirmed this view, finding in the first case(2) that the administrative authorities had convincingly dispelled the arguments put forward by the expert engaged by the undertakings, who had attempted to demonstrate that it was possible to extract only certain items from mailboxes. The Court of Cassation recently upheld the principle of the seizure of the entire contents of a mailbox on the basis that its items allegedly cannot be seized separately, and considered that the court which reviewed the operations had not been required to appoint experts to find alternative techniques for the seizure of such documents.(3)

Furthermore, the court ruled that the seizure of attorney-client correspondence or documents unrelated to the investigation was not the result of specific targeting, but was due to the composite nature of the contents of email files, which must be copied in their entirety where they contain elements that fall within the scope of the judicial authorisation. The court pointed out that undertakings may ask for documents that are irrelevant to the investigation to be protected on the basis of business secrecy. Furthermore, it was neither alleged nor established that the agents had done anything illegal to obtain correspondence covered by legal privilege, or that they had disclosed – either during or after the dawn raids – any information protected under trade secrecy to third parties. Lastly, the court noted the authority's commitment not to oppose restitution by the destruction of a series of emails. But should the court be content with the fact that there was no unfair practice in the seizure of documents and that their content was not disclosed to third parties, and not rule on the crucial issue of the use of such documents in the Competition Authority's investigation services?(4)

In the second case(5), the court once again undermined the protection of privacy, ruling that the seizure of private or confidential files or messages is not unlawful, as company email is designed for messages of a professional nature – the mere fact that the user gives messages another title does not suffice to establish that they contain private content which may not be seized.(6)

The court's two decisions are extremely worrying. In effect, they mean that the French competition authorities may seize attorney-client correspondence. It weakens the attorney-client privilege in France, the confidential nature of which constitutes one of the main guarantees in a society governed by the rule of law. The technical arguments put forward to justify the outcome in these cases are unconvincing and in no way justify the undermining of such a fundamental guarantee as the confidentiality of correspondence between lawyer and client. A ruling by the European Court of Human Rights on this issue would be welcome.

For further information on this topic please contact Joseph Vogel at Vogel & Vogel by telephone (+33 1 53 67 76 20), fax (+33 1 53 67 76 25) or email ([email protected]).


(1) Paris Court of Appeal, June 28 2011, LawLex201100001241JBJ.

(2) Paris Court of Appeal, October 25 2011, LawLex201100001764JBJ.

(3) Court of Cassation, criminal chamber, June 16 2011, LawLex201100001060JBJ, CDC 08/2011.

(4) Court of Cassation, criminal chamber, June 29 2011, LawLex201100001420JBJ.

(5) Paris Court of Appeal, October 25 2011, LawLex201100001764JBJ.

(6) Versailles Court of Appeal, February 19 2010, LawLex201000001309JBJ.