One of the alternatives provided by French law to the absence of pre-trial discovery of documents as known in the United States is for any party willing to obtain key-documentary evidence from another party in the action, or from a third-party, to seek a court order to the effect that such evidence be produced, possibly under penalty of a fine for each day that it is outstanding. This procedure is regulated by article 10 of the Civil Code and articles 11, al.2 and 138 to 142 of the New Code of Civil Procedure.

However, third-parties can be excused from producing the requested documents if they can make the case that they are under a legitimate impediment not to disclose them (articles 11, al.2 and 141 of the New Code of Civil Procedure). For example, the attorney-client privilege constitutes a valid excuse.

The applicable regulation provides no such excuse regarding parties to the action. It was thought that this was because a party to a proceeding is, pursuant to article 10 of the Civil Code, bound by a duty to collaborate with the court's endeavors in order to discover the truth. In a matter where a bank that was a party to a court proceeding had challenged an order that it produce documents it considered to be protected by banking secrecy (known in France as 'secret bancaire', article 57 of the law of January 24 1984), the Commercial Division of the French Supreme Court (Cour de cassation) denied the bank the right to obviate the court-ordered production of documents since it was a party to the proceeding and could not as such raise an excuse based on the existence of a legitimate impediment (Cass. com. June 19 1990).

In a judgment dated January 27 1999 the Social Division of the Cour de cassation found that, as a matter of principle, a party to a proceeding could be excused from producing a court-ordered document if such party could show that it was prevented from doing so by a legitimate impediment. The bank prevailed in its argument that bank-client privilege applied to the requested documents and constituted a legitimate impediment to the requested production. The Social Division of the Cour de cassation seemed to consider that when reviewing the issue of whether or not a document should be produced, lower courts should consider the nature of the document and of the alleged impediment rather than focus on whether the person from whom the document is sought is a party in the action or not.

However, judgments of the Social Division of the Cour de cassation do not prevail over judgments decided by its Commercial Division. Consequently, the January 27 1999 decision of the Social Division does not prevail over the June 19 1990 decision of the Commercial Division. Before one draws the conclusion that this question has been reversed, one should wait until the same question is brought anew before the French Supreme Court (for example the Second Civil Division which decides mainly on procedural issues or the Commercial Division).

For further information on this topic, please contact Philippe Blaquier-Cirelli at Jeantet & Associés, Paris office, by telephone (+33 1 45 05 80 08) or by fax (+33 1 47 04 20 41) or by e-mail ([email protected]). Alternatively, contact Elie Kleiman at Jeantet & Associés, New York office, by telephone (+1 212 314 9499) or by fax (+1 212 582 3806) or by e-mail ([email protected]).

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