How do you react when a foreign court orders the production of certain documents?
Foreign courts, such as English or American courts, can order French entities or entities having interests in France, party to civil proceedings to produce documents.
A French party to a civil dispute abroad receives, from the foreign court, a discovery order for the production of documents
A French entity receives a discovery order for the production of documents from a foreign court, and wishes to respond while complying with its French legal obligations.
Our client's challenge
Responding to a discovery order for the production of documents from a foreign court
Before producing any documents following receipt of a discovery order, the French entity must determine whether the requested documents fall within the scope of Articles 1 and 1bis of Law No. 68-678.
In this context, it is mandatory to refer the matter to the Service de l’information stratégique et de la sécurité économiques (SISSE), which must respond within one month as to the applicability of Law No. 68-678.
If the SISSE determines that the documents requested by the foreign court fall within the scope of Law No. 68-678, they cannot be produced without the application of an international convention such as the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. This convention stipulates that evidence may be communicated by rogatory commission between signatory states, or through commissioners who will be responsible for supervising the possibility of appointing a commissioner who will be responsible for the collection and transfer of documents.
Our way
Ensure document production complies with French law
We support our clients throughout the entire procedure, from receipt of the discovery order to the transfer of the documents, in coordination with the lawyers instructed in the foreign civil proceedings.
We regularly advise our clients on the applicability of Law No. 68-678, and contact the SISSE to obtain its opinion, as required since the Decree No. 2022-207 of 18 February 2022.
We also assist our clients with evidence-gathering procedures under international conventions such as the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. We coordinate with the lawyers instructed in the foreign civil proceedings to ensure that the foreign court approves the use of such international conventions for the collection of these documents.
Finally, we are regularly appointed as commissioners, in the context of this Convention, to supervise the production of documents by French entities in foreign proceedings.