Safeguarding Of The Evidence
LexInter | February 18, 2013 | 0 Comments

Safeguarding Of The Evidence

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FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, SECOND CIVIL CHAMBER, issued the following judgment:

On the sole ground:

Whereas, according to the judgment under appeal (Versailles, March 16, 2011), the company Groupe Segula Technologies, now the company Segula Technologies (the company Segula), citing acts of unfair competition which it attributed to the company Litwin, a subsidiary of a competing company, which had hired one of its former managers, Mr X .., obtained from the president of a court of trade, ruling on request, the designation of a bailiff for the purposes of findings and investigations;

Whereas the company Segula criticizes the judgment to retract the orders of December 28, 2009 and January 15, 2010 issued against the company Litwin and to order the destruction of any copy or gluing on any medium whatsoever made within or on the premises of this company then, depending on the means:

1 ° / that the court of appeal, seized of the appeal of a decision ruling on the request for withdrawal of an order on request, must be placed on the day when it rules to assess the legitimacy of the reason justifying the recourse to an investigative measure before any trial; that in its conclusions appeal, the company Ségula Technologies specified that the legitimacy of the recourse to measures of instruction before any trial was justified in order to avoid the loss of evidence, in particular in view of the additional investigations which it had proceeded; that these investigations, carried out after the order on motion made on December 23, 2009, reported a number of telephone calls between its employees and Mr X …, leader of the company Litwin; that

2 ° / that the provisions of article 146 of the code of civil procedure relating to investigative measures ordered during a trial do not apply when the judge is seized of a request based on article 145 of the same code; that by retracting the order on request ordering an investigative measure in futurum by reproaching the company Ségula Technologies for not sufficiently supporting by evidence its assertions of acts of unfair competition and poaching committed by the company Litwin , the court of appeal, which did not examine the legitimacy of the reason given by the company Ségula Technologies but the existence of a deficiency in the administration of the evidence, violated articles 145 and 146 of the code of procedure civil;

But having, after examination of the documents produced, noted that the company Segula proceeded by assertions and did not establish having supported its request on request by the production of any objective elements demonstrating the probability of the facts of which it complained, c ‘is in the exercise of its sovereign power that the Court of Appeal, assessing the conditions of admissibility of the request, decided that in the absence of proof of the legitimate reason justifying the use of an investigative measure above all trial on the day the judge granted it, the orders had to be retracted;

From which it follows that the plea is unfounded;

FOR THESE REASONS:

DISMISSES the appeal;

Orders the company Segula technologies to pay the costs;

Considering article 700 of the code of civil procedure, rejects the requests;

Thus done and judged by the Court of Cassation, second civil chamber, signed and pronounced by Mr. Boval, the oldest adviser not prevented, in accordance with the provisions of articles 452 and 456 of the code of civil procedure in the public hearing of July 12 two thousand and twelve.

MEANS APPENDIX to this judgment

Plea produced by SCP Delaporte, Briard and Trichet, lawyer advising for the company Ségula technologies

The contested nursing judgment is criticized for having retracted the orders of 23 December 2009 and 15 January 2010 issued against the company Litwin and for having ordered the destruction of any copy or gluing on any medium whatsoever. either carried out within or on the premises of this company;

On the grounds that “besides the fact that the measures ordered must have a real interest in preventing the withering away of evidence, which cannot be the case with the delivery to the bailiff of social documents such as entry and exit registers of personnel than the companies concerned. cannot make disappear, it is for the judge, seized of a request for retraction, to verify, even ex officio, whether the request and the order meet the requirement of a legitimate reason which is contested in the present case. and characterize such circumstances; that the company Ségula Technologies recalls having exposed in its request the mandates held by Mr X … within the companies of the Citi group and the participations in these, to have been victim of the commercial solicitations of its own customers who until ‘computermade available to him; that these assertions constitute assertions; that it is not established that the company Ségula Technologies has supported its claim, by the production in support of this request of any objective elements demonstrating a loss of markets or a canvassing of any of the many customers indicated as being those of the requesting company; that even then, that the company which had dismissed MX … for fault, had full latitude to seek the trace of files whose transfer could be compromising and that the only employee, quoted like resigning and hired by the company Litwin, MY. . had been released by the applicant company, after taking an act of the breach of its non-competition obligation, of its non-competition obligation, it did not

So, on the one hand, that the court of appeal, seized of the appeal of a decision ruling on the request for retraction of an order on request, must be placed on the day when it rules to assess the legitimacy of the reason justifying the use of an investigative measure before any trial; that in its conclusions appeal, the company Ségula Technologies specified that the legitimacy of the recourse to measures of instruction before any trial was justified in order to avoid the loss of evidence, in particular in view of the additional investigations which it had proceeded; that these investigations, carried out after the order on motion made on December 23, 2009, reported a number of telephone calls between its employees and Mr X …, leader of the company Litwin;

And then, on the other hand, that the provisions of Article 146 of the Code of Civil Procedure relating to investigative measures ordered during a trial do not apply when the judge is seized of a request based on article 145 of the same code; that by retracting the order on request ordering an investigative measure in futurum by reproaching the company Ségula Technologies for not sufficiently supporting by evidence its assertions of acts of unfair competition and poaching committed by the company Litwin , the court of appeal, which did not examine the legitimacy of the reason given by the company Ségula Technologies but the existence of a deficiency in the administration of the evidence, violated articles 145 and 146 of the code of procedure civil

Analysis

Publication:

Contested decision: Versailles Court of Appeal of March 16, 2011

Titles and summaries: CIVIL PROCEDURE – Order on request – Withdrawal – Case – Lack of proof of the legitimate reason justifying the use of an investigative measure before any trial – Assessment – Timing – Scope

In matters of order on request, it is in the exercise of its sovereign power to assess the conditions of admissibility that the court of appeal decides that the order must be withdrawn in the absence of proof of the legitimate reason justifying the use of an investigative measure before any trial on the day on which the judge granted it

MEASURES OF PROCEDURE – Safeguarding of the evidence before any trial – Legitimate reason – Sovereign appreciation
POWERS OF JUDGES – Sovereign appreciation – Investigation measures – Safeguarding of evidence before any trial – Legitimate reason

Texts applied:

    • article 145 of the code of civil procedure

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