• Data Seizure: The Need for IT Expertise Is Dismissed
  • July 29, 2011
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • Summary

    On 16 June 2011, the criminal section of the French Supreme Court (Cour de Cassation) quashed a decision by the Paris Court of Appeal which had requested the opinion of a technical expert. The appointed expert had been asked to verify whether electronic mailboxes are technically indivisible and can therefore only be seized as a whole. The French Competition Authority (FCA) relies on this theory of indivisibility to justify its seizure methods. Through this judgment, the Cour de cassation has further reduced the scope of judicial control over the way in which the FCA conducts search and seizure operations (SSO).

    CSTB contested the legality of the SSOs carried out in its premises, arguing it was the victim of a violation of legal professional privilege which protects correspondences with lawyers. This violation should, in its view, lead to all seizures being cancelled and not to the mere restitution of the documents unduly seized. In the proceedings, the FCA was granted an immediate assessment of its appeal and the suspension of the measure requested by the Paris Court of Appeal. The measure which was eventually quashed was to determine whether it would be technically possible to seize messages in a selective manner, by limiting seizures to only documents or files relevant to the investigation and listing them in a comprehensive inventory, while preserving the authenticity of the documents.

    The FCA argued in favour of the legality of its SSOs “having regard to the technical restraints concerning the seizures of electronic documents”; the Court of Appeal requested a technical expert opinion aimed at clarifying the scope and the extent of those “restraints”. The Cour de Cassation’s decision is both surprising and definitive, holding that such a measure could not be ordered as it had “no practical relevance for the litigation”. Furthermore, the Cour de Cassation declared the Court of Appeal should have confined itself to (i) “specifically verifying the legality of the SSOs, on the basis of the minutes and the inventory”, and (ii) “ordering the restitution of the documents it believed to be illegally seized or in violation of the defendants’ rights”.

    The decision to quash the measure by the criminal section of the Cour de Cassation mirrors three decisions made by the commercial section on 18 January 2011. The decisions suggest that the presence of messages covered by legal professional privilege within the seized mailboxes is not sufficient to invalidate the whole seizure operation and can only lead to the restitution of the documents concerned. The criminal section however went even further in its reasoning, by considering that the FCA is not obliged to even try to identify seizure techniques which would be less invasive having regard to the defendants’ rights. According to the Supreme Court, the matter of knowing if these techniques exist is irrelevant to the litigations’ subject matter.

    The outcome of this decision is radical, in that even if there is an appeal against the procedure of the SSO, this does not automatically suspend the investigation. Consequently, the FCA may unduly examine information which it would otherwise have no right to seize. This process is less protective than, for instance, the one used by the European Commission, which sorts out electronic messages on the spot.  This decision effectively allows the authorities in France, a country renowned for its human rights and individual liberties policies, to carry on using seizure mechanisms which arguably violate fundamental principles, especially the legal privilege principle.
    In addition, there are doubts as to the effectiveness of any control operated over SSOs when the judges’ involvement in the matter is limited to obscure minutes and inventories which regroup thousands of messages and documents. Contrary to the Cour de Cassation’s statements, the matter of indivisibility of e-mail accounts remains the core of the debate.

    The likelihood that the Supreme Court will overturn its decision are diminishing - but it will nevertheless be interesting to know the conclusions reached by experts appointed by the Paris Court of Appeal in a different case which was heard on 2 November 2010 (see Competition Newsletter n° 9); in this case, the appointment of experts was not cancelled despite the appeal lodged against this Measure by the FCA (Court of Appeal, 10 May 2011).