How to preserve evidence before commercial trial ? Newsletter by Hoche Avocats
Hoche Avocats (Commercial & Busines Litigation department) is pleased to inform you on the last investigative measures before trial.
How to preserve evidence before commercial trial?
News on investigative measures (or “in futurum measures”) before trial: Article 145 of the French Code of Civil Procedure
It is often said with good reason: “The law is the proof”. And it is up to each party to prove the facts on which it relies (article 9 of the French Code of Civil Procedure). But it is possible to obtain evidence that is held by third parties, under certain conditions, even if we stay away from the Anglo-Saxon discovery procedure.
In any case, the party alleging the fact to be demonstrated must not itself have sufficient evidence to prove the fact necessary for the resolution of the dispute. The investigative measure must not only make up the lack of the person requesting it, whereas he could have obtained this evidence otherwise (article 146 of the French Code of Civil Procedure).
Article 145 Code of Civil Procedure provides that legally admissible investigative measures may be ordered at the request of any interested party, by motion (“sur requête”) or by an emergency writ of summons (“en référé”), if there is a legitimate reason to preserve or establish before any trial the evidence of facts on which the resolution of a dispute may depend. This procedure thus makes it possible either to provide evidence of complex facts (in particular in matters of unfair competition, counterfeiting, disputes between shareholders, commercial leases, etc.) or to ensure the protection of certain evidence whose preservation is threatened.
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