Note on a decision of the Court of Cassation on the question of the seizability of documents related to a lawyer’s consultation in the context of a competition investigation on the premises of a company.

In an interesting decision of 26 January 2022, the Court of Cassation (Cass. crim. 26-1-2022 n° 17-87.359 F-D) clarifies the question of the seizability of documents related to a lawyer’s consultation in the context of a competition investigation on the premises of a company.

Attempts to infringe the secrecy of lawyer-client correspondence, which cannot be seized under Article 66-5, paragraph 1 of the Law of 31 December 1971, lead to a clarification of the scope of this principle. The question raised in this judgment concerned the seizability of internal e-mails from a company containing the analyses and advice of a lawyer. The Court of Cassation annulled the seizure of these documents by the Competition Authority even though they did not come from a lawyer. Indeed, these e-mails, although internal to the company, included the defence strategy put in place by the lawyer, in particular with regard to inspections, and therefore contained confidential data covered by the confidentiality of lawyer-client correspondence, which constituted the essential purpose of the documents seized, which the court must assess on a case-by-case basis.