New French Decree on the protection of trade secrets : provisional sequestration of seized documents

French Decree No. 2018-1126 of 11 December 2018 on the protection of trade secrets, enacted in application of Act No. 2018-670 of 30 July 2018 published in the Official Journal on  December 13, 2018 establishes new rules to preserve trade secrets.

This decree modifies the rules of protection of confidentiality for seized documents. From now on a provisional sequestration will include protection of documents that may contain information related to trade secrets.

Prior to the entry into force of the French act on the protection of trade secrets judges actively used the sequestration to protect confidentiality of seized documents. This decree legalizes the jurisprudential practice by introducing the provisional sequestration of seized documents.

Article R 153-1 of the French Commercial Code now allows judges, to directly order the provisional sequestration of seized documents, based on Article 145 of the Code of Civil Procedure, in order to ensure protection of trade secrets.

 

The decree amends articles R. 521-2, R. 615-2, R. 623-51, R. 716-2 and R. 722-2 of the Intellectual Property Code in the same way in order to give the same powers to the judges who authorize infringement seizures.

However, it is only a temporary sequestration of seized documents. For a period of one month, the party or third party claiming that documents contain trade secrets may ask the judge to amend or withdraw his order.

According to Article R. 153-3 of the French Commercial Code, it is the responsibility of the party or third party claiming trade secrets to ask the judge to withdraw his order before a deadline set by the judge. It is up to the party to provide the following:

– The full confidential version of the document

– A non-confidential version or a summary of the document

– A statement specifying the reason why the document or a portion of the document is considered a trade secret

The judge may also hear separately the holder of the document, assisted or represented by an authorized person, and the party that appeals the order.

In case the party claiming that the document contains trade secrets has not sent an application to withdraw or amend the order within one month, the judge may rule on the total or partial lifting of the sequestration. If it is lifted, the documents can then be sent to the applicant.

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