Where the judge amends the ex parte order (ordonnance sur requête) without revoking it, the investigative measures (mesures d'instruction) already carried out do not lose their legal basis: they are not void. The second civil chamber adds that the judge must rule on the consequences of the amendment for the investigations already completed, so that they fall within the scope and limits of the order as rewritten.
Key points
- The amendment of an ex parte order, without revocation (rétractation), leaves the legal basis of the investigative measure intact: the records already drawn up are not set aside on that ground alone.
- The amended order replaces the initial order, and the measure may only be carried out in accordance with this new version.
- A judge who narrows the technician's remit must settle the fate of the investigations already completed, so as to bring them back within the scope and limits of the order.
- Rather than setting the operations aside, the judge may order the exclusion of documents falling outside the scope, their precise identification, their sequestration and, where appropriate, their destruction.
- Revocation follows a different logic: a judge who revokes the order finds that the measures carried out have lost their legal basis and are void as a result.
Revocation or amendment: what the Court held
The second civil chamber dismisses both the main appeal and the cross-appeal: a judge who amends the ex parte order, without revoking it, is not required to find that the measures already carried out have lost their legal basis (Civ. 2e, 2 July 2026, No. 23-13.688). The decision under appeal (CA Lyon, 18 January 2023, No. 22/01635) had recast the remit of the commissioner of justice (commissaire de justice) instead of setting aside the fact-finding operations.
A company complaining of unfair competition and online disparagement applied to the president of a commercial court with several identical ex parte applications (requêtes), based on Article 145 of the French Code of Civil Procedure. It sought investigative measures at the registered offices of various companies. Seven orders granted those applications and the measures were carried out a few days later. One of the companies concerned then sought revocation of the order authorising the measure at the registered office of another company; several companies intervened in the proceedings.
The judge hearing that application refused revocation, then amended the ex parte order by narrowing the scope of the authorised measures, in particular by deleting certain keywords. The court of appeal upheld the refusal to revoke. It noted that the applicant company had established a legitimate ground and the need to depart from the adversarial principle, then amended the commissioner of justice's remit so as to confine the searches in time and make them proportionate to the interests at stake.
The claimant companies argued that, by narrowing the technician's remit, the judge was necessarily required to find that the records already drawn up had lost their legal basis and were void. The second civil chamber rejects that reasoning and distinguishes the two situations, in the following terms (free translation):
Where the judge, without revoking the ex parte order, amends it by narrowing the remit entrusted to the technician, the ordering of the investigative measure, in itself, retains its legal basis derived from that order as amended.
The decision couples this principle with a duty on the judge, who may not simply rewrite the remit without drawing the consequences for what has already been seized:
However, since the measure may only be carried out in accordance with the order as amended, which replaces the initial ex parte order, the judge must rule on the resulting consequences for the investigations already completed, so that they fall within the scope and limits of the order.
The position established in cases of revocation remains intact. In that respect, the decision refers to an earlier ruling holding that a judge hearing an application to have measures declared void, where those measures were carried out on the basis of an order that the judge revokes, must find that they have lost their legal basis and are void as a result (Civ. 2e, 5 January 2017, No. 15-25.035). Revocation and amendment therefore produce distinct effects on records already drawn up.
What an amended ex parte order changes
For a company targeted by an investigative measure, obtaining a narrowing of the scope is not enough to erase a seizure already carried out. The measure survives, but within the new limits set by the judge. The issue shifts: it is no longer the wholesale nullity of the operations, but the sorting of the material seized and the safeguards surrounding whatever falls outside the scope.
In the case under review, the court of appeal set out this sorting exercise in detail. The commissioner of justice was to exclude the documents covered by the amended paragraphs of the initial order, to draw up a document allowing precise identification of the material seized, then to hand that material to the parties in person. Each party could then apply to the president of the commercial court for the implementation of the procedure protecting its own trade secrets. Finally, the commissioner of justice was to place all the material collected in sequestration and, where appropriate, to destroy it.
The applicant company does not emerge unscathed. According to the decision, the court of appeal prohibited it from using the documents seized, ordered it to return them to the professional in charge of the operations and to destroy any copies. It further provided that, failing an application to the commissioner of justice within the time allowed, the amended investigative measure would lapse and be deprived of all effect. Narrowing the scope therefore carries a real evidential cost for the claimant.
What scope for investigative measures already carried out?
The decision confirms the regime applicable to revocation and, alongside it, clarifies the regime applicable to amendment. A litigant can no longer have records already drawn up set aside on the sole ground that the technician's remit has been narrowed. Amendment does not destroy the measure: it replaces it with a tightened version, with which the operations carried out must be brought into line.
The counterpart falls on the judge. Narrowing the scope while saying nothing about the documents already copied would leave in place material collected outside the new limits. The second civil chamber therefore requires the judge to rule on the consequences of the amendment for the investigations already completed. The judge retains the choice of arrangements: exclusion, identification, handover, sequestration, destruction. The decision approves the method adopted in this case without imposing a single model.
One question remains open. The decision does not say how to proceed where sorting material within the scope from material outside it proves technically impossible. Nor does it set any time limit for completing the sorting operations, the court of appeal having itself set a deadline here for applying to the commissioner of justice.
Useful practice before the judge hearing a revocation application
Seeking only the nullity of the operations risks leaving a party with nothing where the judge chooses to amend the order rather than revoke it. An application for revocation is best coupled with precise alternative requests concerning the fate of the documents already seized.
For a company whose premises have been visited, several points deserve to be spelled out: the narrowing of scope sought, supported by keywords and time limits; the exclusion of documents falling outside that scope; item-by-item identification of the material seized; sequestration in the hands of the professional in charge of the operations; a prohibition on use by the opposing party; the destruction of copies. Protecting trade secrets calls for a separate step, which the court of appeal here referred to the president of the commercial court.
For the company applying for the measure, the lesson is the mirror image. An overly broad application exposes it to a rewriting of the remit during the proceedings, with the return or destruction of material collected beyond the limits ultimately allowed. Confining the searches in time, calibrating the keywords and documenting the legitimate ground from the outset of the application reduces that risk, even though the measure itself retains its legal basis.
Checks to carry out after an ex parte seizure
A company faced with an investigative measure carried out at its registered office should check several points before any hearing. The scope authorised by the order deserves to be compared, line by line, with the operations actually carried out. The material seized must be capable of individual identification, failing which no useful sorting is possible. The requests put to the judge should cover both revocation and, in the alternative, a narrowing of the scope together with the fate of the documents already copied. The time limit set by the judge for resuming operations, where one is set, determines the effectiveness of the amended measure.
Frequently Asked Questions
Can a judge set aside a bailiff's report if the order authorising it is narrowed?
No. Narrowing the scope of an ex parte order does not, in itself, render void the operations already carried out. In its decision of 2 July 2026, the second civil chamber held that the measure retains its legal basis derived from the amended order. The judge must, however, rule on the fate of the investigations already completed, so that they fall within the scope and limits of that order.
What happens to copied documents if the judge deletes keywords from the remit?
Documents falling outside the new scope must be set aside. In the case decided on 2 July 2026, the court of appeal instructed the commissioner of justice to exclude the documents covered by the amended paragraphs, to draw up a document precisely identifying the material seized, to hand it to the parties, to place all the material collected in sequestration and then, where appropriate, to destroy it. The Cour de cassation approved that method.
What is the difference between revoking and amending an ex parte order?
Revocation causes the order to disappear: the judge then finds that the measures carried out have lost their legal basis and are void as a result. Amendment keeps the authorisation in place by rewriting it: the amended order replaces the initial one and the measure retains its legal basis. Under the decision of 2 July 2026, the judge must then settle the consequences of that rewriting for the investigations already completed.
How can a company challenge an investigative measure ordered without it being heard?
A measure authorised without prior argument can be challenged before the judge who granted it. In principle, the company targeted puts forward its arguments at an adversarial hearing: absence of a legitimate ground, excessive scope, disproportionate interference with its interests or those of its employees. It may seek the removal of the measure and, in the alternative, its narrowing coupled with safeguards over the fate of the documents seized.
How can trade secrets be protected during a seizure of documents on company premises?
Sequestration is the main protective tool. In practice, a company whose files are copied asks that the material collected remain in the custody of the professional who seized it, and then be identified item by item before any disclosure. An adversarial sorting exercise then allows documents unrelated to the dispute, or covered by a secrecy protection, to be set aside before the opposing party can gain access to them.