How to challenge an investigative measure in futurum (Article 145 CPC)

Article 145 of the Civil Procedure Code (CPC) is a powerful tool in business litigation in France: it allows you to obtain, prior to any trial, an investigative measure to preserve or establish evidence (expert opinion, report, production of documents, etc.).

But when your company or you yourself are the subject of a 145 order (référé in futurum or référé 145), it is essential to take back control and not let your opponent get the upper hand.

In this article, you will find:

• the remedies available depending on the type of order (petition or summary proceedings)
• the deadlines to watch out for (including the pitfall of the two-year time limit)
• the most effective grounds for contesting (contradictory, legitimate grounds, proportionality)
• a concrete action plan for companies, managers, and employees

I. The legal framework in two minutes: What is the purpose of Article 145 CPC?

Article 145 CPC allows to request a judge to order, prior to any trial, investigative measures if there is a legitimate reason to preserve or establish evidence of facts on which the outcome of a dispute may depend.

A request based on Article 145 CPC:

• may be made in summary proceedings (adversarial procedure) or on petition (non-adversarial procedure).
• falls within the jurisdiction of the court with jurisdiction over the merits of the case or the place where the measure is to be carried out.

II. Responding to an order issued on the basis of Article 145 CPC

Step 1 – Identify the type of order: petition or summary proceedings?

This is the starting point for any strategy: the recourse options are not the same.

A. Order on petition (non-adversarial)

An order issued on petition is a decision rendered without adversarial proceedings.

If the petition is denied by the judge, you will never be informed (unless the party reveals it voluntarily or inadvertently). If the petition is accepted, you will be informed on the day the order authorizing the investigative measure is carried out. A judicial officer will give you a copy of the petition and the order granting it.

In practice, the order is issued on petition when the petitioner invokes a risk of concealment/destruction of evidence.

B. Summary judgment (adversarial)

The summary judgment is issued on an adversarial basis.

You should therefore have received a summons to appear before the French Commercial Court (now the Economic Activities Court in Avignon, Auxerre, Le Havre, Le Mans, Limoges, Lyon, Marseille, Nancy, Nanterre, Paris, Saint-Brieuc, and Versailles) or before the Judicial Court.

At the end of the proceedings, the judge will issue an order authorizing or rejecting the investigative measure requested by the opposing party. If the judge orders the measure, there are avenues of appeal (see Step 2 below).

If you have just received a summons and the judge has not yet ruled, you must appoint a lawyer to represent you. The main arguments you can put forward before the judge are the same as in the case of an appeal against the order authorizing the investigative measure (see Step 3 below).

Step 2 – Appeal: what procedure and time limits?

A. If Order 145 is issued on petition: withdrawal (référé-rétractation) first

1. The first remedy: withdrawal summary proceedings

When the petition is accepted, any interested party may refer the matter to the judge who issued the order: this is a request for withdrawal (or modification) of the order. This remedy aims to restore the adversarial process.

The judge may modify or withdraw the order, even if the case is subsequently referred to the trial judge.

The judge has the power to modify or withdraw his order, even if the trial judge is hearing the case. – Article 497 of the Civil Procedure Code

Key points:

• Jurisdiction: the same judge who issued the order. In practice, this is the President of the competent court.
• Time limit: there is no specific legal time limit for filing a withdrawal summary proceedings, but in practice it is necessary to act as quickly as possible.

Very important: In the event of provisional escrow (séquestre provisoire) to ensure business secrecy (Articles L. 153-1 and R. 153-1 et seq. of the French Commercial Code), it is essential to act within one month of the decision being served. Failing this, the escrow will be lifted and the seized documents will be sent to the petitioner.

2. The second remedy: appeal

The decision on the withdrawal (summary judgment) is in principle subject to appeal under the summary judgment rules.

The time limit for appeal is 15 days from the date of service of the decision. Where applicable, the parties may avail themselves of the distance time limits provided for in Articles 643 et seq. of the CPC (allowing for an additional 1 to 2 months in certain situations related to the distance of the party concerned).

The summary judgment order may be appealed unless it is issued by the first president of the court of appeal or has been issued as a final decision due to the amount or subject matter of the claim. An order issued as a final decision by default may be challenged.
The time limit for appeal or opposition is fifteen days. – Article 490 of the Civil Procedure Code

B. If order 145 is issued in summary proceedings

1. Immediate appeal

An order issued on the basis of Article 145 of the Civil Procedure Code may be appealed immediately (Cass. ch. mixte, May 7, 1982, No. 79-12.006).

As with appeals against orders ruling on withdrawal summary proceedings, the time limit for appeal is 15 days from the date of service of the decision.

Where applicable, the parties may also avail themselves of the distance time limits provided for in Articles 643 et seq. of the Code of Civil Procedure (allowing for an additional 1 to 2 months in certain situations related to the distance of the party concerned).

2. The pitfall of the 2-year deadline

If the order has not been served, the 15-day period does not run. However, it is important to note that a two-year deadline still applies: if the judgment has not been notified within two years of being handed down, the party that appeared in court is no longer eligible to lodge an appeal after this period (Cass. Civ. 2, June 6, 2013, No. 12-21.683).

This solution can also be applied to orders issued in withdrawal summary proceedings.

Step 3 – Grounds for challenge: the most relevant arguments

Effective arguments are structured in two blocks: (1) the conditions of Article 145, (2) the procedure (petition/adversarial/form).

A. Challenging the substantive conditions

1. Existence of a lawsuit already pending on the same dispute

Article 145 presupposes a request prior to any lawsuit on the same dispute: if proceedings on the merits are already pending, this is a ground for dismissal that cannot be overcome.

Note: The absence of proceedings on the merits is assessed on the date the case is brought before the judge (i.e., the date on which the petition is filed or the date on which the summons is filed).

2. Absence of “legitimate grounds”

This is one of the central points: no legitimate grounds, no Article 145 measure.

In concrete terms, you are challenging:

• the absence of a real future dispute
• the exploratory investigative measure (fishing expedition)
• the probative uselessness (what is requested does not shed light on the identified dispute)

3. Measure that is inadmissible, useless, and disproportionate

The measure must be limited in its scope and duration: anything that is too broad, intrusive, or untargeted is contestable.

In practice, this can be useful in getting the judge to modify their order: limitation of period, sorting by keywords, filtering by expert, sequestration, etc.

B. Challenging the formal requirements

1. Lack of justification for the departure from the adversarial principle (order on petition)

An order on petition is only admissible when circumstances require that the opposing party not be summoned.

The judge hearing the appeal must verify that the petition and the order describe specific circumstances (not general and abstract statements). This is an argument that should not be overlooked.

Arguments accepted by case law:

• Risk of evidence disappearing invoked in a general manner, without detailed evidence. Case law sanctions this type of stereotypical reasoning.
• Risk of evidence being destroyed solely on the basis of the electronic nature of the documents. The volatility of data is not sufficient to justify the derogation from the adversarial principle.
• Formal notice sent before the petition is filed. In a controversial decision, the French Supreme Court (Cour de cassation) ruled that the prior formal notice precluded the element of surprise sought by the petition and that the derogation from the adversarial principle was therefore not justified (Civ. 2, January 18, 2024, No. 21-26.001).

Note: The judge hearing the appeal must consider the situation at the time the order on petition was issued to assess whether the derogation from the adversarial principle was justified. In other words, it is not possible to justify the derogation from the adversarial principle retrospectively. Only the grounds mentioned in the petition and the order must be taken into account.

2. Formal irregularities: Documents, notification, scope of the mission

In practice, three checks are frequently carried out:

• the request must include a precise indication of the documents referred to
• the order must be reasoned and a copy of the request and the order must be left with the person against whom it is directed
• the mission entrusted to the judicial officer/expert must be sufficiently defined (otherwise, it may be challenged on the grounds of generality and excessive infringement)

C. Business secrecy and sensitive data

In business litigation, Order 145 often targets strategic documents (customer files, prices, margins, source codes, contracts).

You can ask the judge for:

• a sequestration (documents placed under seal, access limited to lawyers)
• sorting by an expert/bailiff using keywords
• the concealment of unnecessary data
• a strict limitation of timeframe and medium

These arrangements make it possible to reconcile the right to evidence with business secrecy.

III. Action plan for responding within 72 hours

1. Identify the type of order: petition or summary judgment, date, jurisdiction, scope.
2. Secure a record of what has been done: minutes, inventory, copies of documents, supports concerned.
3. Hire a lawyer to represent you and start gathering information on:
   • derogation from the adversarial principle (if petition)
   • legitimate grounds / potential dispute
   • proportionality / trade secrets
4. Anticipate the merits: if a trial is likely, start building your litigation strategy now.

IV. Conclusion

Challenging an order issued on the basis of Article 145 CPC is both a technical and strategic exercise.

The key is to quickly identify the type of procedure (petition or summary proceedings), choose the right avenue of appeal (withdrawal summary proceedings or appeal), and attack methodically: legitimate grounds, adversarial principle, proportionality, protection of trade secrets.

For the person subject to the order, the challenge is clear: protect their interests (data, secrets, reputation) and not let the opponent gain a decisive procedural advantage.

Are you subject to an investigative measure (Article 145 CPC)? Contact Grelier Avocat without delay.