Medical confidentiality does not prevent an investigative measure (mesure d'instruction) based on Article 145 of the French Code of Civil Procedure, but it does prevent the sorting of personal medical data from being entrusted to the bailiff (huissier de justice). The judge must make such a mission subject to the prior authorisation of the patient concerned. Failing that, the judge provides for the involvement of the healthcare professional entrusted with the confidential information, or for a provisional sequestration (séquestre provisoire) whose content the bailiff does not examine.
Key points
- Medical confidentiality is not, on its own, an obstacle to an investigative measure ordered ex parte under Article 145 of the French Code of Civil Procedure.
- The measure is admissible only if it is indispensable to the exercise of the right to evidence (droit à la preuve), proportionate to the interests at stake and implemented with adequate safeguards: these three requirements are cumulative.
- The judge cannot authorise a mission infringing medical confidentiality without making its performance subject to the prior authorisation of the patient concerned.
- Where the mission requires access to files that may contain personal medical data, two routes are open. The judge provides for the involvement of the healthcare professional entrusted with the confidential information, who alone is entitled to access that data and to anonymise it, or the judge orders a provisional sequestration without any access by the bailiff to the content.
- The bailiff, confined to purely factual findings, may neither examine, nor sort, nor delete personal medical data.
A bailiff's seizure at a biology laboratory
The second civil chamber quashes the appeal decision: the judge cannot entrust the bailiff with personally examining, sorting and then deleting personal medical data. The decision discussed here (Civ. 2e, 21 May 2026, No. 22-19.299) rules on an investigative measure ordered ex parte within a medical biology laboratory.
A company incorporated under Italian law suspected a French company of fraud to its detriment. On the basis of Article 145 of the French Code of Civil Procedure, it obtained from the president of a commercial court the appointment of a bailiff tasked with an investigative measure at that company's premises. Those premises housed a medical biology laboratory, where personal medical data of patients was liable to be stored.
The company visited applied to the summary proceedings judge (juge des référés) for revocation (rétractation) of the order, without success. The court of appeal (CA Versailles, 9 June 2022, No. 21/06276) refused to revoke the order and amended it so as to exclude personal medical data from the seizure. It instructed the bailiff to correct the seizure, then ordered the lifting of the sequestration and the disclosure to the applicant company of the items taken.
On the principle, the second civil chamber approves the court of appeal: the right to evidence can accommodate medical confidentiality, subject to conditions (free translation).
medical confidentiality does not, in itself, constitute an obstacle to the application of Article 145 of the French Code of Civil Procedure, provided that the investigative measures sought, intended to establish proof of facts on which the outcome of a dispute might depend, are indispensable to the exercise of the applicant's right to evidence, proportionate to the conflicting interests at stake and implemented with adequate safeguards.
The quashing concerns the mission entrusted to the bailiff. The Court first holds admissible, as a point of pure law, the criticism based on that officer's powers. It then recalls that a court-appointed bailiff makes purely factual findings, excluding any opinion. The court of appeal could not therefore authorise the bailiff to access the files, to carry out a sorting exercise and then to delete personal medical data. The decision is quashed in its entirety, the case being remitted to the Versailles court of appeal, differently composed.
Article 145 and medical confidentiality: what remains possible
An investigative measure remains possible where health data is stored, provided that the judge organises its performance differently. The second civil chamber lays down a condition of method: the patient's prior authorisation is a precondition for any mission infringing medical confidentiality.
a judge hearing an application on the basis of Article 145 of the French Code of Civil Procedure cannot authorise a bailiff to carry out a mission that infringes medical confidentiality without making the performance of that mission subject to the prior authorisation of the patient concerned.
Where the mission requires access to files that may contain personal medical data, the decision opens two alternative routes. First route: the judge provides for the involvement of the healthcare professional entrusted with the confidential information, who is responsible for processing the health data and alone entitled to access that data and to anonymise it. Second route: the judge orders, as a protective measure, the placing of the documents taken under provisional sequestration, without authorising the bailiff to access their content.
Sequestration is not a dead end for the party seeking the measure. The person subject to the measure may ask the summary proceedings judge to rule on the total or partial lifting of the sequestration, in order to exclude media and documents containing personal medical data of identified third parties. The debate on the scope of the evidence takes place before the judge, not in the hands of the bailiff.
What changes for measures ordered ex parte
The decision extends to the investigative measure under Article 145 the solution already adopted for court-ordered expert appraisals (expertise judiciaire). The second civil chamber relies on the rule that, in the absence of a specific legislative provision, a civil judge cannot assign to an expert a mission infringing medical confidentiality without the prior authorisation of the patient concerned, subject to drawing all appropriate inferences from an unjustified refusal (Civ. 1re, 15 June 2004, No. 01-02.338, cited in the decision).
Two established points are confirmed. Medical confidentiality does not in itself defeat the right to evidence, and the opposite criticism fails in law. However, the interference must remain indispensable, proportionate to the conflicting interests at stake and surrounded by adequate safeguards. The judge's review therefore extends as much to the principle of the measure as to the practical arrangements for its performance.
What remains open concerns the substance of the dispute and the practical arrangements. The quashing is total: nothing has been decided on the suspected fraud, and the Versailles court of appeal, differently composed, will reconsider the application for revocation. The decision does not set out the detail of the anonymisation methods or the form of the healthcare professional's involvement, points left to the assessment of the judge hearing the application.
Practical points for the applicant and the company visited
The drafting of the mission entrusted to the bailiff now determines the fate of the measure. An application authorising the officer to examine, sort or delete personal medical data is exposed to revocation, since those operations go beyond the purely factual findings that the officer may make.
- For the claimant: seek, from the application stage, a provisional sequestration without access to the content, or the involvement of the healthcare professional entrusted with the confidential information.
- For the company visited: identify the media containing patient data and request that they be placed under sequestration during the operations.
- Before the judge hearing the application for revocation: that judge cannot entrust the bailiff with sorting personal medical data, even by amending the initial mission.
- In every case: keep a record of the nature of the files taken, since the debate will turn on whether the interference was indispensable and proportionate.
The checks to carry out before applying to the judge
Before filing an application targeting premises where health data is processed, the proposed mission deserves to be re-read line by line. Three questions arise. Is the measure indispensable to the exercise of the right to evidence, and is it circumscribed in its subject matter as well as in time? Does the bailiff remain confined to purely factual findings, without access to the content of personal medical data? Does the arrangement provide for the prior authorisation of the patient, the involvement of the healthcare professional entrusted with the confidential information, or a provisional sequestration whose lifting will be debated before the summary proceedings judge?
Frequently Asked Questions
Can a bailiff remove a laboratory's patient files?
No. The bailiff may neither access the content of those files, nor sort them, nor delete items from them. The decision of 21 May 2026 recalls that a bailiff makes purely factual findings. Where the mission requires access to files that may contain personal medical data, the judge must provide for the involvement of the healthcare professional entrusted with the confidential information, or a provisional sequestration without access to the content.
Is patient consent required for a seizure involving health data?
Yes. Where the mission infringes medical confidentiality, the judge must make its performance subject to the prior authorisation of the patient concerned. The decision of 21 May 2026 transposes the solution already applied to court-ordered expert appraisals. Failing authorisation, the measure must be organised differently: involvement of the healthcare professional responsible for processing the data, who alone may access and anonymise it, or provisional sequestration of the media taken.
Does medical confidentiality defeat an investigative measure ordered ex parte?
No. Medical confidentiality is not in itself an obstacle to a measure based on Article 145 of the French Code of Civil Procedure. The measure remains admissible if it is indispensable to the exercise of the claimant's right to evidence, proportionate to the interests at stake and accompanied by adequate safeguards. A mission authorising the bailiff to examine and sort personal medical data personally is, by contrast, liable to be quashed.
What can a company do when its files are placed under sequestration after a search?
The person targeted by the measure may ask the summary proceedings judge to rule on the total or partial lifting of the sequestration. That application allows media and documents containing personal medical data of identified third parties to be excluded. The scope of the evidence is therefore discussed before the judge, with adversarial argument, and not through a mere practical operation left to the officer conducting the measure.
How can the right to evidence be reconciled with confidential third-party data in business litigation?
Proportionality is the guiding principle: interference with a protected interest is in principle admissible only if the item sought is necessary to the success of the claim and if the interference remains limited to what is useful. In practice, this means defining precisely the subject matter and the period of the search, providing a mechanism to protect sensitive items, and reserving to the judge the decision on their disclosure.