How to obtain an order for investigative measures (Article 145 CPC)?

In commercial disputes, evidence often determines the outcome of the case. Emails, files, invoices, accounting records, exchanges with customers... Much of the useful evidence is held by the opposing party and may disappear. This is precisely the purpose of pre-trial discovery, better known as in futurum measures or evidentiary summary proceedings (référé in futurum or référé 145).

Article 145 of the Civil Procedure Code (CPC) allows, before filing a lawsuit on the merits, to obtain from the judge a measure intended to preserve or establish evidence of facts on which the outcome of a future dispute may depend. The request may be made in summary proceedings (adversarial) or on petition (non-adversarial).

Purpose of this article: to give you a clear method for knowing when and how to use Article 145 CPC, avoid common pitfalls (overly broad request, lack of “legitimate reason,” excessive breach of business secrecy/GDPR), and effectively prepare for the rest of the litigation.

I. Understanding Article 145 CPC in one minute

A. The rule

The judge may order, “if there is a legitimate reason,” “legally admissible” investigative measures prior to any trial, at the request of any interested party, by summary judgment or on petition.

If there is a legitimate reason to preserve or establish, prior to any trial, evidence of facts on which the outcome of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, on application or in summary proceedings. [...] – Article 145 of the Code of Civil Procedure‍

B. Jurisdiction

The territorial jurisdiction of the judge hearing the case on the basis of Article 145 CPC is, at the discretion of the claimant, either that of the court likely to hear the case on its merits or that of the place of enforcement of the investigative measure (with exclusive jurisdiction of the court of the place where the property is located if the measure concerns a property).

[...] The court with territorial jurisdiction to rule on an application made pursuant to the first paragraph shall, at the applicant's discretion, be the court with jurisdiction to hear the case on the merits or, where applicable, the court within whose jurisdiction the investigative measure is to be carried out.

Notwithstanding the second paragraph, where the investigative measure concerns a building, the court of the place where the building is located shall have sole jurisdiction. – Article 145 of the Code of Civil Procedure

C. Objectives

Article 145 CPC may be used in particular to:

Establishing acts of unfair competition (misappropriation of customers, poaching of employees, copying of files, parasitism).
Obtaining an expert opinion or targeted disclosure of documents prior to liability proceedings (manager, partner, service provider).
Securing fragile evidence (computer data, logs, messages, accounting records) before it is altered/deleted.

D. Differences

Article 145 CPC is not:

A general audit: Exploratory requests or those similar to a “civil perquisition” are sanctioned.
A classic summary proceeding: Urgency, imminent damage, manifestly unlawful disturbance, or the absence of serious dispute are not required.

II. The 5 points to check in order to obtain the measure

1. A request prior to any trial

There must be no proceedings on the merits of the same dispute at the time the request is made. This is a condition of admissibility, assessed on the day the case is brought before the judge.

Important point: the concept of “same dispute” is assessed in a substantive manner, without requiring strict identity of parties/subject matter/cause. It is sufficient, in particular, for the plaintiff to already be a party to proceedings on the merits relating to facts connected with the same dispute. On the other hand, pending proceedings on a clearly distinct subject matter do not necessarily prevent to obtain the measure.

2. Provide evidence of a potential dispute (not an abstract hypothesis)

The judge does not require that the dispute has already arisen, but it must be plausible, determinable, and related to concrete facts.

Classic example of rejection: requesting an expert opinion to quantify an issue without a clearly identified dispute (e.g., lack of legal basis for the claim).

3. Demonstrate the existence of a legitimate reason

Legitimate reason is not defined by law. In practice, it combines several ideas:

the probative value of the measure (it improves your evidence)
the plausibility of the alleged facts (objective evidence, prima facie evidence)
future action that is not manifestly doomed to failure
real difficulty in obtaining evidence otherwise (through no fault of your own)

A common pitfall: coming forward with unsubstantiated suspicions. Requests based on mere assertions are likely to be rejected. On the other hand, the judge does not have to rule on the merits. Article 145 CPC does not require to demonstrate the merits of the future claims.

4. A legally admissible, useful, and proportionate measure

The measure must fall within the categories provided for by the Civil Procedure Code (expertise, findings, targeted production, etc.) and not turn into a general investigation.

In digital cases (emails, servers, messaging systems, CRM), the judge often expects a precise definition of the scope: period, sources, keywords, file categories, sorting mechanisms.

Finally, the measure must strike a balance between your right to evidence and the rights/secrets of the other party (privacy, trade secrets, professional secrecy, personal data).

5. Choose the right route (summary proceedings vs. petition)

There are two possible routes for requesting an investigative measure in futurum:

Summary proceedings: the opposing party is summoned, there is an adversarial hearing, and then the judge issues an order.
Petition: the opposing party is not summoned (non-adversarial) and the judge rules solely on the basis of your petition.

Important: The petition route may seem tempting because it is quick and non-adversarial. However, this can backfire on the petitioner if the opposing party (the respondent) files an appeal against the order and demonstrates that there was no reason to deviate from the adversarial process. It is therefore essential to justify precisely why it is necessary to derogate from the adversarial principle (e.g., proven risk of destruction or concealment of evidence).

III. How to prepare an effective request (Checklist)

Step 1: Define the future dispute

Simply describe:

the relationship (contract, partnership, commercial relationship, competition)
the triggering event (breach, unpaid debt, departure of an employee, misappropriation of files, non-performance)
what you are considering (liability action, unfair competition, termination, damages)
the evidence held by the opposing party or third party

The judge must perceive a real and specific potential dispute

Step 2: gather preliminary evidence

Before invoking Article 145, prepare a set of evidence:

emails, quotes, invoices, terms and conditions, correspondence
CRM exports, accounting records
certificates, reports

Step 3: Define the measure to be ordered precisely

The more targeted the measure, the more likely it is to be granted:

specific period (e.g., 6 months)
named documents or limited categories
relevant keywords (for IT)
sorting/filtering and, if necessary, sequestration or confidentiality arrangements (useful in cases of trade secrets)

Step 4: Anticipate objections (trade secrets, GDPR, professional secrecy)

In practice, the defense often invokes:

trade secrets (customers, prices, strategies)
personal data (employees, customers)
professional secrecy

These secrets do not automatically block Article 145, but they do require adjustments: limitation of scope, redactions, restricted access, sequestration, etc.

Point of vigilance: lawyer-client correspondence is particularly protected and must be excluded from the scope of the measure.

Step 5: Secure the enforcement and continuation of the proceedings

From the outset, consider:

the identity of the person targeted (the person against whom the measure will be enforceable in the future dispute)
the enforcement process (penalty in case of refusal, intervention with third parties, organization of the adversarial process during the expert appraisal)
appeals: a decision ruling on a measure based exclusively on Article 145 is subject to appeal

IV. Concrete examples of the use of Article 145

A. Unfair competition between companies

A measure under Article 145 may authorize a targeted investigation/seizure (particularly of computer data) if you provide evidence and if the mission is strictly supervised (scope, time, keywords, sorting).

B. Disputes between shareholders or suspicion of mismanagement

Before bringing a liability claim, an accounting/management assessment may be requested if you can link the measure to a plausible dispute and if you are not seeking a general audit. The judge will also examine whether you had internal means of accessing the documents (rights to information) and whether the measure is truly useful.

C. Breach of contract with evidence held by the other party

Non-performance, refusal to deliver technical components, discrepancies in quantities or software access. An expert opinion or targeted communication can freeze the facts before the trial.

V. Conclusion

Pre-trial discovery is a powerful lever in business litigation, provided it is treated as a tool for gathering evidence, not as a general investigation.

Success depends on a simple equation:

no proceedings on the merits of the same dispute at the time of referral
a real and plausible potential dispute
a legitimate reason demonstrated by objective evidence
a legally admissible, useful, and proportionate measure

The challenge is twofold: to secure your evidence quickly and to avoid costly proceedings that could backfire (withdrawal of the measure, disproportion, request deemed exploratory).

Need assistance with investigative measures (Article 145 CPC)? Contact Grelier Avocat now.

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Frequently Asked Questions

How can an investigative measure be obtained prior to any trial?

You must demonstrate a legitimate reason (evidentiary value + plausibility of future litigation + action not manifestly doomed to failure) and act before any proceedings on the merits of the same dispute. The measure must be admissible, targeted, and proportionate.

Is it best to file a summary proceedings or a petition?

Summary proceedings are adversarial. The (non-adversarial) petition is used if surprise is necessary (risk of concealment/destruction of evidence). The judge must be able to justify the departure from the adversarial process in concrete terms, otherwise there is a real risk of refusal or withdrawal of the measure.

Is the investigative measure subject to an urgency requirement?

No. The urgency and criteria of “classic” summary proceedings do not apply to Article 145 CPC.

Can we request the seizure of all of a competitor's documents?

Seizing all of a competitor's documents would undoubtedly be disproportionate.

Requests that are too broad or exploratory are likely to be refused (or withdrawn) as they may be considered a general investigation. It is better to have a limited scope (period, categories, keywords, sorting).

What can be done if the other party invokes trade secrets or the GDPR?

These protections do not render Article 145 inapplicable in principle, but they do impose proportionality checks and adjustments: limitation of scope, concealment, sequestration, restricted access.

How can I handle a commercial dispute if I have no evidence?

Before filing a lawsuit, gather all the evidence you have, identify any missing evidence and its holders, and then consider targeted discovery measures. This is often the most effective approach when the evidence is held by the opposing party or a third party (documents, data, accounting records).

Can an employee or former employee be subject to an investigative measure?

An employee or former employee may be subject to an investigation under Article 145 of the Civil Procedure Code. This is a common and typical scenario (e.g., suspicion of unfair competition).

Can a third party be subject to an investigative measure?

Yes, the person subject to an investigative measure is not necessarily the person who will be your opponent in a dispute on the merits. It may be a third party to the dispute who nevertheless holds evidence.