Ex parte order: the employee targeted must receive a copy

An ex parte order (ordonnance sur requête) authorising the bailiff (huissier de justice) to access an employee's personal computer and personal email account makes that employee a person subject to the enforcement of the measure. A copy of the application and of the order must therefore be left with them, under Article 495, paragraph 3, of the French Code of Civil Procedure, even where the measure is carried out solely on the employer's premises.

The essentials

• The ex parte order obtained under Article 145 of the French Code of Civil Procedure, and the application itself, must be delivered in copy to each person subject to the enforcement of the measure.
• The employee whose personal computer and personal email account are targeted is subject to the enforcement of the measure, even though the operations take place on the premises of the company employing them.
• That connection rests on Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which protects the data held on a computer, a telephone and an email account.
• Physical delivery of the copy to the employee in person, before the measure is enforced, satisfies the statutory requirement, even if the document states that they receive it on behalf of the company.

An ex parte order enforced on a competitor's premises

The second civil chamber holds that the employee whose personal devices are targeted is subject to the enforcement of the investigative measure (mesure d'instruction) (Civ. 2e, 16 April 2026, No. 23-12.123). Two companies suspected a competing business of acts of unfair competition, with the assistance of one of their former employees, who had moved to that competitor. On the basis of Article 145 of the French Code of Civil Procedure, they obtained from the president of a commercial court an ex parte order authorising various investigative measures on the premises of the competing company, in the presence of that employee.

The order authorised the bailiff, after establishing the employee's presence, to access their personal computers, if necessary their mobile telephones and tablets, and their personal email account. The bailiff carried out the assignment. The employee and the company visited then sought revocation (rétractation) of the order and the return of the documents collected. The court of appeal (CA Douai, 10 November 2022, No. 22/01622) ordered that revocation. It found two failings: the failure to leave a copy with the employee in a personal capacity, and an application reasoned in general and stereotyped terms.

As a matter of principle, the second civil chamber approves the appeal judges: the employee was indeed among the persons against whom the order was invoked. It nevertheless quashes their decision in all its provisions and remits the case to the Douai court of appeal, differently composed. Two reasons require this quashing: the copy had in fact been left with the employee before enforcement, and the application contained detailed material justifying the setting aside of the adversarial principle (free translation).

Accordingly, in order to comply with the requirements of Article 8 of the aforementioned Convention, it must be held that the person subject to the enforcement of a measure to be carried out at a company's registered office is also that company's employee, where the order authorises the bailiff, after establishing the latter's presence, to access not only the company's servers and workstations but also the latter's personal computers and personal email account.

Who must receive a copy of the application and of the order?

Every person subject to the enforcement of the measure receives a copy of the application and of the order, including the employee whose personal devices are targeted. Article 495, paragraph 3, of the French Code of Civil Procedure lays down the rule: "a copy of the application and of the order is left with the person against whom it is invoked". That delivery enables the person targeted to know the basis of the investigations and then to challenge their regularity. An applicant who omits a recipient runs the risk of the order being revoked and of the material collected being deprived of effect.

Physical delivery prevails over the wording of the service document. The appeal judges had noted that the copy had been delivered to the employee as a person authorised to receive the document on behalf of the establishment, and not in a personal capacity. The second civil chamber rejects that reasoning: their own findings established that "the copy of the application and of the order had been left with [the employee] before the measure was enforced". The statutory requirement was therefore satisfied.

Recognising the employee as a person against whom the order is invoked alters the balance of evidential litigation. The employee has information of their own about the measure affecting their personal data, rather than information received indirectly, in the employer's name. They may then refer the matter to the judge who made the order, under the conditions laid down in Articles 495 and 496 of the French Code of Civil Procedure, cited by the decision.

What the protection of the employee's private life changes

The decision refines an earlier solution that reserved to the company alone the status of person subject to the enforcement of the measure. The second civil chamber restates its position: the duty of delivery concerns only the person subject to the enforcement of the measure, whether or not that person is a potential defendant in the contemplated proceedings (Civ. 2e, 4 June 2015, No. 14-16.647, cited by the decision). A 2015 decision, also cited, had held that the company was the only person against whom the order was invoked where the measure was carried out on its premises, despite the designation of an employee (Civ. 2e, 13 November 2015, No. 13-27.563).

The decision under review maintains that criterion and adds a clarification drawn from Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It relies on the case law of the European Court of Human Rights, according to which the data held on a laptop, a telephone, computer servers and electronic messages fall within private life and correspondence. Access to an employee's personal devices amounts to an interference, which must be provided for by law and framed by safeguards.

Two points remain open. The decision makes the solution conditional on a specific configuration: an order authorising access to the company's servers and workstations, but also to the employee's personal computers and personal email account, after their presence has been established. The decision does not rule on measures confined to professional devices alone. Finally, the quashing remits the case: the fate of the investigative measure has not been settled.

How should an ex parte application be reasoned?

The application must set out circumstances specific to the case, and not a general risk that evidence will disappear. Under Article 493 of the French Code of Civil Procedure, "an ex parte order is a provisional decision made without hearing the other party in cases where the applicant is entitled not to summon an opposing party".

Two reflexes emerge for a business preparing a pre-action investigative measure. The first concerns scope: targeting an employee's personal computer or personal email account makes them a person against whom the order will be invoked. The second concerns the demonstration: the material put forward must relate to the alleged facts, the devices concerned and the persons involved. Announcing that the documents collected will be placed in sequestration (séquestre) does not make up for insufficient reasoning, as the court of appeal had noted before being quashed on that point.

The checks to carry out before applying for an investigative measure

• List every person who will be subject to enforcement: the company visited, but also the employee whose personal computer or email account is targeted by the order.
• Arrange for a copy of the application and of the order to be delivered to each of those persons before the operations begin.
• Check that the document identifies the individual in their own name, and not merely as the company's representative.
• Reason the application by reference to detailed material: evidence the risk that proof will be concealed and the need for an element of surprise.
• Draft the assignment bearing in mind that access to an employee's personal devices touches on their private life and correspondence.