A bailiff may be authorized to search a personal e-mail for the purposes of a civil lawsuit between two private persons.

Indeed, the Court of Cassation has just handed down a ruling (Cass. civ 1è, 20 Sept. 2017, No. 16-13.082) declaring that respect for privacy is not in itself an obstacle to a search authorized by order on the basis of article 145 of the Code of Civil Procedure.

The search need only be authorized by a judge, but the person concerned is not necessarily called upon to explain himself or herself, or even warned. For it is not an adversarial procedure.

It is used if it is necessary to seek and preserve evidence for a trial designed to protect the legitimate rights of the complainant, the judges explain. They add that it cannot be considered intrusive or invasive of privacy, as long as the search is limited to files and correspondence related to the facts in question.

In the present case, one entrepreneur accused another of unfair competition and concealment by using his personal mailbox rather than that of his company.

On the basis of these suspicions, the judge can therefore secretly order search measures which he entrusts to the bailiff.

The intrusion into personal documents was necessary and proportionate to protect the rights of the complainant, according to the magistrates. The only requirement was that the judge had to find this out by giving his or her authorization.

by Lionel Costes