On January 26, 2022, the Criminal Chamber of the French Cour de cassation (the French Supreme Court) has ruled for the first time that companies’ internal documents summarizing or forwarding outside counsel’s legal advice in connection with anticipated litigation are protected by the French legal privilege (secret professionnel). The French case law is therefore gradually moving closer to the EU one.
In May 2014, the French Competition Authority (“FCA”) carried out dawn raids on the premises of a private company in relation to alleged vertical and horizontal anticompetitive practices. The dawn raids followed a preliminary round of unannounced inspections carried out on the premises of the company’s competitors in 2013. During the 2014 raids, the FCA seized a number of files, including internal documents reflecting a defense strategy laid down by the company’s outside counsel in connection with the FCA investigation.
The company successfully challenged the validity of the dawn raids. In a decision dated November 8, 2017, the First President of the Paris Court of Appeals annulled the seizure of (i) several internal documents “referring to” or “restating” the strategy developed by the company’s outside counsel in the context of the ongoing investigation and (ii) a number of internal documents used by said outside counsel for the purpose of assessing a possible leniency application. The First President considered that although the documents had not been sent by or to an outside counsel, they explicitly referred to a defense strategy prepared by an outside counsel and, therefore, their seizure infringed the company’s rights of defense. The FCA appealed the Court of Appeals’ ruling before the Cour de cassation.
The Cour de cassation’s decision
The FCA argued before the Cour de cassation that, under the current state of the law, French courts must apply an organic criterion when determining whether a document is covered by legal privilege, i.e., whether the document was sent by or to an outside counsel.
The Cour de cassation rejected the FCA’s argument. It held that the Court of Appeals rightly considered that the seized documents’ “main object” was confidential information covered by the legal privilege, even though these particular documents had not been sent to or by an outside counsel.
The decision therefore acknowledges that the FCA and French courts should use an in concreto approach when assessing whether a document is covered by the legal privilege (i.e., focusing on the content of the document and, in particular, checking whether the document refers to or repeats legal advice from an outside counsel), as opposed to an in personam approach, which focuses on the author of the document. As a consequence, in-house lawyers’ comments or summaries of a defense strategy laid down by an outside counsel in internal documents/emails fall under the French legal privilege protection.
With this ruling, the French case law is gradually aligning with the well-established EU case law on EU legal privilege should apply. Indeed, EU case law has been stating for a long time that legal privilege extends not only to companies’ internal documents confined to reflecting lawyers’ advice, but also to internal documents drawn up exclusively for the purpose of seeking legal advice from an outside counsel. 
Editor: Anita Magraner Oliver
 The Cour de cassation used the term “reprend” in French.
 According to the landmark Hilti case, legal privilege applies to “internal notes which are confined to reporting the text or the content of communications received from independent lawyers” (CFI, Case T-30/89, April 4, 1990, Hilti).
 CFI, joined cases T-125/03 and T-253/03, September 17, 2007, Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd v. Commission. In previous 1982 AM&S ruling, the European Court had already found that EU legal privilege also applies to “written communications that emanate from an outside counsel for the purposes and in the interests of the client’s right of defence” (ECJ, Case 155/79, May 18, 1982, AM&S Europe Limited v. Commission).