Pre-action measure of inquiry (mesure d’instruction in futurum)

A mesure d’instruction in futurum is a pre-action measure of inquiry ordered before any proceedings, under Article 145 of the Code of Civil Procedure, where there is a legitimate reason to preserve or establish evidence of facts on which the outcome of a dispute may depend. Any interested party may apply for it, ex parte or in summary proceedings, and it may take the form of an official report, an expert examination or the production of documents.

The legitimate reason for a pre-action measure of inquiry

The applicant does not have to show that the action it contemplates is well founded. It must establish a concrete interest in preserving or establishing the evidence and make the existence of a potential dispute plausible. The measure is refused where it becomes general or exploratory, and the court reviews its proportionality in the light of trade secrets, if necessary by placing the documents obtained in provisional escrow.

Interplay with the saisie-contrefaçon

In patent matters, the saisie-contrefaçon under Article L. 615-5 of the Intellectual Property Code provides a specific instrument, with its own conditions and a time limit for bringing the action on the merits. The pre-action measure of inquiry remains useful for related facts: acts of unfair competition, misappropriation of know-how, the extent of a distribution. It must not be used to circumvent the safeguards attached to the specific regime, which leads the courts to examine the real purpose of the application.

What becomes of the measure

Where it is ordered ex parte, the measure is open to an application to set aside under Articles 496 and 497 of the Code of Civil Procedure. Where it is ordered in summary proceedings, it is argued inter partes, but the defendant then knows of the application and can organise its response. The choice of route therefore depends on the element of surprise sought and on the nature of the evidence to be preserved.

Key points

Article 145 opens a flexible measure, provided that the facts to be established are precisely targeted. In patent matters, it complements the saisie rather than replacing it. Escrow of sensitive documents should be requested in the application itself, because it is harder to obtain once the opponent has received the documents.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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