Disclosure of exhibits (communication de pièces)

Disclosure of exhibits is the obligation on each party to bring to the attention of its opponent, in good time, the documents on which it bases its claims. It derives from the adversarial principle laid down in Articles 15 and 16 of the French Code of Civil Procedure, and Article 132 specifies that a party relying on an exhibit is bound to disclose it to every other party to the proceedings. Disclosure must be made spontaneously and is accompanied by a schedule listing the exhibits.

Sanction for failure to disclose

The court may exclude from the proceedings exhibits that were not disclosed in good time, and it may base its decision only on documents the parties were able to debate adversarially. Late disclosure, on the eve of the close of the pre-trial phase, exposes the party to exclusion of the exhibit or to a postponement. On appeal, exhibits already filed at first instance need not be disclosed again, but any party may request it.

Compelled production

Where a party holds an item of evidence, the court may, at the other party’s request, order it to produce that item, if necessary subject to a penalty payment. Articles 138 et seq. of the same Code extend this power to documents held by a third party, save for legitimate impediment. French law has no general disclosure procedure comparable to US discovery, and the request must target specific documents. In intellectual property, the right of information also makes it possible to obtain data on the origin and distribution networks of the products at issue.

Confidentiality and the UPC

Where the exhibit contains information protected as a trade secret, the court may adjust the terms of its disclosure under Articles L. 153-1 et seq. of the French Commercial Code, by reviewing the exhibit alone, limiting it to certain elements, ordering a summary or restricting access to a confidentiality club. Before the Unified Patent Court, Article 59 of the Agreement allows a party or a third party to be ordered to produce evidence under its control, subject to the protection of confidential information.

Key points

An exhibit that has not been disclosed does not exist for the court. Check that every exhibit cited in the submissions appears on the schedule and has actually been sent, and produce it as soon as its relevance becomes apparent. Where the decisive item is in the opponent’s hands, its compelled production should be sought promptly, identifying it precisely, and arrangements for protecting confidentiality should be planned at that stage.

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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. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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