A document your opponent needs to prove its case sits in your files, and you would rather it stayed there. Ten years ago, invoking trade secrecy might have ended the conversation. It no longer does. French commercial litigation has, over the past three years, undergone a reshaping of its law of evidence that shifts the debate from whether a protected document can be produced to how its production is managed. Here are the six points that now decide the outcome.
1. Trade secrecy is a regime for handling the document, not a ground for refusing it
The Commercial Chamber holds, under the combined authority of Article L. 151-8, 3°, of the Commercial Code and Article 6(1) of the European Convention on Human Rights, that the right to evidence can justify producing material covered by trade secrecy (Com., 5 June 2024, no. 23-10.954; Com., 5 February 2025, no. 23-10.953). Simply invoking secrecy against a disclosure request no longer blocks anything by itself. The question a court now asks is not whether the document is protected, but under what conditions its production can proceed.
2. The test has two stages, and the order between them is not optional
Production is admissible only where it is indispensable to exercising the right to evidence and the infringement is strictly proportionate to the aim pursued. The First Civil Chamber has clarified that these two requirements are not interchangeable: the court must first ask whether the document is indispensable — whether no reasonably available alternative existed to establish the same fact — and only reaches proportionality if the answer is yes (1re Civ., 4 March 2026, no. 24-12.114). A document that is merely useful, when a less intrusive alternative exists, does not clear the first hurdle, and the case for producing it fails before proportionality is ever discussed.
3. The one-month deadline to challenge an escrow order is a cut-off, not a starting point
Where a court orders seized documents placed under provisional escrow, a company subject to the raid that does not apply for variation or discharge within one month of service of the order loses the right to invoke trade secrecy to oppose release of the escrow (Com., 14 May 2025, no. 23-23.897). This is the deadline our guide’s title refers to, and it is the single most consequential date in the entire procedure: miss it, and the substantive merits of the confidentiality claim become irrelevant. Article R. 153-1 of the Commercial Code has three paragraphs, and each has produced a published judgment between 2024 and 2026: the first allows the court to order provisional escrow of its own motion; the second releases the escrow automatically once the one-month window for a variation or discharge application has passed unused; the third gives the interim-relief judge jurisdiction to rule on total or partial release. As of January 2026, the Commercial Chamber went further still, holding that even where a variation application is filed in time but dismissed, release of the escrow follows automatically from the date of the dismissal judgment, unless the court decides otherwise (Com., 28 January 2026, no. 24-15.386) — closing off a further avenue companies had used to keep documents locked up after losing on the merits.
4. Proportionality is not argued in submissions — it is demonstrated through a technical protocol
What the Commercial Chamber validates is not a stated intention to be careful with sensitive data, but an operating protocol built in advance: pseudonymised data, destruction of source material once the relevant fact is established, no access to message content beyond what is strictly necessary, purely volumetric analysis where possible, and operations recorded by a judicial officer. Firms that can produce this kind of protocol at the moment of seizure are in a materially stronger position than those that improvise a justification afterward. This is not a theoretical requirement: the Labour Chamber has produced the most operational breakdown of the underlying test, in a workplace-surveillance case — the court asks first whether the monitoring was legitimate, then whether the same result could not have been achieved by less intrusive means, and finally whether the infringement actually caused is proportionate to the aim pursued (Soc., 14 February 2024, no. 22-23.073). Transposed to trade secrecy, the same three-step grid applies, and building it into a firm’s evidence-response protocol before a raid happens is worth far more than any argument constructed after the fact.
5. The test has spread well beyond trade secrecy since 2025
Since 2025, the Commercial Chamber has applied the same indispensable-and-proportionate framework outside trade secrecy altogether: to a bailiff’s findings obtained in disputed circumstances (Com., 12 February 2025, no. 23-18.415), to a private investigator’s report gathered by posing under a false capacity (Com., 17 September 2025, no. 24-14.689), and to a technical analysis report covering employees’ personal data (Com., 17 June 2026, no. 25-11.499). What began as a trade-secret doctrine is becoming the general standard for any sensitive evidence produced in commercial litigation.
6. Getting it wrong carries its own liability, but the clock on that risk is short
Producing a document covered by trade secrecy without meeting these conditions exposes the producing party to a damages claim under Article L. 152-1 of the Commercial Code, and the regime includes a civil fine of up to 20% of the damages claimed, or €60,000 absent such a claim, for dilatory or abusive conduct (Article L. 152-8). But claims relating to an infringement of trade secrecy are themselves time-barred five years from the day the lawful holder knew, or ought to have known, of the last fact giving rise to it (Article L. 152-2) — a limitation period worth building into any long-running dispute strategy from the outset.
Trade secrecy has not retreated over the past three years. It has changed in nature, from an enforceable privilege into a treatment regime whose benefit has to be won through procedural steps, within short deadlines, under the supervision of a court that grants nothing to the principle and everything to the modalities. Our practical guide sets out the full framework — the escrow mechanism of Article R. 153-1, document sorting, and what to do in the first days after a raid.