Both judges and lawyers are generally limited to their legal knowledge. However, handling a case regularly requires the involvement of third-party experts in their fields. Judges tend to rely more on expert assessments than on personal verifications or consultations. This indeed strengthens the objectivity and credibility of their decisions. Expertise is ordered when the provided documents and evidence are insufficient to clarify the matter for the court.

However, the involvement of experts can delay case processing. The European Convention on Human Rights stipulates that cases must be heard by the courts within a reasonable time frame, without undue delay, which would compromise their efficiency and credibility. States have been condemned for failing to ensure a reasonable time for handling cases.

The decision to resort to investigative measures falls under the judge’s discretion, and they can freely refuse it. The power to order such a measure is limited by its purpose, proportionality, and subsidiarity. The application of the proportionality principle to investigative measures is longstanding. These measures must be time-limited, focused on a specific subject, and proportionate to the objective pursued.

Judges must therefore verify whether the ordered measure is necessary for the claimant’s right to evidence and proportionate to the conflicting interests involved. Business confidentiality is not, in itself, an obstacle to the application of Article 145 of the Code of Civil Procedure, provided that the judge establishes that the ordered measures are based on a legitimate reason, necessary to protect the rights of the requesting party, and do not disproportionately affect the rights of the opposing party in relation to the goal pursued. For example, an investigative measure is not proportionate if it is insufficiently defined in time and scope, relying on keywords targeting only generic terms, first names, surnames, and the names of persons against whom the measures were requested.

The judge does not need to be approached by the parties to order an investigative measure. They can do so ex officio.

The judge has the ability to reject requests unrelated to the dispute, as investigative measures can only be ordered within the limits set by the parties themselves.

Expert assessments should not compensate for a party’s failure in gathering evidence. The parties are required to actively participate in the trial by cooperating with the measures ordered by the judge. The Court of Cassation requires that lower courts establish why a request for an investigative measure aims to make up for a deficiency in the presentation of evidence.

Article 233 of the Code of Civil Procedure states that the expert entrusted by the judge must personally carry out the assigned mission.

Specific rules have been enacted for filiation cases. Genetic expertise is mandatory in matters of affiliation unless there is a legitimate reason not to proceed. This applies when the goal is to establish or challenge a filiation link or to obtain or terminate financial support.

The lack of necessity for expert assessments constitutes a legitimate reason not to order them.

For example, the Court of Cassation has ruled that genetic expertise is not mandatory, even in matters of filiation, when its purpose is to establish French nationality. The Court also rejected an expert request, noting it was an action to rectify civil status rather than a status action. Since evidence can be established by any means, biological expertise is not mandatory. Article 145 of the Code of Civil Procedure does not require judges to characterize the legitimate reason for the investigative measure in relation to the various legal grounds of the action the party intends to take. Nonetheless, investigative measures require the establishment of facts that make the claim plausible, and the measure must be useful to the case.

To assess the existence of a legitimate reason to preserve or establish proof of facts on which the outcome of the case may depend, it is not the responsibility of the emergency jurisdiction to decide on the merits of the action that the party may later file. The existence of a potential dispute and a probative interest in the requested emergency measure to clarify the party on a possible future dispute constitutes a legitimate reason. This legitimate reason rests on three principles:

– the necessity of a sufficient link between the requested measure and the future trial,

– a probative interest in the prescribed measure, and

– whether the measure prevents harm to the legitimate interests of the opposing party.

The measure is limited to those legally admissible. Therefore, irregular or inadmissible modes of proof, as well as unjustified or disproportionate measures, should be excluded. However, measures limited to ascertaining facts circumscribed by the court order, without infringing on fundamental freedoms, may be ordered.

Jurisprudence seems to admit that infringements on personal rights, including respect for the employee’s private life, home, or business secrets, are justified when the judge finds that the ordered measures are based on a legitimate reason and are necessary to protect the rights of the requesting party. In adversarial proceedings, the risk associated with producing documents is limited, as the concerned party can refuse to disclose the document, and the expert will refer the matter to the judge for resolution.

Filing an emergency request for an investigative measure interrupts the statute of limitations for the underlying action for which the measure is requested. This only applies if the request is directed against the party sought to be prevented from raising the statute of limitations.

A judge handling an expert request can only order such a measure within the jurisdictional limits of their court. For instance, a judge in a court without jurisdiction over anticompetitive practices and restrictive practices cannot order any investigative measure.

It is possible to bring the matter before the court ex parte to request an investigative measure. In such cases, the judge must ensure the existence of circumstances justifying the absence of adversarial proceedings and must explain the reasons for proceeding without them in the judgment.

Expert assessments can be independently appealed, separate from the substantive judgment, upon authorization from the presiding judge of the court of appeal, if there is a grave and legitimate reason. The appeal must be filed within one month. A decision ordering a medical expert assessment in social security matters can be immediately appealed, as such an assessment has a significant impact on the substantive rights at stake.

The expert must invite the parties to make observations and must consider them. Consequently, the expert report and the preliminary report must be entered into the debate and subjected to adversarial discussion by the parties. Failing this, the judge will exclude the expert’s conclusions.

Expert assessments are regularly used in real estate matters, particularly to identify irregularities or damages. The firm regularly appoints medical experts to determine the extent of harm following an accident, assault, or work-related incident.

For any questions regarding expertise, the firm remains at your disposal.