Obtaining Evidence by Employees: What Defenses Are Available to Employers?

In labor disputes, access to evidence has become a central issue, particularly when an employee’s claims relate to acts of discrimination, harassment, and irregularities in the performance or termination of the employment contract. The decisive elements are most often in the employer’s possession, resulting in an increasing reliance on mechanisms for obtaining evidence before or during the trial.

Two avenues now lie at the heart of this strategy: Article 145 of the French Code of Civil Procedure, which allows the judge to order pretrial investigative measures (mesures d’instruction préventives), and the right of access under Article 15 of the General Data Protection Regulation (GDPR), which is increasingly used as an evidentiary tool.

This dynamic requires employers to balance several imperatives: the employee’s right to evidence, the protection of third parties’ privacy, trade secret, and the security of their internal data, while also managing litigation risk.

OBTAINING EVIDENCE IN SUMMARY PROCEEDINGS OR NONADVERSARIAL SUMMARY PROCEEDINGS

Overview of the Concepts

Summary proceedings and nonadversarial summary proceedings (similar to ex parte proceedings in common law) are types of proceedings used to rule on provisional requests (instead of on the merits). Unlike summary proceedings, nonadversarial summary proceedings enable the applicant to take the opposing party by surprise, provided that the reason for deviating from the adversarial process is justified.

Evidentiary summary proceedings, whether adversarial (référé probatoire) or nonadversarial (requête probatoire), as set out in Article 145 of the French Code of Civil Procedure, allow an employee to request a court-ordered investigative measure against their employer in order to preserve evidence on which the outcome of a potential future dispute may depend, thereby preventing that evidence from disappearing (i.e., being lost or destroyed, whether intentionally or inadvertently).

Conditions

An employee’s evidentiary claim is subject to three requirements:[1]

• The employee must demonstrate that there is a legitimate reason;
• The investigative measure must be sought prior to any trial on the merits; and
• The investigative measure requested must be legally admissible.[2]

  It should be noted that claims under Article 145 of the French Code of Civil Procedure are available to employees, though the French Labor Code also provides specific evidentiary rules, for example, in relation to overtime[3] and discrimination[4] claims.

  The judge has sovereign discretion to determine whether a legitimate reason has been established. For example, a court of appeal dismissed a former employee’s request for the production of documents and internal data because he neither challenged his dismissal nor raised any complaint against the employer; accordingly, he failed to establish a legitimate reason, having “no intention of initiating legal proceedings.”[5]

  Generally, where the prospective claim on the merits following the evidentiary summary proceedings is manifestly devoid of any reasonable prospect of success, the judge will consider that to be the “legitimate reason” the requirement is not satisfied.[6] The judge will order the production of documents only if their existence, while not established with certainty, is at least plausible.[7]

  Possible Objections by Employers

  In labor disputes, employees most frequently file for evidentiary summary proceedings in the context of discrimination between employees. In such cases, the judge balances the employee’s right to obtain evidence against other employees’ rights of privacy.

  Relying on several legal provisions,[8] the Labor Chamber of the French High Court (Cour de Cassation) held that “the law of evidence may justify the production of evidence that interferes with an individual’s private life, provided that such production is indispensable to the exercise of that right and that the infringement is proportionate to the aim pursued.”

  Accordingly, when a judge is presented with a request for the production of evidence that is liable to interfere with the private lives of other employees (e.g., pay slips necessary to prove an alleged discrimination), the judge must:

• Determine whether the requested production of evidence is necessary to exercise the right to prove the alleged discrimination and is proportionate to the legitimate aim pursued,
• Ensure that there is a legitimate reason to preserve or establish the evidence before initiating proceedings on the merits; and
• Identify the investigative measures that are both indispensable to exercise the right to evidence and proportionate to the aim pursued, and where necessary, limit the scope of the production of evidence.[9]

  An employer seeking to challenge an investigative measure may argue that these requirements were not satisfied in order to set aside or, at minimum, limit the measure’s scope.

• In a case where the production of several employees’ pay slips was ordered to prove compensation-related discrimination, the judge limited the measure to pay slips issued during a specified period and required the redaction of certain personal information (e.g., first and last names, addresses, Social Security numbers, withholding tax rates, bank account information, any wage garnishments, medical leaves, and absences).[10]
• In another example, the judge conducted a rigorous review and held that it was “indispensable and proportionate” to order production only of the employees’ first and last names, pay slips, employment-history data, and current gross and net wages to establish proof of the alleged discrimination; the judge expressly excluded performance evaluations from the scope of the measure, finding that they “are not essential prior to any litigation” since the documents already ordered were sufficient to safeguard the employee’s right to obtain evidence.[11]

The French High Court has repeatedly confirmed that trade secret does not in and of itself bar an employee from filing for evidentiary summary proceedings; it is sufficient that the requested investigative measures are based on a legitimate reason and are necessary to protect the employee’s rights.[12] Nevertheless, trade secret may justify limiting the scope of the measures to ensure that they do not disproportionately infringe the employer’s rights in light of the aim pursued.[13]

The court may order the production of documents where, for instance, the measure is limited to a relevant period and the documents are redacted to exclude certain information deemed “not indispensable to the right to evidence,” such as an employee’s address, medical leaves, wage garnishments, and withholding tax rate.[14]

The procedural requirements inherent in proceedings under Article 145 of the French Code of Civil Procedure (including, in particular, the need to establish a legitimate reason, debates over proportionality, and uncertainties surrounding enforcement) often lead employees to seek alternative means of accessing evidence. Among these, the right of access under the GDPR now plays a central role.

OBTAINING EVIDENCE UNDER THE GDPR

Beyond the framework of Article 145 of the French Code of Civil Procedure, some employees now rely on data protection law to obtain evidence that may be useful in future litigation. In this regard, the right of access under Article 15 of the GDPR has emerged as a particularly effective tool in labor dispute.

The appeal of this mechanism stems from its inherent characteristics. Unlike proceedings under Article 145 of the French Code of Civil Procedure, exercising the right of access is not contingent on demonstrating a legitimate reason, establishing a risk that evidence may disappear (in nonadversarial proceedings), or obtaining prior court authorization.

An employee may directly contact their employer, who acts as data controller, to request disclosure of the employee’s personal data, without having to frame the request, at that stage, within the context of pending judicial proceedings.

In practice, requests made on this basis often seek information contained in the individual human resources (HR) file, data relating to the monitoring of the employee’s professional activity (e.g., objectives, evaluations, performance indicators, activity logs), and, increasingly, work-related emails.

The position of the French National Commission on Informatics and Liberty (CNIL) has contributed to broadening the scope of requests for work-related emails, recognizing that employees may obtain access to work-related emails that they have sent or received, or in which they are merely mentioned.[15] This approach has contributed to the proliferation of particularly wide-ranging access requests, sometimes pursued in parallel with either pending or future labor dispute proceedings.

Some labor courts initially appeared to endorse this trend, with several judgment offices of the Labor Court (conseil de prud’homme) ordering employers to provide employees with their complete HR files as well as collections of work-related emails that have been sent or received over several years, sometimes subject to a penalty payment.

This trend has recently received added support from the Labor Chamber of the French High Court. In a ruling dated June 18, 2025,[16] the court held that work-related emails sent or received by an employee through their work email account constitute personal data to which the employee is entitled to access under Article 15 of the GDPR. This decision has been viewed as confirming that the right of access may be used to obtain useful evidence for labor dispute proceedings.

The right of access, however, was not designed as a parallel evidentiary mechanism or a substitute for judicial investigative measures. Its primary purpose is to enable the data subject to understand how their data is processed and to verify the lawfulness of that processing. Courts are now beginning to impose strict limits on the use of the right of access where it appears to be invoked to gather evidence rather than protect personal data.

First Limits on Using the Right of Access for Litigation Purposes

In a noteworthy ruling dated March 19, 2026,[17] the Court of Justice of the European Union (CJEU) held for the first time that a request for access to personal data may be denied where it is abusive within the meaning of Article 12(5) of the GDPR.

The court further clarified that a single request may in and of itself be deemed “excessive” where the data controller establishes, on the basis of a body of consistent evidence, that the data subject is seeking not to verify the lawfulness of the processing of their personal data but instead to artificially create the conditions for a judicial claim for damages.

While the case concerned the use of the right of access as a vehicle for pursuing compensatory relief, the court reasoning may provide meaningful support for employers who are facing access requests made primarily for evidentiary purposes. The CJEU reiterated that the right of access is not absolute and may not be exercised abusively.

Available Defenses for Employers

Employers can rely on several lines of defense.

First, employers are not required to disclose information where doing so would disproportionately infringe the rights and freedoms of third parties. However, employers must prioritize measures that are capable of reconciling the competing interests at stake, including, in particular, the anonymization or redaction of sensitive information.

Only where such measures prove insufficient may that access to personal data be restricted or refused. This approach is consistent with the framework described above for measures ordered under Article 145 of the French Code of Civil Procedure.

Employers may now seek to establish that a request is manifestly excessive or abusive where objective evidence demonstrates that it is being pursued for a purpose unrelated to the protection of personal data.

This development forms part of a broader policy debate at the European level. The draft Digital Omnibus regulation currently under discussion would, in particular, amend Article 12 of the GDPR, making it easier to refuse excessive access requests or requests that are submitted for purposes unrelated to the protection of personal data and easing the burden of proof borne by data controllers.

While the GDPR remains a particularly effective tool for employees who are seeking to obtain evidence, recent case law and legislative developments reflect a growing desire to refocus the right of access on its primary purpose: enabling the data subject to verify the lawfulness of the processing of their personal data rather than circumventing the conditions applicable to judicial evidentiary measures.

Law clerks Lizy Kim and Cassiopée Gihr contributed to this LawFlash.