Business secrecy and the right to evidence: what balance?

Business secrecy takes precedence over the right to evidence if it is not essential. The Paris Court of Appeal, in a case between Domino’s Pizza and Speed Rabbit Pizza, strictly applies the proportionality test, sanctioning the production of a confidential document deemed not essential to the defense.

Summary of the facts and the procedure:

This decision is part of a long-standing dispute between two to-go pizza giants, illustrating the tensions between the protection of strategic information and the need for evidence in competition.

An accusation of unfair competition within a network

At the origin of the dispute, the company Agora, a former franchisee of the Speed Rabbit Pizza (SRP) network, sued Domino’s Pizza France (DPF) in 2012 for acts of unfair competition.

The production of a contentious piece: the “OER Guide”

To support its accusations, the company Agora, joined by its former franchisor SRP, produced in court an internal document at Domino’s Pizza: the “Guide OER 2018”.

After several decisions and two appeals, the Court of Cassation, in a judgment of 5 June 2024, remitted the case to the Paris Court of Appeal. The central question put to the referring court was to determine whether the production of this document was essential to prove the facts of unfair competition and whether the breach of trade secrecy was strictly proportionate to this objective.

The translation of a major jurisprudential evolution

This judgment is a perfect illustration of the recent and significant evolution of case law on the admissibility of evidence obtained unlawfully or unfairly.

Before 2023: Fairness of evidence as a cardinal principle

Traditionally, in civil and commercial matters, the Court of Cassation laid down a strict principle: evidence obtained unfairly was inadmissible. Unlike in criminal matters where the evidence is free, the civil trial was governed by an imperative of loyalty. Any evidence obtained unfairly, that is to say as a result of a manoeuvre, a ruse or in violation of a right (respect for private life, secrecy of correspondence, etc.) was systematically deemed inadmissible and therefore excluded from the proceedings, without the judge having to assess its relevance or necessity. However, case law distinguished unfair evidence, considered inadmissible, from unlawful evidence, which could be declared admissible when this evidence is essential to the success of the claimant and the infringement of the antinomic rights in question is strictly proportionate to the aim pursued.

The turnaround of the Plenary Assembly of 22 December 2023

In a highly anticipated landmark judgment of 22 December 2023, the Plenary Assembly of the Court of Cassation (Cass. com., 22 Dec. 2023, No.20-20.648) made a major reversal by aligning itself with the case law of the European Court of Human Rights. It held that, even in civil matters, evidence obtained both unlawfully and unfairly, the two hypotheses also being difficult to distinguish, is no longer automatically inadmissible.

From now on, the judge must balance the interests involved:

1. It must be essential for the exercise of the right to evidence;
2. The infringement of the opposing right must be strictly proportionate to the aim pursued.

The rigorous application of the proportionality check now required

The Paris Court of Appeal, in its judgment of 8 October 2025, carried out a meticulous analysis in two stages, applying the principles recently enshrined in the case law of the Court of Cassation.

Confirmation of the trade secret qualification

The court first confirms that the “OER Guide” is well protected by business secrecy. To this end, it verifies the three cumulative criteria of Article L. 151-1 of the French Commercial Code:

1. The information is not generally known or easily accessible: The guide contains very precise indications on the standards specific to Domino’s Pizza, constituting a “distinctive and secret know-how”;
2. Information has commercial value: Due to its secrecy, this guide, which aims to improve the profitability of points of sale, has actual or potential commercial value;
3. The information is subject to reasonable protective measures: The guide stated on each page that it was “strictly confidential” and prohibited any communication, which the court considered to be a sufficient protective measure.

The classification of trade secret having been established, the court concluded that its acquisition and production by a competitor, without the consent of its holder, were unlawful.

The proportionality test: proof that is neither indispensable nor proportionate

This is the heart of the Zone. The court balances the right to the protection of business secrecy against the right to evidence.

• On the indispensable nature of the evidence: The court finds that the production of the guide was not not essential to the exercise of the right to evidence of SRP and Agora, in particular because the dispute concerned the granting of payment deadlines in violation of the relevant legal provisions, whereas the guide did not address this issue;
• On the proportionality of the breach: The court considers that the breach of secrecy of Domino’s Pizza’s business was not strictly proportionate to the aim pursued:
  • The link between the exhibit and the alleged facts is “very tenuous”;
  • Only two paragraphs of a 23-page document were cited as useful, but the document was produced in its entirety;
  • Numerous other non-confidential documents had already been produced to prove the same facts.

Consequently, the court dismisses the exception to the exercise of the right to evidence and confirms the violation of business secrecy. It orders in solidum SRP and Agora to pay 30,000 euros to DPF in compensation for its non-pecuniary damage, in the absence of the latter being able to quantify commercial damage.

Domino’s Pizza: A Concrete Illustration of the New Paradigm

The judgment of 8 October 2025 is one of the first notable applications of this new trade secrecy proportionality check. It demonstrates that while the door is now open to the production of illicit or unfair evidence, the conditions remain extremely strict.

The Court of Appeal does not simply find the usefulness of the evidence; it verifies its “indispensable” nature. By noting that the plaintiffs had evidentiary alternatives, it closes the door to the eligibility of the “OER Guide”.

For distribution and network law practitioners, this decision is a strong signal: the protection of trade secrets, enshrined in 2018 in the Commercial Code, remains robust. A competitor or former partner can only take confidential documents and expect to use them in court if this evidence is the only way to assert their rights, which, in practice, will rarely be the case. The judgment confirms that the right to evidence is not a blank check to justify the violation of business secrecy.