Rejection of the production of a confidential letter between lawyers

Facts

The present case opposes X. SA to Z. SA in the context of an appeal in civil matters. The cantonal court refused to take into consideration a letter dated April 30, 2010 addressed by the counsel of Z. SA to the counsel of X. SA, on the grounds that this letter, although redacted, contained confidential settlement proposals and therefore constituted an unlawful means of evidence within the meaning of Art. 152 para. 2 CPC.

X. SA appealed against this decision, arguing that the unredacted part of the letter contained only a unilateral and unconditional waiver of the statute of limitations, without any link to the other settlement proposals, and that this waiver could therefore not be considered confidential.

Considerations

The Federal Tribunal dismissed the appeal. It considered that, even redacted, the letter of April 30, 2010 could not be produced in court, as it clearly contained confidential settlement proposals, protected by Art. 12 let. a LLCA.

Indeed, the respondent's declaration regarding the waiver of the statute of limitations could not be interpreted as a unilateral and unconditional waiver, but had to be considered as an offer inserted among the other redacted settlement…