By Michael Legg and Joshua Kang -
Snapshot
- Previously, Australian courts have restrained parties who had made applications in the United States to gather evidence for use in Australian proceedings pursuant to 28 USC § 1782.
- 28 USC § 1782 provides a US federal court with power to order a person to give testimony or a statement or to produce a document for use in overseas proceedings upon the application of any interested person.
- If the party seeking to utilise 28 USC § 1782 in Australian proceedings first seeks the Australian court’s approval, and the proposed application is limited to documentary evidence, an Australian court may approve the making of the application.
The United States Code contains the provision 28 USC § 1782, which is headed ‘Assistance to foreign and international tribunals and to litigants before such tribunals’. The United States Congress, responding to the refusal of many other countries to assist US civil litigation involving foreign defendants, adopted 28 USC § 1782 to induce greater cooperation.
The provision relevantly provides that a US federal court may order a person residing or found in that court’s district to give testimony or a statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, pursuant to a letter rogatory (also known as a letter of request) issued by a foreign or international tribunal or upon the application of any interested person.
To satisfy the threshold requirements of § 1782, an applicant must show:
- the person from whom discovery is sought ‘resides’ (or is found) in the district of the district court to which the application is made;
- the application is made by a foreign or international tribunal or ‘any interested person’;
- the discovery is ‘for use’ in a foreign or international proceeding; and
- the proceeding is before a foreign or international ‘tribunal’.
The procedure allows for testimony to be given orally (in a practice commonly known as a deposition) or in a statement, or for documents to be produced. The procedure may be invoked either through a letter of request procedure, which involves a foreign state, or by an interested person applying directly. An interested person includes any party to a foreign proceeding.
The US court will then consider whether it should exercise its discretion to make the order, which will include weighing:
- whether or not the person from whom discovery is sought is a participant in the foreign proceeding;
- the nature of the foreign tribunal and whether the foreign
tribunal would be receptive to US federal court judicial assistance; and - whether the document request is unduly intrusive or burdensome.
In relation to receptiveness, US courts have placed little weight on whether procedures equivalent to the US procedures are available to the foreign tribunal. However, US courts will consider a forum country’s judicial, executive or legislative declarations that specifically address the use of evidence gathered under foreign procedures.
A person may not be compelled to give his or her testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
