A party to an Australian arbitration or court proceeding can apply to a US court for the purpose of obtaining evidence located in the US to be used in that Australian (non-US) proceeding.
Australian court approval for obtaining evidence
Australian courts may allow evidence procurement from a non-Australian court provided that the application is only for documentary evidence. In 2017, for the first time, an Australian court allowed such an application for the production of documents relevant to the Australian proceeding from two US entities and a French entity in the case of Lavecky v Visa Inc [2017] FCA 454.
Why the approval is important
Seeking approval of the Australian court or tribunal hearing the proceeding before making an application to a US district court for access to documents is mandatory. In circumstances where this approval has not been obtained, anti-suit injunctions have been issued against parties making such document access applications in the US. When such applications in the US are made without obtaining prior consent of the foreign court or tribunal, that court or tribunal's supervisory and case management functions are likely to be compromised.
Conditions for approval
Australian courts may take into consideration the following factors when considering whether to approve the endorsement of an application made under Section 1782 of the United States Code for access to US located documents (and in similar applications for discovery):
- Importance of the evidence sought in deciding the case;
- Whether alternative methods are available to procure the evidence;
- Whether the sought-after material negatively impacts any procedural limitations in Australia, for example, the unwillingness of the court to permit fishing expeditions;
- Costs involved in making a Section 1782 application;
- Whether incurring such costs is proportional to the materials' importance;
- Whether the proceeding is ill-considered;
- Length of time it will take to procure the material and what impact that might have upon deciding the matter before the Australian court or tribunal; and
- Whether any conditions should be imposed upon the proposed Section 1782 application.
Meghan Warren of Burke Lawyers is a legal practitioner admitted in both Australia and the US (New York State Bar). Contact our office today on +61 3 9822 8588 or supportteam@burkelawyers.com.au.
