A party to a legal proceeding outside the United States is now entitled to apply to a US court for the purpose of obtaining evidence to be used in that non-US proceeding. This encompasses both arbitration and court proceedings. Until recently, Australian courts had denied disputing parties this access.
So, what happens if a party has approval of an Australian court before making an application in the US for obtaining such evidence?
Approval for obtaining evidence
Australian courts may allow evidence procurement from a non-Australian court provided that application is only for documentary evidence. For the first time, an Australian court has recently allowed such an application for the production of documents relevant to the Australian proceeding from two United States entities and a French entity.
Why the approval is important
Seeking approval of the Australian court or tribunal of the proceeding before making an application to a US district court is mandatory. In circumstances where this approval has not been provided, anti-suit injunctions have been issued against parties making applications in the US without this. 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 compromised.
Conditions for approval
It has been held that 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 (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.
Should you have any questions relating to this information or require assistance, please do not hesitate to contact Meghan Warren of Burke & Associates Lawyers today. Meghan is admitted to practice law in both Australia and the United States.