Lessons from Novalpina Capital Partners I GP S.A.R v Read
In certain circumstances, Australian businesses or individuals may find that they require or want to obtain evidence located in the United States of America for use in Australian legal proceedings.
U.S law provides a mechanism via 28 USC § 1782 which allows Australian parties to request documents or testimony from the U.S for use in foreign proceedings – including Australian legal proceedings.
However, utilising 28 USC § 1782 raises important legal considerations for Australian litigants.
This article broadly explores 28 USC § 1782 through the lens of both the U.S decision of Novalpina Capital Partners I GP S.A.R v Read, No 24-4835 (9th Cir, 12 August 2025) and the recent decision of Justice Stewart in Bluetag Australia Pty Ltd v BCC Trade Credit Pty Ltd t/as Bond and Credit Co (No 2) [2025] FCA 992, highlighting important considerations for Australians seeking evidence from US based parties for use in Australian legal proceedings.
What is 28 USC § 1782?
28 USC § 1782 allows federal district courts to order a person to ‘give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal’. The order can be made based on a request from an interested party.
The Novalpina Case
On 12 August 2025, the United States Court of Appeals for the Ninth Circuit delivered judgment in the matter of Novalpina Capital Partners I GP S.A.R v Read, No 24-4835 (9th Cir, 12 August 2025).
Novalpina Capital Partners I GP S.A.R (“Novalpina”) originally applied under § 1782 for discovery from Tobias Read (“Read”) and Michael Langdon (“Langdon”). The documents were required for Novalpina’s defence of ongoing legal proceedings in Luxembourg concerning the management of an investment fund and a potential claim against individuals involved with that fund.
Novalpina sought documents relating to Langdon and Read’s involvement with Treo Asset Management, LLC (“Treo”), Treo being a general partner of the investment fund.
Initial Court Decision
At first instance, the U.S. district court granted Novalpina’s application for discovery, finding that:
- the person from whom discovery was sought was in the jurisdiction;
- the discovery was for use in a proceeding in a foreign or international tribunal (including contemplated proceedings); and
- the application was made by an interested person.
The parties agreed on a protective order to manage how the documents to be produced could be used. Initially, the protective order limited use of the documents solely to the § 1782 petition itself, but the final wording agreed upon allowed use of the documents in any litigation related to the events described in the § 1782 petition - much broader than just the petition.
Dispute over Document Use
After producing some documents, Langdon and Read refused to comply further upon learning that Novalpina had shared the materials produced with other third-parties. The third-parties intended to rely upon the documents shared by Novalpina in separate litigation.
Novalpina asked the Court to compel Langdon and Read to comply by producing the balance of the relevant material. Langdon, Read and Treo opposed the application and requested that the court amend the wording of the protective order or reconsider the original decision.
The district court granted Novalpina’s application to compel compliance and dismissed the motion by Langdon, Read and Treo.
Treo’s appeal to the Ninth Circuit
Treo appealed to the Ninth Circuit.
The key question in the appeal was: Can documents produced “for use” in specific foreign proceedings under § 1782 be used in proceedings other than those identified in the § 1782 petition?’
The answer? Yes.
The Ninth Circuit affirmed the decision of the district court, finding against Treo.
The Ninth Circuit noted that there was nothing in the wording of the protective order which prevented Novalpina’s use of the discovered documents in other proceedings and that if § 1782 operated in such a way as to stop a party from using discovered documents in other proceedings, then protective orders would seem to be ‘entirely superfluous’.
In other words, protective orders are the main tool which limit or regulate documents produced pursuant to § 1782, not the legislation itself.
This was consistent with the approach that the US Supreme Court took in Intel Corp. v. Advanced Micro Devices, Inc. which held that a party may obtain evidence in the absence of current proceedings, so long as the intended proceedings were in reasonable contemplation.
What this means for Australian Litigants
Can Australian parties freely use § 1782 to get evidence from the U.S. for their cases?
Not Exactly
Australian courts have addressed this issue before.
Our previous article, which you can view here details how Australian litigants must consult Australian courts where proceedings are pending or on foot, before applying to U.S courts under § 1782. This helps avoid accusations of bypassing the court’s control over discovery and case management.
Failure to do so can result in anti-suit injunctions being brought later.
Recent Australian Case
Just days after the Novalpina decision, the Federal Court of Australia delivered judgment in Bluetag Australia Pty Ltd v BCC Trade Credit Pty Ltd t/as Bond and Credit Co (No 2) [2025] FCA 992.
Justice Stewart noted that in an increasingly connected world, § 1782 applications are becoming more common in Australian courts and that seeking permission first is now standard practice to avoid legal complications.
This approach ensures Australian courts maintain oversight of their own processes, especially around discovery.
Key Takeaway
Even though U.S. courts may allow broad use of documents obtained under § 1782, Australian litigants should proceed carefully. Always consult the Australian court first to avoid legal risks and ensure proper handling of evidence.
Need advice or considering obtaining evidence from the U.S?
At Burke Lawyers, we, together with our partners, work with clients in Australian, US and international commercial disputes.
For advice or more information, please contact Jack Ryan, Meghan Warren or Rosy Dean on jryan@burkelawyers.com.au, mwarren@burkelawyers.com.au, rdean@burkelawyers.com.au respectively, or by calling +61 3 9822 8588.
