Presented by the Commercial and Business Litigation Committee

Co-Sponsored by the International Litigation Committee

United States Toll Free 866-646-6488 Conference code: 3129886228#

Standard International Dial-In 707.287.9583

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Rick Rein, Horwood Marcus & Berk Chartered

Stuart Riback, Wilk Auslander LLP Jorge Mestre, Rivero Mestre LLP

Gavin Foggo, Fox Williams LLP

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Litigation is not bound by borders or oceans, and multinational cross-border disputes are increasingly frequent and complex.

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This Roundtable will offer some practical tips for navigating the process of obtaining discovery abroad for cases litigated in the United States and for dealing with discovery issued from foreign venues. Specific topics to be covered include: ◦ The Hague Convention; ◦ The Inter-American Convention; ◦ 28 U.S. Code § 1782 - Assistance to foreign and

international tribunals and to litigants before such tribunals;

◦ Blocking Statutes; and ◦ Singular Issues in Foreign Discovery (Norwich Pharmacal

Orders, Mareva Injunctions, Anton Piller Orders, etc.)

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THE INTERNATIONAL CONVENTIONS

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Intended as a Permissive Substitute Allows judicial authorities of one signatory

country to obtain evidence in another signatory country

Provides detailed methods for foreign discovery of witnesses and documents as specified by Country

Not adopted by most tax havens

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Most countries limit scope of discovery Letters Rogatory is the main means of evidence ◦ Foreign country conducts evidentiary proceeding

In a US matter, party that seeks to apply Hague Convention Procedure bears the burden to persuade court of necessity of choosing that procedure over Federal Rules ◦ Factors are comity, interests of the party, and ease and

efficiency of alternative discovery

Similar to Hague Convention Only applies to civil and commercial cases Only applies to evidence taken by Letters

Rogatory Foreign country decides whether to honor

and execute letters of request

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28 USC § 1782

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(a) The district court of the district in which a person resides or is found may order him 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 may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal

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or upon the application of any interested person

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The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal

To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

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1. Foreign discoverability requirement?

2. Can non-parties seek § 1782

discovery? 3. Does § 1782 require that the

foreign proceeding be pending or imminent?

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1. District court where target resides or is found;

2. For use in a foreign or international

proceeding; 3. Application by tribunal or interested

person.

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1. Is the person to be subpoenaed before the

foreign tribunal?

2. Nature of foreign forum and proceeding; receptivity to US court’s help?

3. Is applicant circumventing forum’s discovery

restrictions or public policies? 4. District court’s power to prune requests or attach

conditions?

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“Is the applicant

being a wise guy?”

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BLOCKING STATUES

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Discovery in England & Wales:

Interlocutory relief

Evidence (Proceedings in Other Jurisdictions) Act 1975

Section 25, Civil Jurisdiction and Judgments Act 1982

Freezing injunctions (‘Mareva injunctions’)

Search and seize orders (‘Anton Piller orders’)

Innocent 3rd party orders (‘Norwich Pharmacal orders’)

Asset tracing orders (‘Bankers Trust orders’)

Procedure

Hague Convention

Documentary evidence : particular documents individually specified – no fishing!

Oral testimony by way of deposition

Both limited to issues relevant at trial

Available against parties to U.S. proceedings and third parties

1982 Act: specific power to grant interim relief in support of foreign courts and Arbitration anywhere in the world.

Rationale: ensure international judicial co-operation and provide the practical tools to facilitate justice.

Balancing act: providing assistance v hindering foreign proceedings.

The ‘expediency test’ : the 5 considerations

◦ Consider the position of each party separately

◦ EU: ‘real connecting link’

4 principal forms of relief sought:

1. Freezing injunction (‘Mareva injunction’)

2. Search and seize order (‘Anton Piller order’)

3. Innocent 3rd party order (‘Norwich Pharmacal

order’)

4. Asset tracing order (‘Bankers Trust order’)

S.37, Senior Courts Act 1981 and CPR 25.1(f).

Rationale: C suspects D will try to frustrate any court judgment by dissipating his assets in the interim; C wishes to freeze (a proportion of) the assets between now and trial to prevent it.

The Mareva [1975] 2 Lloyd's Rep. 509

UK domestic or worldwide.

Order requires disclosure of D’s assets – powerful tool.

Possible against third-parties if assets are, in reality, owned by D

The test: 1. A good arguable case against D;

2. Real risk of D dissipating its assets other than in the ordinary course of business;

3. D has assets within the jurisdiction or, if no assets in jurisdiction, UK court has in personum jurisdiction because of domicile or residence;

4. Just and convenient in all the circumstances to freeze D’s assets (or at least a proportion of them).

S.7, Civil Procedure Act 1997 and CPR 25.1(h).

Rationale: C suspects D will try to destroy evidence or devalue/destroy property; C wishes to enter, search for and seize any relevant material for preservation purposes.

Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 - also called ‘search and seizure order’.

Not method of obtaining (distinct from preserving) evidence nor way of ensuring full disclosure.

Courts are reluctant - without notice, expensive and draconian .

Compromise : ‘Doorstep Piller’ – hand over but not permitted entry.

The test: 1. An extremely strong prima facie case;

2. D’s actions have resulted in very serious potential or actual damage to C’s interests;

3. Clear evidence that the material is in D’s possession;

4. Real possibility that D may destroy or dispose of it before an application can be made on notice;

5. Harm caused to D or his business interests not disproportionate to the legitimate object of order.

Supervising solicitor.

I.T. forensic expertise.

Female present?

Multiple sites?

Timing : D present.

Review of material.

Rationale: C wishes to compel a 3rd party to impart with specific information and documents, often in order that C can identify against whom to act.

Usually (but not always) 3rd party will be innocent party caught up in D’s action.

Norwich Pharmacal Co. v Customs & Excise Commissioners [1973] UKHL 6

Available for any type of action, including action in foreign jurisdictions.

Pre-action, during proceedings or after judgment.

Usually need for a commitment to litigation.

The test: 1. R is involved in the wrongdoing;

2. R is not a ‘mere witness’;

3. No other CPR provisions (e.g. CPR 31.17) available;

4. R likely to have the specified information/documents;

5. Good arguable case that there has been wrongdoing;

6. Order necessary in the interests of justice.

Rationale: C wishes to trace monies connected with potential fraud claim against D but needs more information, such as the whereabouts of the monies and/or D’s financial state and dealings.

Usually against a bank or building society.

Bankers Trust Limited v Shapira [1980] 1 WLR 1274

Distinguish from Norwich Pharmacal.

Only available in cases involving D’s alleged fraud.

The test: 1. Strong prima facie case of fraud;

2. If fraud were to be made out, the relevant funds would belong to C;

3. Relevant funds have passed through or are held by 3rd party;

4. Real prospect that the disclosure might lead to the location or preservation of assets to which C makes a proprietary claim.

Substantial written evidence : witness statements/affidavit and documents.

Oral hearing.

Ex parte and on notice hearings.

Duty of full and frank disclosure.

Cross-undertaking in damages, and security to support it.

Act quickly.

Penal notice on court order.

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THANK YOU