International evidence gathering - §1782 application found not to be “unconscionable”

27 February 2023

Obtaining evidence from an overseas jurisdiction should be a consideration of all litigants engaged in disputes with an international angle. If relevant material is held in the US, a party might seek the assistance of the US courts under 28 US Code §1782, which allows US courts to help an applicant gather evidence in support of proceedings before a court or tribunal outside the US. In Soriano v Forensic News LLC and ors (2023) EWHC 262 (KB), the respondent to a §1782 application unsuccessfully tried to persuade the English court to grant an anti-suit injunction to restrain that §1782 application.

In the underlying proceedings, Mr Soriano brought claims against Forensic News and others for libel in relation to a series of publications. Forensic News made its §1782 application seeking documents from a bank in the US that it considered would be relevant to its defence in the libel claim. Mr Soriano filed a motion in the US to try to stop the §1782 application and brought this application for an anti-suit injunction in England seeking the same effect. The English application was based on the argument that the US proceedings initiated by the §1782 application would be unconscionable if allowed to proceed.

In England, in principle an anti-suit injunction is available if the §1782 application would represent unconscionable conduct by the party applying for it. This must be viewed distinctly from general objections as to whether or not the scope of §1782 application is appropriate. In this context, unconscionable means “conduct which is oppressive or vexatious or which interferes with the due process of the court” (South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NV (1987) 1 AC 24 (HL)). This is a question of fact and so will depend on the details of the case at hand.

An example of a situation meeting that test was found in Omega Group Holdings Ltd v Kozeny (2001) 9 WLUK 45, where allowing a §1782 application for witness deposition would have been unconscionable because the witnesses were also being called in the English trial. The witnesses would therefore be subjected to cross-examination twice on the same material. Furthermore, they might be discouraged from giving evidence in the English trial by their experiences of US deposition, which would amount to interference with the English trial.

In Soriano, the court found no unconscionability and refused to grant the anti-suit injunction. Mr Soriano had argued that the §1782 application amounted to a “fishing expedition” and sought documents that would not currently be available under the English disclosure regime. He further argued that the scope of disclosure in England would be determined at the Case Management Conference and so the §1782 application was premature. These arguments were rejected and the court found that neither individually, or in any combination, was the §1782 application oppressive, vexatious, or otherwise unconscionable.

The criticisms of the timing and breadth of the §1782 application, and that the documents might be available in England at a later stage were not reasons to stop the §1782 application on unconscionability grounds. 

Whether a disclosure application is a “fishing expedition” will be fact specific and the US courts are careful to ensure that §1782 applications are not unduly intrusive or burdensome. However, this is a matter for the US courts to consider and parties to international disputes in the England should be reassured that the English courts will not prevent parties exercising their rights to gather evidence on unconscionability grounds without good reason. As Mr Justice Murray stated in this case “As a matter of comity, (the US court) can and should be trusted to deal with issues of substantive and procedural fairness that may be raised by any application for its assistance”.

Whilst the curtailing of §1782 insofar as it relates to arbitration proceedings has been well-publicised (see our previous post), it remains a valuable tool which can be deployed in support of Court proceedings.