Seeking US Orders For The Provision Of Evidence For Foreign Proceedings: The Omega Case

Author:Mr Stephen Flaherty
Profession:Herbert Smith

Parties to English proceedings which have a US element, in terms of parties or potential witnesses, will often consider whether they can avail themselves of the provisions of Section 1782 of Title 28 of the United States Code. Section 1782 entitles parties to foreign proceedings to apply to the US Court for an order against a person in the United States requiring that person to provide testimony or documentary evidence for the purposes of the foreign proceedings.

The judgment in the case of Omega Group Holdings Ltd & Ors v. Kozeny & Ors (Unreported, 6 September 2001) demonstrates that parties to English litigation should be careful of the use they make of any rights they may have to obtain evidence in foreign jurisdictions. In the Omega case, the first defendant faced a damages claim for fraudulent misrepresentation, breach of fiduciary duty, breach of contract and conspiracy arising out of the claimants' investment in the privatisation process in Azerbaijan. He sought orders from the US District Court pursuant to Section 1782 requiring employees and former employees of the claimants and related parties to be deposed. The claimants applied to the English Court for an injunction to prevent the first defendant from pursuing the Section 1782 process to depose witnesses who would be called to give evidence in the English proceedings.

Mr P Gross QC (sitting as a Deputy High Court Judge) held that, in general, the English Court would leave it to the parties to decide how they obtained evidence and the extent to which they utilised procedures in foreign Courts. The fact that a party to English proceedings could obtain evidence through a foreign Court by reason of a right significantly different from that available in the English system, did not of itself constitute unconscionable conduct...

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