Effect of s 1782(a) US Code on Australian & American Businesses
What impact does 1782(a) US Code have on?
1 American companies doing business in Australia involved in litigation in Australia.
2 Australian companies doing business in America involved in litigation in America.
s. 1782(a) US Code provides that a federal district court in the US ‘may order’ a person ‘residing’ or ‘found’ in the district to give testimony or produce documents ‘for use in a proceeding in a foreign or international tribunal … upon the application of any interested person.’
THE IMPACT OF S1782(a) US CODE ON AMERICAN COMPANIES DOING BUSINESS IN AUSTRALIA AND INVOLVED IN LITIGATION IN AUSTRALIA:
Section 1782(a) US Code authorises, but does not require, US district courts to provide discovery aid to a complainant in a foreign commission proceeding that leads to a hearing ( Intel Corp v Advanced Micro Devices Inc
). The statute specifically mentions ‘a foreign or international tribunal’ - this would include Australian courts, tribunals, or commissions.
Under this section, US businesses involved in litigation in Australia can request discovery of documents that would help their case if the documents were situated in America. Whether or not access to these documents will be granted is dependent on the discretion of the US district courts.
The proceeding for which discovery is sought under s 1782 US Code must be ‘within reasonable contemplation’, but it need not be pending or imminent. Judicial assistance would be available for both foreign proceedings and investigations
. So even in the investigative stage of their case in an Australian court, US businesses can order discovery of relevant documents from American district courts.
S 1782(a) US Code does not impose a foreign discoverability limitation. A foreign discoverable limitation is the requirement that discovery must be allowed under the foreign jurisdiction of the matter in order for it to be allowed by the US federal district courts. Documents requested by a US company for discovery in their Australian-court-based dispute may not be allowed under Australian discovery laws, 
but the US Company can seek American district court assistance to have access to these documents for discovery.
In making their decision of whether to grant US companies discovery of documents, US district courts may have regard to:
1 The nature of the foreign tribunal, the character of the proceedings underway, and the receptivity of the foreign body’s need for assistance. Interestingly in the judgment of the Intel
case, the Supreme Court ignored the European Commission’s assertions that they did not need the discovery of Intel documents.
2 Whether the request for discovery by one party is simply an attempt to circumvent foreign limits on discovery or other policies of a foreign country or the US
3 Whether the request is unduly burdensome and condition relief upon the reciprocal exchange of information.
4 The foreign tribunal can place conditions on its acceptance of information, thereby maintaining whatever measure of parity it deems appropriate.
While US district courts are making the decision as to whether to grant discovery upon these considerations, this may offer some safeguard for US businesses involved in litigation in Australia to protect their anti-trust interests and counter unfair competitive practices.
Nonetheless, some have argued that the Supreme Court’s broad construction of s. 1782 US Code may be detrimental to American businesses conducting business in Australia because:
a) Australian business regulatory bodies get thousands of complaints each year. If each of those complaints can be used to impose onerous discovery obligations in federal courts, companies would be overburdened with such requests.
b) This would also invite abuse by allowing companies to gain access to competitor’s sensitive business information or engage in ‘fishing expeditions’ for possible US litigation, by filing complaints in foreign countries and seeking related discovery in US federal courts.
i) The US Chamber of Commerce argues that the US Supreme Court decision in Intel
‘gives foreign companies an opportunity to seek super-sensitive information about policies and strategies of US competitors.’
ii) American companies that have overseas businesses can be investigated any time by agencies in multiple countries, but those agencies often have more limited rules for information gathering than what is allowed in US courts.
iii) Seth Waxman, attorney for Intel, argues that the US Supreme Court Intel
decision allows any company to get information from ‘its closest commercial rivals simply by asking a foreign enforcement agency to investigate them. It exposes [US] businesses to costly fishing expeditions of rivals.’
c) Section 1782(a) US Code, rather than helping regulate anti-trust and unfair competition practices, may in fact result in more suchlike behaviour.
d) The decision whether to grant or deny discovery to an ‘interested party’ for use in an Australian case is to be determined by the discretion of each individual US district judge. This may lead to inconsistent decisions in Australian cases, and undermine the cohesion, consistency, and fairness of our court/tribunal systems.
i) Breyer J (dissenting judge in Intel
): ‘Like American administrators, foreign administrators are likely to better understand than American courts their own job and how discovery rights might affect their ability to carry out their responsibilities.’
ii) e.g. the case of the European Commission being ruled against its will as a ‘tribunal’ by the US Supreme court for the purposes of implementing s 1782(a) has adverse consequences – as its ability to carry out its governmental responsibilities would be seriously threatened. ‘The Commission’s characterisation of its own functions should be entitled to deference’ – Breyer J.
THE IMPACT OF S1782(a) US CODE ON AUSTRALIAN COMPANIES DOING BUSINESS IN AMERICA AND INVOLVED IN LITIGATION IN AMERICA:
Section 1782(a) US Code only allows US assistance in foreign cases. It does not allow the US courts to demand discovery of documents situated in other countries from those countries.
However, the Supreme Court Intel
decision which renders domestic discovery assistance to foreign courts/tribunals aims to ‘encourage foreign countries by example to provide similar assistance to US courts.’
Hans Smit, Columbia Law School professor who helped draft the 1964 law said that ‘Congress was trying to guarantee US co-operation to foreign courts and agencies, in expectation for their co-operation in return.’
Therefore, the US hopes that its assistance in the discovery process to Australian courts/tribunals will be reciprocated by Australian authorities if the need should arise and Australian documents for discovery are sought by the US.
Nonetheless, Professor Smit said that US courts require parties to divulge more information during discovery than European bodies and courts.
So for Australian companies conducting businesses in the US, section 1782(a) US Code would be advantageous in a case or hearing, as the Australian company would have more access to discovery documentation than would otherwise be available in Australia.
NEED MORE INFORMATION
Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344
Discovery may not be allowed or beneficial in Australian courts or tribunals for a number of reasons, including:
- Unnecessary because the Australian tribunal/court/commission hearing does not want to create prolonged delay or unnecessary expense.
- The Australian tribunal/court/commission hearing may not want to resolve the dispute using adversarial tactics and may feel it would be better resolved more expeditiously.
- Discovery of certain documents can lead to results contrary to those that the Australian courts/tribunals desire
- Can promote disharmony among national and international authorities, rather than the harmony s 1782 seeks to achieve.