Microtechnologies, Llc v Autonomy, Inc (aka HP Autonomy)

The court may give effect to a foreign letter of request where the statutory jurisdictional conditions are met and the evidence is sought for instituted or contemplated civil proceedings. Comity means that the English court will generally defer to the requesting court on relevance. The court must nevertheless balance the foreign court’s legitimate requirements against the burden imposed on the witness. An examination may be oppressive where fraud allegations against the witness have not been sufficiently particularised, the evidence may be used in related proceedings, and the witness is required to give evidence substantially earlier than other participants. The possibility that the witness may invoke privilege against self-incrimination does not ordinarily make an examination pointless, but it does not cure oppression arising from the wider circumstances.

MicroTechnologies, LLC brought proceedings in the United States District Court for the Northern District of California concerning two transactions involving Autonomy software. The Autonomy parties counterclaimed against MicroTech, alleging that it had assisted breaches of fiduciary duty by Dr Lynch and Mr Hussein. The US court issued a letter of request seeking Mr Hussein’s examination in England.

Mr Hussein opposed the application. He relied on oppression, the prospect of invoking his Fifth Amendment privilege, and his right to a fair trial under article 6(1) of the ECHR. The application required the court to decide whether effect should be given to the request and, if so, what directions should govern the examination.

1. Jurisdiction and discretion. Under the Evidence (Proceedings in Other Jurisdictions) Act 1975 and section II of CPR Part 34, the court first considers jurisdiction and then whether, in its discretion, an order should be made. The requirements in section 1(a) and (b) and the limitation in section 2(3) were satisfied. The evidence was sought for the US trial, not pre-trial discovery.
2. Comity and relevance. Following Rio Tinto Zinc Corporation v Westinghouse Electric Corp [1978] AC 547, and First American Corp v Al Nahyan [1999] 1 WLR 1154, the English court should generally assist a foreign court and defer to its assessment of relevance. That principle does not remove the duty to protect a witness from an oppressive request.
3. Oppression. The request covered nine transactions, but the related Chancery proceedings gave particulars concerning only one of them and did not adequately particularise Mr Hussein’s alleged involvement in the others. Applying the reasoning in First American Corp v Al Nahyan, it was oppressive to examine him on those matters while allegations of fraud remained insufficiently particularised. The court also considered the absence of undertakings restricting use of the transcript and the substantial procedural advantage obtained before disclosure and witness statements.
4. Privilege. The possibility that Mr Hussein would invoke the Fifth Amendment did not establish that the examination would be entirely pointless. The court adopted the approach in USA v Philip Morris Inc [2003] EWHC 3028 (Comm) and USA v Philip Morris Inc [2004] EWCA Civ 330; [2004] 1 CLC 811. Privilege would depend on the questions asked, and refusing an examination on the assumption of a blanket assertion required a clear case.
5. Article 6. Requiring Mr Hussein to give evidence materially earlier than other parties and witnesses, before disclosure and exchange of witness statements, would place him at an unfair procedural disadvantage. The proposed examination therefore breached article 6(1) of the ECHR. The application to give effect to the letter of request was refused.