Galas v Alere Inc & Anor

Under section 2(4)(b) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, an order for documents must identify particular existing or likely documents. A broad request resembling disclosure is impermissible, even if keyword searches would leave the addressee with no real doubt about the exercise required. The court may modify an overbroad request only by applying the blue-pencil test; it cannot rewrite it. In determining relevance for oral evidence requested by a foreign court, the English court should ordinarily rely on the requesting court’s assessment. It may intervene only where that court plainly failed to consider relevance and the evidence is clearly irrelevant on a broad examination.

The claimant sought assistance under the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Hague Convention for documents and oral evidence from Dr Jerome McAleer in proceedings pending in California. Master Eastman made an order giving effect to the letter of request. Dr McAleer applied to set aside the document-production provisions and to exclude two oral-examination topics concerning Twist DX or RPA technology and the dismissal of Andrew Miller.

The issues were whether the document categories specified particular documents as required by section 2(4)(b), and whether the English court should determine that the two examination topics were irrelevant.

1. Document production. The order was set aside under section 2(4)(b) of the Evidence (Proceedings in Other Jurisdictions) Act 1975. The governing approach required: (i) individual documents separately described, or a compendious description clearly indicating the exact document in each case; and (ii) evidence that the documents existed or were likely to be in the addressee’s possession, custody or power. The request failed the first limb, although the evidence was sufficient on the second limb (paras [29]–[45]).
2. The categories covered wide classes of correspondence identified by subject matter. They did not identify particular documents. The need for further judgment after keyword searching confirmed that the exercise was disclosure rather than production of specified documents. Tajik Aluminium Plant v Hydro Aluminium AS [2006] 1 WLR 767 supported that conclusion, but did not replace the approach in In Re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 (paras [31]–[45]).
3. An overbroad request could be modified only by applying the blue-pencil test. It could not be rewritten. The judge observed that, had the documents been sufficiently particularised, the request would not generally have been oppressive, although requiring production within seven days would have been oppressive and capable of modification (paras [37], [46]–[49]).
4. Relevance of oral examination. The application to exclude topics J8 and J9 was dismissed. The English court should generally rely on the requesting court’s determination of relevance. Intervention was permissible only if the requesting court plainly had not considered relevance and the evidence was clearly irrelevant even on a broad examination. Neither condition was satisfied. The Californian court had received an assertion of relevance, the defendant had not objected on relevance grounds, and the material before the English court did not establish clear irrelevance (paras [52]–[57]).
5. The application therefore succeeded in relation to document production but failed in relation to the oral-examination topics. The precise consequential order and costs were to be dealt with subsequently (paras [58]–[59]).

The judgment describes an order made by Master Eastman on 26 July 2018, pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975, giving effect to a letter of request from the Superior Court of California. The present application varied that order by setting aside its document-production provisions and refusing to exclude the disputed oral-examination topics.