Allergan, Inc & Anor v Amazon Medica & Anor

Under the Evidence (Proceedings in Other Jurisdictions) Act 1975, the court must distinguish evidence genuinely sought for use in civil proceedings from material sought for investigation. The two-stage inquiry is whether the proposed witness can reasonably be expected to have relevant evidence on the specified topics, and whether the request is intended to obtain evidence for trial rather than information for an investigatory purpose.

A foreign court’s statement of relevance normally carries weight, but the English court may scrutinise the request where it was issued without opposition and does not address the limits of the English jurisdiction. A request that is substantially investigatory cannot be saved by incidental relevance. The order was set aside.

Allergan brought proceedings in the United States District Court for the Central District of California against Amazon Medica concerning the alleged unlawful importation and marketing of Allergan-branded products. Allergan sought oral evidence from Mr Mudan and documents held by his companies, which had supplied products to Amazon Medica.

Master Yoxall made an order under the Evidence (Proceedings in Other Jurisdictions) Act 1975 pursuant to a letter of request from the US court. Mr and Mrs Mudan and the corporate applicants applied to set the order aside. The principal issues were whether the evidence was relevant to the US proceedings and intended for trial, whether the documentary requests were sufficiently specific, and whether the order was oppressive or otherwise objectionable.

1. Jurisdiction. The court’s power under the Evidence (Proceedings in Other Jurisdictions) Act 1975 is limited to steps which could be required for obtaining evidence in civil proceedings in England. The modern two-stage test, derived from First American Corp v Sheikh Zayed Al-Nahyan [1999] 1 WLR 1154, asks whether the intended witness can reasonably be expected to have relevant evidence on the requested topics and whether the request is intended to obtain evidence for trial rather than for investigation.
2. The existence of an eventual trial is not itself decisive. Nor was the US action analogous to the investigatory proceedings considered in Re International Power Industries NV [1985] BCLC 128. Nevertheless, the procedural stage and likely course of the foreign proceedings were relevant background.
3. The letter of request had been issued on an unopposed paper application and largely recorded Allergan’s assertions. Its breadth, lack of time limits and express purposes of identifying defendants and quantifying loss showed that it was at least partly investigatory. There was no adequate explanation of what evidence was required to prove the pleaded claims or to support the relief sought. The legitimate relevance identified was too slight to outweigh the impermissible purpose.
4. The request therefore failed the two-stage test. The court also concluded that an English court would not issue an outward letter of request or witness summons in the circumstances. The order was set aside for want of jurisdiction.
5. Had jurisdiction existed, the request would have been treated as a dual-purpose request with a mainly investigatory character. Following United States of America v Philip Morris Inc (unrep) 10 December 2003, the court would generally refuse such a request unless the impermissible areas could be excluded without undue difficulty. The oral requests required substantial rewriting, which was not permissible.
6. As to documents, section 2(4)(b) required particular documents to be specified. Compendious descriptions could be acceptable where individual documents could be identified and the witness was left in no real doubt about what had to be produced. Had relevance been established, the amended documentary requests would generally have been permitted insofar as they addressed trial evidence.
7. The remaining objections would not have justified refusal. The alleged burden of redaction did not establish oppression; self-incrimination could be addressed through the usual privilege procedure; and data-protection concerns did not exempt an otherwise legitimate disclosure. The court nevertheless observed that applicants for letters of request must give a full and frank account of matters bearing on jurisdiction and discretion.