Interesting Post on the New English Rules on Extraterritorial Disclosure

Jonathan Shaffer-Goddard published an interesting post yesterday at the Transnational Litigation Blog about the October 2022 amendment to the English Civil Procedure Rules regarding extraterritorial disclosure orders. These are orders that the English court can grant ex parte and that can be served on a person abroad, including in the United States, for the purpose of requiring disclosure of the true identity of a defendant or potential defendant, or disclosure of what has happened to the claimant’s property, for use in pending or prospective actions in the English courts.

A few points come to mind. First, Mr. Shaffer-Goddard is probably right to say that many recipients of these orders will likely comply with them because they cannot be certain that the English court lacks jurisdiction and they do not want to take “the reputational risk of not complying.” On the other hand, a wrongdoer or even a particularly persnickety US entity that does not do business in England might well refuse to comply, as the English court cannot enforce its own orders abroad. Fortunately, the US has a proceeding ready-made for such situations, 28 U.S.C. § 1782, which allows an English litigant to seek discovery in the United States even without an order of the English court. Section 1782 proceedings that seek only the identity of a defendant, for example, are likely to be at the lower end of cost and complexity.

Second, it’s somewhat interesting to compare the new English rule with the US Federal Rules of Civil Procedure, which makes it clear that subpoenas may only be served in the United States (with an exception in cases of US citizens abroad). It’s surprising to me that England has gotten ahead of the United States on the extraterritorial effect of its discovery or disclosure orders.

Third, I wonder what is the principled reason why these disclosure orders should be limited to the identity of defendants or to information about the claimant’s property. Although Norwich Pharmacal orders and Bankers Trust orders are traditional, once you say that the English courts have jurisdiction to require persons abroad to make disclosures along those lines, is there a jurisdictional reason to doubt that the English courts might (if the rules were amended to permit it) have jurisdiction to require persons abroad to make disclosures of other kinds of evidence?

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