Lawrence Collins (Lord Collins of Mapesbury, former justice of the UK Supreme Court) has a new post at the Transnational Litigation Blog on the use and misuse of Section 1782 in aid of UK litigation. The post has a useful review of cases where the UK courts have enjoined Section 1782 applications, and cases where they have refused injunctions.
Although there are a couple of cases granting injunctions, my impression is that in most cases Section 1782 applications in aid of UK litigation just happen, without any involvement of the UK court. That, I think, is as it should be, since in general the UK court shouldn’t care about where the parties obtain their evidence. Bankers Trust, one of the two cases in which an injunction issued, was extraordinary; it involved an application after the English trial ended. The other case, Omega Group, was less extraordinary, and maybe a little surprising. The witnesses were set to testify in the English case, and the court held that if they did not testify, the injunction could be lifted. Perhaps there is some force to the idea that witnesses who are going to testify voluntarily in the English case should not also be subject to deposition in the United States, though I wonder how common that situation could be.
Collins ends with a question about the practical utility of Section 1782. in cases where the use of US law is challenged in the UK courts. That’s a fair question, of course, though I think that parties would not pursue discovery in the US in the face of opposition in the UK unless they have reason to think the value of the evidence will justify the cost.