Subpoenas and third-party discovery are useful litigation tools used to seek documents from a non-party that may be relevant and important to a case.

The ease of this process is complicated if the non-party is in a foreign jurisdiction, in which case both the foreign and local legal position need to be considered.

This issue recently arose in Alto Pty Ltd v General Motors Australia and New Zealand (formerly GM Holden Pty Ltd) & General Motors Holden NSC Pty Ltd¹ (Alto v Holden). A copy of the judgment can be found here.

In Alto v Holden, Alto Pty Ltd (Alto) was granted approval by the Australian Supreme Court to bring an application in the US under section 1782 of Title 28 of the United States Code (s 1782 Application) for discovery against General Motors Corporation, a non-party and the ultimate holding company of the defendants to the proceeding.

In this paper, we set out the relevant principles to obtaining leave from an Australian Court or tribunal to bring a s 1782 Application.

Relevant principles

A practice has developed in Australia of initially seeking the relevant Australian Court or tribunal’s approval prior to bringing a s 1782 Application² in the US.

In Alto v Holden, Meek J confirmed that the purpose of seeking Court approval is to:

1. avoid an anti-suit injunction³;  and

2. enable the Australian Court to exercise supervision over its own processes.⁴

The approval by an Australian Court is not to speak to the ultimate outcome of any application in a US court, which is a matter for that Court.⁵

Meek J also considered the non-exhaustive list of principles set out by Perram J in Lavecky v Visa Inc⁶ where approval was also granted. These principles are as follows:

1. What is the importance of the material to be sought under the procedure to the applicant’s case?
2. Are there other methods available for obtaining it?
3. Does the material sought impinge upon or undermine some important procedural limitation in this jurisdiction such as, for example, the unwillingness of the Court to permit fishing expeditions or, perhaps, the general unwillingness of this Court to order depositions?
4. What is the cost involved in the process for the parties before this Court?
5. Is that cost a proportionate burden having regard to the significance of the material?
6. Is the proposed proceeding under s 1782 in the US District Court frivolous or obviously doomed to fail?
7. How long might the applications take to resolve in the US and what impact might they have upon the timely preparation of the matter before the Australian Court for trial?
8. Is there any need to impose conditions upon the endorsement so as to address any issues arising from 1- 7 above?

(Lavecky Principles)

Application of relevant principles

In Alto v Holden, only principles 1. and 7. of the Lavecky Principles were contested by the defendants.⁷

For principle 1. (described as the Importance Consideration), it was found that the material is of direct relevance to and is important for the purposes of the real issues in the proceeding.⁸

For principle 7. (described as the Delay Consideration), one of the reasons Meek J relied on was that the further preparation of expert evidence could progress during the time it took to bring the 1782 Application.⁹

While the ‘Importance’ and ‘Delay’ Considerations were the only contested Lavecky Principles, Alto did put on evidence to comply with each of principles 1. – 7. This included evidence of:

1. US lawyer as to prospects, costs, and likely timeframe of the s 1782 Application;¹⁰ 
2. discovery being undertaken by the parties for substantially the same categories as are sought in the s 1782 Application;¹¹
3. discovery being completed by the parties;¹²
4. discovery producing very little or no documents for the categories sought in the s 1782 Application;¹³
5. a request to Holden as the steps had been taken to make enquiries with their parent company, which Alto argued was effectively ignored.¹⁴

The Lavecky Principles are not intended to be exhaustive but do serve as a useful guide to any party seeking approval to bring a s 1782 Application.

Further information

Litigation and Dispute Resolution Partner and Global Co-Chair of Dentons Litigation Practice Louise Massey, and Managing Associate Finbarr O’Connell acted for Alto in obtaining approval to bring a s 1782 Application. Please contact us if you would like further information in relation to a possible s 1782 Application or discovery more generally. As a global law firm with offices in over 200 locations in 80 countries, Dentons is positioned to provide advice on discovery across multiple jurisdictions.

1. [2023] NSWSC 759.
2. Alto [93] citing Jones v Treasury Wine Estates Ltd (2016) 241 FCR 111; [2016] FCAFC 59 [48] and McAssey & Anor v Nemo (BC) HoldCo & Anor [2020] NSWSC 1893 (McAssey) [8].
3. [96].
4. [96] citing McAssey at [9]; Lavecky v at [14]-[15] and White Oak Commercial Finance Europe (Non-Levered) Ltd v Insurance Australia Ltd [2022] FCA 1587 at [19]-[20].
5. [97].
6. [2017] FCA 454 [19].
7. [100].
8. [152].
9. [159].
10. [101].
11. [105].
12. [86].
13. [107].
14. [133].