Lavecky v Visa Inc [2017] FCA 454

Lavecky v Visa Inc [2017] FCA 454

The Court approved the Applicants making the proposed §1782 applications because the documents sought from Jefferies, Atos and Global Payments were likely to be significant to the Applicants' pleaded lost opportunity case, the evidence showed the requests were directed to a visible forensic reality rather than a fishing expedition, no alternative Australian procedure was shown to be available against those non-parties outside Australia, the proposed document discovery was analogous to non-party discovery under FCR 20.23 and not alien to Federal Court procedure, the proposed applications were not obviously doomed under United States law, and the likely cost and delay were proportionate...

Jurisdiction
Australia
Judgment Date
08 May 2017
Procedural Posture
Practice and Procedure Application for Court Endorsement of Proposed Applications Under §1782 of Title 28 of the United States Code Seeking Documents for Use in Federal Court Proceedings / Interlocutory Application Heard on 11 April 2017; Reasons and Orders Made on 8 May 2017
Outcome
Application approved subject to condition; costs of the hearing on 11 April 2017 ordered to be costs in the cause.
Legal Topics
['court Endorsement of Proposed Foreign Discovery Applications' 'united States Code Title 28 § 1782' 'case Management Under S 37 M of the Federal Court of Australia Act 1976 (cth)' 'non Party Discovery' 'fishing Expedition' 'lost Opportunity Damages']
['practice and Procedure' 'civil Procedure' 'competition and Consumer Law'] ['court Endorsement of Proposed Foreign Discovery Applications' 'united States Code Title 28 § 1782' 'case Management Under S 37 M of the Federal Court of Australia Act 1976 (cth)' 'non Party Discovery' 'fishing Expedition' 'lost Opportunity Damages']

Case Brief

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Procedural Posture

Practice and Procedure Application for Court Endorsement of Proposed Applications Under §1782 of Title 28 of the United States Code Seeking Documents for Use in Federal Court Proceedings / Interlocutory Application Heard on 11 April 2017; Reasons and Orders Made on 8 May 2017

Legal Issues

  1. 1 ['Whether the Court should endorse the Applicants making proposed applications under §1782 of Title 28 of the United States Code for documents from Global Payments Inc, Jefferies LLC and Atos SE.' "Whether the proposed §1782 applications were a fishing expedition or instead directed to material important to the Applicants' pleaded lost opportunity case." 'Whether there were other available methods for obtaining the documents from non-parties outside Australia.' "Whether the proposed applications were proportionate and consistent with the Court's case management role, including in relation to cost, delay and possible failure before the United States District Court." 'Whether conditions should be imposed on any endorsement.']

Ratio Decidendi

The Court approved the Applicants making the proposed §1782 applications because the documents sought from Jefferies, Atos and Global Payments were likely to be significant to the Applicants' pleaded lost opportunity case, the evidence showed the requests were directed to a visible forensic reality rather than a fishing expedition, no alternative Australian procedure was shown to be available against those non-parties outside Australia, the proposed document discovery was analogous to non-party discovery under FCR 20.23 and not alien to Federal Court procedure, the proposed applications were not obviously doomed under United States law, and the likely cost and delay were proportionate...

Court Disposition

Application approved subject to condition; costs of the hearing on 11 April 2017 ordered to be costs in the cause.

Orders

  • ['The Court approves the Applicants making applications for orders under §1782 of Title 28 of the United States Code seeking documents from Global Payments Inc, Jefferies LLC and Atos SE. in substantially the same form as those exhibited to the Affidavit of Jonathan Milner of 9 February 2017 on condition that any...