INVERNESS MEDICAL INNOVATIONS, INC AND ANOR V MDS DIAGNOSTICS LTD AND ANOR HC AK CIV 2007-404-748

INVERNESS MEDICAL INNOVATIONS, INC AND ANOR V MDS DIAGNOSTICS LTD AND ANOR HC AK CIV 2007-404-748

The Court was satisfied special circumstances existed — common factual issues between proceedings, relevance of the discovered documents to the role of the second defendant in both jurisdictions, and necessity for a full and fair determination by the Federal Court — and therefore granted a limited release of the implied undertaking permitting Inverness's New Zealand lawyers to provide copies to Australian counsel on the condition they use them only for the Federal Court litigation; costs lie where they fall.

Citation
openlaw-b1c217ac_82db_4b7f_909d_9668fb999cc9.pdf
Parties
First Plaintiff: Inverness Medical Innovations, Inc; Second Plaintiff: Inverness Medical Switzerland GmbH; First Defendant: MDS Diagnostics Ltd; Second Defendant: Prakash Appanna
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 March 2009
Procedural Posture
Civil (commercial) / Pre Trial Interlocutory Application for Partial Release of Implied Undertaking; Trial Set Down to Commence 18 May 2009
Outcome
Partial release of implied undertaking granted; costs to lie where they fall.
Legal Topics
Release of Implied Undertaking, Use of Discovered Documents in Foreign Proceedings, Parallel Proceedings, Costs
Civil Procedure Evidence Discovery and Undertakings International Litigation Release of Implied Undertaking Use of Discovered Documents in Foreign Proceedings Parallel Proceedings Costs

Case Brief

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Parties

Inverness Medical Innovations, Inc

First Plaintiff

Inverness Medical Switzerland GmbH

Second Plaintiff

MDS Diagnostics Ltd

First Defendant

Prakash Appanna

Second Defendant

Procedural Posture

Civil (commercial) / Pre Trial Interlocutory Application for Partial Release of Implied Undertaking; Trial Set Down to Commence 18 May 2009

Legal Issues

  1. 1 Whether special circumstances justify release or modification of the implied undertaking not to use discovered documents for other purposes
  2. 2 Whether documents discovered in New Zealand may be used in parallel Australian proceedings
  3. 3 Whether costs should be awarded on the application

Ratio Decidendi

The Court was satisfied special circumstances existed — common factual issues between proceedings, relevance of the discovered documents to the role of the second defendant in both jurisdictions, and necessity for a full and fair determination by the Federal Court — and therefore granted a limited release of the implied undertaking permitting Inverness's New Zealand lawyers to provide copies to Australian counsel on the condition they use them only for the Federal Court litigation; costs lie where they fall.

Court Disposition

Partial release of implied undertaking granted; costs to lie where they fall.

Orders

  • Release Inverness and its New Zealand legal advisors from the implied undertaking not to use documents discovered by MDS and Prakash Appanna to the extent of granting leave to provide copies of documents considered relevant to the Australian litigation
  • Condition that Australian lawyers receiving copies will not use them for any purpose other than the litigation presently before the Federal Court