JANSSEN PHARMACEUTICA, INC (NOW KNOWN AS JANSSEN PHARMACEUTICALS, INC)

Evidence - Adducing evidence - Course of evidence - Evidence before trial - Letter of request - Requests by foreign states or courts - When refused - Request for depositions as part of US discovery process rather than for the purpose of evidence at the trial are not to be granted.

British American Tobacco Australia Services Ltd the Eubanks [2004] NSWCA 158, 60 NSWLR 483 applied.

Judgment Number: [2021] TASSC 65

STATE OF WASHINGTON v JOHNSON AND JOHNSON, JANSSEN PHARMACEUTICALS, INC. AND ORTH0-McNEIL-JANSSEN PHARMACEUTICALS, INC. (NOW KNOWN AS JANSSEN PHARMACEUTICALS, INC) AND JANSSEN PHARMACEUTICA, INC (NOW KNOWN AS JANSSEN PHARMACEUTICALS, INC)

EDITED VERSION OF REASONS FOR JUDGMENT DELIVERED ORALLY

1 The State of Washington in the United States of America has taken proceedings against several pharmaceutical companies alleging that they created a public nuisance and alleging breaches of the Washington Consumer Protection Act in that in trade or commerce they engaged in false and misleading conduct by, amongst other things, downplaying the side effects of opioids produced from genetically engineered poppies grown in the State of Tasmania.

2 The State of Washington wishes to obtain evidence or information from three witnesses located in Tasmania, namely:

• Anthony Fist, a scientist employed by Tasmanian Alkaloids Pty Ltd who it is thought helped develop a mutant high thebaine poppy and other genetically engineered poppies.
• Robert French, a poppy grower employed by Tasmanian Alkaloids Pty Ltd.
• Will Bignall, a poppy grower employed by Tasmanian Alkaloids Pty Ltd

3 Judge Oishi of the State of Washington, King County Superior Court, on 14 October 2021 granted a motion brought by the State of Washington for the issuance of a letter of request under the Hague Evidence Convention to allow the State of Washington to take evidence from the Tasmanian witnesses on certain specified matters. The motion was granted after Judge Oishi had considered submissions including the defendants' response to the motion.

4 The request was transmitted to the Supreme Court of Tasmania and on 22 October 2021 I made orders on the papers and ex-parte, as is mandated by Rules of the Supreme Court 2000, 972. The order provided for the Tasmanian witnesses to be orally examined in Tasmania and for the witnesses to be represented by counsel or attorneys.

5 16 and 17 December had been allocated for the examination of the witnesses and the witnesses had been served with the subpoenas requiring their attendance. The subpoenas were all served on 16 November 2021.

6 By interlocutory application filed by the Australian solicitors for the four defendants in the US proceedings orders were sought setting aside the ex-parte orders made in this Court providing for the examination of the witnesses, setting aside the subpoenas and dismissing the Originating Application upon which the Tasmanian orders were made.

7 Prior to the matter coming to this Court, on 4 October 2021 Judge Oishi had made orders which required discovery to be completed by 21 March 2022 with the trial to commence on 9 May 2022.

8 In support of the application the defendants contend that, although there may be some ambiguity in the request issued by the US Court, on scrutiny it can be identified as a request for the taking of pre-trial depositions as part of the US discovery process, which unlike the discovery process applicable in many common law countries, including Australia and England, enables the pre-trial oral examination of witnesses by way of broad ranging investigation going beyond matters which would be admissible in evidence at the trial. For example questions to assist counsel in considering what further investigations might be appropriate and questions requiring the witnesses at the depositions to identify other potential witnesses may be asked.

9 Discovery type depositions in US proceedings cannot be taken in Australia.

10 The legislation enabling the examination of witnesses in foreign proceedings to occur in Australia is based on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The Convention came into existence in March 1970 and Australia become a signatory some time later. At the time Australia became a signatory it did so with the reservation that letters of request would not be executed if issued for the purpose of obtaining pre-trial discovery of documents.

11 The enabling legislation in Tasmania, now to be found in the Evidence on Commission Act 2001 (Tas), s 5, contains a prohibition in ss (4) in terms:

"The order is not to require any particular steps to be taken unless they are steps that may be required to be taken by way of obtaining evidence for the purpose of proceedings in the Supreme Court".

12 US style discovery through depositions taken from witnesses is not a step which is recognised in Australian Courts, nor for example in English Courts. It is far more broad ranging. The distinction was explained by Lord Devlin in Radio Corporation of America v Rauland Corporation [1956] 1 QB 618 at 643 - 644 as follows:

"Recent cases in this country - for example, Board v Thomas Hedley & Co - have shown that discovery of documents may sometimes be obtained not only because they are relevant in the case itself but because they may fairly lead to a line of inquiry which would disclose relevant material, but it is plain that that principle has been carried very much further in the United States of America than it has been carried in this country. In the United States of America it is not restricted merely to obtaining a disclosure of documents from the other party to the suit, but there is a procedure, which might be called a pre-trial procedure in the courts of the United States which allows interrogation not merely of the parties to the suit but also of persons who may be witnesses in the suit, or whom it may be thought may be witnesses in the suit, and which requires them to answer questions and produce documents. The questions would not necessarily be restricted to matters which were relevant in the suit, nor would the production be necessarily restricted to admissible evidence, but they might be such as would lead to a train of inquiry which might itself lead to relevant material.

It is that pre-trial procedure, the obtaining of depositions from witnesses with a view to discovery, which the District Court at Illinois is at present engaged upon, and accordingly the defendant corporations, the present applicants, applied to that court for process which under English law they could not possibly get in order to obtain what is in effect discovery from witnesses in this country. In accordance with the ordinary American procedure, they were allowed to obtain that process and the application before the court, therefore, is not an application to examine witnesses for the purpose of their evidence being used directly in the suit but to examine witnesses in connexion with the discovery proceedings.

Before the court has any jurisdiction to grant this application it must be made to appear that the foreign court is desirous of obtaining 'testimony in relation to such matter' within the meaning of section 1 of the Foreign Tribunals Evidence Act 1856, and the question that we have to determine is whether this testimony which it is sought to obtain is 'testimony' within the meaning of the statute."

13 In Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547 Lord Diplock, speaking of the equivalent of the Tasmanian provision s 5(4), explained that the discovery restriction contained in the Act applies to oral discovery as well as to documentary discovery. His Lordship said at p 634 - 635:

"Subsection (3) applies to both oral and documentary evidence. It is this provision which prohibits the making of an order for the examination of a witness not a party to the action for the purpose of seeking information which, though inadmissible at the trial, appears to be reasonably calculated to lead to the discovery of admissible evidence. This is permitted by rule 26 of the United States Federal Rules of Civil Procedure. Under the procedure of the High Court of England depositions of witnesses, either at home or abroad, may be taken before examiners for use at the trial, but the subject matter of such depositions is restricted to the evidence admissible at the trial. So the evidence requested in the letters rogatory can only be ordered to the extent that it is confined to evidence which will be admissible at the trial of the action in Virginia.

The difficulty involved in the application of subsection (3) to proceedings in the United States courts lies in the fact that the examination for discovery of witnesses who are not parties to the action serves a dual purpose; the ordinary purpose of discovery with the wide line of inquiry which that permits and also the purpose of obtaining in the form of a deposition evidence from the witness which will be admissible at the trial in the event of the witness not being called in person."

14 These authorities were included in the careful analysis of Spigelman CJ in British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158, 60 NSWLR 483. At [27] and [45] his Honour said of the New South Wales provision, expressed in equivalent terms to the Tasmania provision and equivalent terms to the English provision:

"Both the text of Article 23 and subsequent legislation, including s 33(6) of the Act, refer only to 'documents'. However, as has been pointed out, there is no logical basis for distinguishing between document discovery and oral examination before trial. Similar observations appear in the authorities (See Radio Corporation of America v Rauland Corporation (at 645); Re Norway's Application (No 2) [1990] 1 AC 723 at 781).

The opponent did not submit that the Act would enable evidence to be obtained by way of pre-trial discovery in the manner permitted in the United States. As noted above in my consideration of the history of the legislative scheme, this was an important aspect of the reservation permitted by Article 23 of the Hague Convention, a reservation which was adopted in Australia and reflected in the express terms of s 33(6). The 1975 English Act upon which our Act is based had already been construed in the Rio Tinto v Westinghouse litigation to exclude such use of the letter of request procedure. It was against this background that the identical terminology of the English Act was adopted for purposes of the Australian uniform scheme in 1988. Further, as noted above, the English authorities suggest that the same principle must apply to discovery by way of interrogatories and oral examination, presumably by force of s 33(4)."

15 It follows that if the order which I made on 22 October permits the depositions to proceed, at least in part, by way of US style pre-trial discovery, it has been made without jurisdiction.

16 I know turn to a consideration of whether the order made pursuant to the request has the effect of permitting pre-trial discovery.

17 In Eubanks at [42] Chief Justice Spigelman said that the method of appraisal adopted in English law should be adopted in Australia and then set out the method of appraisal summarised by Burnton J in Gredd v Arpad Busson (2003) EWHC 3001 at [27]. There his Honour listed fourteen propositions. I shall apply such of these propositions as are relevant to my appraisal in the present case without staying to repeat the lengthy passage in the judgment in full. The propositions to which I refer are numbered 3 to 6, 9, 10, 13 (first sentence) and 14 and are as follows:

"(3) The issue whether order sought is for an illegitimate investigation rather than to obtain evidence to be adduced at trial is to be determined principally be reference to the terms of the letter of request and of the proposed order of this court. However, the court will consider the evidence before it as a whole.

(4) Particularly pertinent will be the stage at which the order is sought and the extent to which the party seeking the order is able to demonstrate that the information sought is relevant to issues in the foreign proceedings in the sense of being capable of being adduced at trial in support of those issues.

(5) The fact that testimony is sought as part of the discovery process in the United States proceedings is not of itself decisive. The fact that is sought at the discovery stage is an indication that what is sought is discovery. However, the High Court has power to make an order for such testimony to be taken if it is limited to evidence to be adduced at the trial. The court has a discretion to refuse to make an order at that stage even for such evidence to be taken on the grounds that it is premature, for example, and that the deposition of the proposed witness will be more efficiently and shortly taken, involving less inconvenience or intrusion into matters confidential to him or to other third parties, if it is taken at a later stage.

(6) Statements in a letter of request to the effect that evidence is sought for use at trial are relevant but not conclusive. The letter of request must be viewed as a whole.

(9) The fact that the evidence sought is described in wide or general terms is not inconsistent with it being sought for the trial. There will be occasions where the subject matter of the testimony sought is so extensive as to preclude specification. However, where that is the case, the court in the exercise of its discretion may refuse to make an order on the basis that it would be oppressive to the witness to require him to prepare himself to give evidence and to require him to give evidence without sufficient identification of the matters to be addressed.

(10) The court will take into account any safeguards or restrictions incorporated in the terms of the proposed order. However, the order made by this court cannot depart substantially from the terms of the letter of request. The limitation on the power of amendment of the terms of the deposition sought by the letter of request was referred to by Lord Fraser in the Westinghouse case[1978] AC 547, 644-645 and in turn by Sir Richard Scott V.C. at p.1169 of First American Corporation.

(13) In determining whether an order offends the statutory prohibition in relation to discovery of documents, the court must address the terms of the order rather than the claimed intentions of the party seeking it.

(14) Similar principles must apply where what is sought is a deposition without any written documents. The person conducting the examination of the witness, the witness himself, those representing him and those representing the parties to the foreign litigation must be able to ascertain the limits of proper questioning of the witness from the terms of the order itself."

18 I commence my appraisal with the terms of the request, which includes the following:

1 That it was issued after receiving the response of the defendants to the motion for the issuance of the letter of request.

2 That the depositions are to be taken by 7 January 2022 with the cut off date selected because under the case management schedule discovery is not permitted after 21 March 2022 and early depositions will enable the parties to obtain additional testimony from other witnesses if needed.

3 That the testimony is for use at the trial based upon the plaintiff's assertions that the evidence will be relevant.

4 That the testimony, in part, is to ascertain the identities of other people who worked with the witnesses.

5 That the depositions are to be taken by US attorneys.

19 I note that under the relevant US procedural rules the depositions may be put in evidence at the trial in whole or in part, subject to admissibility under local evidentiary rules, if the trial judge so allows.

20 There is an affidavit from an attorney in the US who is an associate of one of the law firms representing the plaintiff. He has deposed that where foreign witnesses are beyond the reach of US subpoenas the only way to obtain their testimony for use as evidence at the trial is to take the depositions during the discovery phase. However, no explanation was given by the deponent as to why a trial deposition must be taken during the discovery phase and so I do not sufficient information to accept the assertion.

21 Before the letter of request issued, the argument in the US centred around relevance of the testimony to be taken and whether it was to be taken for use at the trial. Notwithstanding the course of the argument there are a number of features, although not individually or collectively decisive, which indicate that the depositions are, at least in part, designed to be part of the discovery process. These features are:

"1 The oral argument concerning the issue of the letter of request was presented initially to a Master whose role was to manage discovery and it was on his recommendation that the trial Judge, being Judge Oishi, ordered the issuance of the letter of request.

2 The request was made during the discovery phase of the proceedings and is timed to have the testimony taken before the discovery phase comes to an end.

3 The request was plainly issued, at least in part, on the basis of discovery matters because it contemplates the witnesses being questioned about the identity of other potential witnesses. The letter of request specifies that a purpose is to obtain additional testimony from other witnesses if needed.

4 The submission of the plaintiff in support of the application for the issuance of the letter of request was expressed using the phrase many times 'The State seeks information'. This is a phrase more apt to discovery than it is to the presentation of evidence at a civil trial.

5 Relevance at trial for the purpose of admissibility of evidence does not appear to have been carefully considered by the discovery Master or by Judge Oishi as the topics to be the subject of the questioning are expressed in broad terms without identifying the issues at trial to which the evidence will be as relevant."

22 In assessing whether the order made on 22 October should stand having regard to the propositions set out in Gredd v Arpad Busson I accept that a purpose of the taking of the depositions is to have them admitted into evidence at the trial insofar as may be relevant. However, I conclude from the facts that the oral arguments as to the issuance of the letter of request were initially presented to the Master responsible for discovery rather than to the trial Judge; that the request is framed widely enough to include discovery questions being asked in the course of the depositions; that the request was framed following submissions in terms that "The State seeks information" and that the request itself states that a purpose is to obtain additional testimony from other witnesses, that the request goes beyond that which can be the lawful subject of an order under the Evidence on Commission Act.

23 As the original order was made ex-parte in can be set aside short of appeal. For this proposition I refer to SS Kalibia v Wilson [1910] HCA 77; 11 CLR 689 at 694.

24 The plaintiff has advised that it is content that if the order made 22 October is set aside that it be substituted with a modified order excluding questioning on the topic of the identification of co-workers of the three proposed witnesses. This late concession does not allievate the problem of the broad drafting of the other topics to be the subject of the questioning. It reinforces my view that the letter of request was issued without adequate consideration being given to questions of relevance.

25 Detailed consideration as to questions of admissibility at trial is a matter for the issuing Court and not for the recipient Court or the person appointed to take the examination. In this regard I adopt the passage in Eubanks appearing at [71] which is as follows:

"Consideration of relevance no doubt arise in all systems and can be expected to be determined in a generally similar manner in different kinds of legal systems. It is not, however, desirable that the proceedings in Australia should determine actual relevance or admissibility in the particular proceedings in the requesting State. A general determination of apparent relevance is all that is required."

I also adopt the passage in First American Corporation v Zayed [1998] EWCA Civ 817; (1999) 1 WLR 1154 at 1165, namely:

"In my opinion, therefore, an English court must look at the issue of the relevance of the requested testimony, if it is raised, in broad terms, leaving to the foreign court, in all but the clearest cases, the decision as to whether particular answer, or answers on particular topics, would constitute relevant admissible evidence.

In summary, in considering the letters of request in this case the court should, in my opinion, ask first whether the intended witnesses can reasonably be expected to have relevant evidence to give on the topics mentioned in the amended schedule of requested testimony, and second whether the intention underlying the formulation of those topics is an intention to obtain evidence for use at the trial or is some other investigatory, and therefore impermissible intention."

26 In my view any necessary modification to the request is best dealt with by the US Court and that Court, if it chooses to do so, can include in the letter of request a statement along the lines suggested in Allergan Inc v Amazon Medica [2018] EWHC 307 at [57]. Namely a statement along the lines:

"I understand the basis on which the [Australian] Court operates may be rather more restrictive than that with which I am familiar, but even so I can say that the evidence sought is relevant to issues for trial."

27 Further, if discovery is not part of the request, the statement might go on to say that the US Court has obtained an undertaking from the plaintiff that evidence taken at the depositions will not be used for train of enquiry purposes or for any purpose other than for use as evidence at the trial.

28 There is ample time for a new letter of request to be issued and acted upon before the allocated trial commencement date being May 2022 and so dismissal of the application should not prevent trial evidence being obtained from Tasmanian witnesses.

29 In accordance with these reasons the order which I made on 22 October should be set aside along with the subpoenas issued by reason of it and the Originating Application seeking the order should be dismissed.