Application by 24/7 Customer, Inc

1. [1]

   By summons filed on 2 November 2017, 24/7 Customer, Inc sought ex-parte orders under the Evidence on Commission Act 1995 (NSW), to permit evidence on oath to be obtained in this State, from Ms Parkin, a former employee of Singtel Optus Pty Ltd, pursuant to a request issued on 31 October 2017, by the Hon. Kandis A. Westmore, who is a US Magistrate Judge of the United States District Court for the Northern District of California, United States of America. The request was directed to the Central Authority of the requested State, identified to be the Private International Law Section of the Attorney General’s Department of the Australian Government.

2. [2]

   The application was supported by an affidavit sworn by the company’s Australian solicitor, Mr Pagent, to which was annexed the request and other relevant documents, including pleadings in the US proceedings.

3. [3]

   The evidence establishes that the Company is a defendant in the proceedings brought in the US Court by Live Person Inc, a competitor. In issue in the proceedings, which the Company defends, are claims of misappropriation or infringement of intellectual property; breach of contract; unlawful conduct; and wrongful interference in contractual relations. These claims are directed to the circumstances in which Optus, a former customer of Live Person, Inc, became a customer of the Company.

4. [4]

   Ms Parkin was at the relevant time Optus’ Director of Digital Service. Documents produced in the US proceedings indicate that she was then in communication with both companies. The matters she is sought to be examined about, as a result, are identified in the US Court’s request.

5. [5]

   There is evidence that Ms Parkin, with whom Mr Pagent communicated in November 2017 about this application, has since notified Optus of the application, but it did not seek to appear at the hearing of the application. The Company also proposes to notify Optus that the examination of Ms Parkin is to proceed under the Court’s orders.

6. [6]

   It is ss 32 and 33 of the Evidence on Commission Act which govern the application. They relevantly provide:

7. [7]

   Part 52 of the Uniform Civil Procedure Rules 2005 (NSW) also governs this application, relevantly providing in r 52.1:

8. [8]

   On the evidence, I am satisfied that these statutory requirements have been met.

9. [9]

   The request of the US Court in respect of which the orders sought are pursued, is in evidence: s 32(1)(a). It identifies the proceedings to be “Live Person, Inc v 24/7 Customer, Inc, Number 3:17-cv-01268-JST” in the United States District Court for the Northern District of California. It also identifies the names and addresses of the parties and their representatives; the nature of the proceedings; provides a summary of the complaint advanced and the defence pursued; explains how the evidence about Optus relates to what is in issue; and identifies the subject matters about which Ms Parkin is to be examined. This, I consider, satisfies the requirements of s 33(1)(b).

10. [10]

    The request also specifies that it is oral testimony to be given under oath or affirmation and recorded by identified means, which is sought to be obtained from Ms Parkin at the trial due to proceed in 2018 before the US court in February 2018.

11. [11]

    A deadline to close the collection of Ms Parkin’s evidence has been specified in the request to be 11 December 2017, or as soon as practicable thereafter.

12. [12]

    Arrangements have been made for Gleeson SC and Sheahan SC to preside over the examination of Ms Parkin, fixed to be undertaken from 11 to 15 December 2017.

13. [13]

    It is proposed that Ms Parkin’s testimony will then be given, to the extent compatible with Australian law, under the United States Federal Rules of Civil procedure, which involves her being examined by counsel for both parties. The requirement specified is that she testifies under oath or affirmation to provide complete and truthful testimony pursuant to United States Federal Rule of Evidence 603. Provision is also made in relation to the designation of evidence, as to specified levels of confidentiality.

14. [14]

    The orders sought reflect these aspects of the request and, I am also satisfied, make appropriate provision for the Company to obtain the requested evidence in this State, in order to give effect to the request: s 33. I am also satisfied that what is proposed are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in this Court: s 33(4).

15. [15]

    The orders also make appropriate provision in respect of Ms Parkin’s conduct money: s 33(7).

16. [16]

    The request also identified Mr Pagent as the person to whom the executed request was to be returned. It is he who brought the proceedings on the Company's behalf and is the solicitor on the record. That satisfied the requirement of Rule 52.1.

17. [17]

    In the result I am satisfied that the Court must give effect to the US Court's request.

Orders

1. [18]

   For these reasons, I make the orders sought in the summons which were pressed at the hearing, as follows: