Proofpoint, Inc. v Maiwand Youssoftay

Proofpoint, Inc, the claimant, sued Abnormal Security, Inc in the Superior Court of California, starting those proceedings on 10 December 2021. Its claims there included alleged interference with contractual relations, inducing breach of contract, misappropriation of trade secrets and unfair competition. The claimant's case was that Abnormal had recruited key employees and used information they allegedly took.

The respondent, Mr Maiwand Youssoftay, lives in Singapore and works in Abnormal's Singapore office. He is not a party to the Californian case, but the claimant alleged he was central to Abnormal's scheme. The claimant obtained a subpoena from the Californian court for 12 categories of documents and then filed Originating Application No 288 of 2023 in the General Division of the High Court under ss 3 and 4 of the Evidence (Civil Proceedings in Other Jurisdictions) Act 1979, asking for an order compelling the respondent to produce them. The judge gave an ex tempore judgment.

1. Whether the application was made pursuant to a request issued by or on behalf of a foreign court, as s 3(a) of the Act requires
2. Whether the Californian Commission to Take Deposition Outside California counted as such a request
3. Whether the respondent's willingness to disclose on conditions could give the court power to order production

Under O 55 r 2(2) of the Rules of Court 2021, an applicant must exhibit the letter of request or other document showing that the foreign court wants the evidence. The claimant relied on a Commission dated 21 December 2022. Although a commission can be a request under s 2 of the Act, the judge held that the document must unambiguously show, on its face, the foreign court's wish to obtain evidence in Singapore.

The Commission fell short for two reasons. It had none of the wording found in the Californian form of letter of request used for Hague Convention requests, which suggested it governed evidence-taking only within the United States. It was also issued under a Californian provision dealing with depositions in another US state, territory or insular possession, and Singapore had been written in as such a place, which was plainly wrong. Counsel said US counsel had advised the Commission was enough, but no affidavit explained away these ambiguities.

Since s 3(a) was not met, the court had no powers under the Act and did not need to look at s 3(b) or s 4. The respondent's possible willingness to disclose on conditions made no difference, because the power to order production comes from the Act, not from the parties' agreement.

The High Court dismissed the claimant's application and fixed costs at $5,000, to be paid by the claimant to the respondent.