In English, Irish, Australian and Canadian Courts, a third party disclosure order, akin to a third party subpoena in the United States, but one which must be applied for to the court. The crucial difference is that in a subpoena a lawyer can issue the subpoena and the recipient or an affected party must usually apply to quash (cancel) it as unreasonable, unfair, etc. By contrast a Norwich Pharmacal Order must be sought from the court and the applicant must show it is reasonable to grant. The tests for granting a Norwich Pharmacal Order are similar if inverted from the grounds which might lead to the quashing of a subpoena.
A Norwich Pharmacal Order may be granted:
- where the information sought is necessary to identify wrongdoers, for example infringers;
- to find, protect and preserve evidence reasonably likely to be in the target’s possession that supports a claim or potentially valid claim; and/or that may substantiate or support an action against either known or unknow
- to trace and conserve assets.
Courts will typically consider the following factors in determining whether to grant the order:
- the relationship of the third part target to the legal claims, their role and involvement in the matter;
- whether the third party target is the only or most practicable source of the information sought or items whose preservation is desired;
- the costs to and burden on that third party target and the willingness of the applicant to indemnify the target, minimise the burden; and
- the usually catchall of ‘the interests of justice.’