Wednesday, July 22, 2015

The CAFC addresses US discovery for use in foreign jurisdictions in In re Posco

POSCO (of Korea) was sued by Nippon Steel & Sumitomo Metal
Corporation (“Nippon Steel") for patent infringement in the
federal district court of New Jersey. There was also a suit by
Nippon against POSCO in Japan. At issue was the providing of about
200 pages of US discovery materials to Nippon lawyers in Japan.

A master in NJ applied Pansy v. Borough of
Stroudsburg, 23 F.3d 772 (3d Cir. 1994) and granted the request.
The judge affirmed the master.

Of review, the CAFC noted: Our review is appro-
priate because the order in question turns on
claims of confidentiality that
raise an important issue of first
impression. See In re United States, 669 F.3d 1333, 1336
(Fed. Cir. 2012)

The CAFC brought up the relevance of 28 U.S.C. §
1782 or the Supreme Court’s decision
in IntelCorp. v. Advanced
Micro Devices, Inc., 542 U.S. 241 (2004)

The outcome:

We therefore
grant mandamus for purposes of directing
the district court to conduct the proper assessment
giving due consideration to the
Intel factors.

Accordingly, POSCO’s petition is granted, the order
granting the motion to modify the protective order to allow for use of
discovery in foreign proceedings is
vacated, and the
district court is directed to conduct further proceedings
consistent with this Order.



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