The case of the day is Ex Parte LG Electronics Deutschland GmbH (S.D. Cal. 2012). The decision is a fairly routine and orthodox example of a § 1782 request that was rightly granted. LG sought leave to serve a subpoena on Qualcomm, Inc. to obtain information for use in patent infringement suits in Germany and Japan that Mitsubishi had brought against LG. Kudos to LG for narrowly tailoring its proposed subpoena: in essence, it sought any licenses or covenants not to sue that Mitsubishi had granted to Qualcomm.
The statutory prerequisites for a § 1782 application were plainly met. The judge’s Intel analysis, though, was less self-evident. Because the documents were presumably in Mitsubishi’s possession, the judge thought that the “jurisdictional reach” factor weighed against granting the motion. On the other hand, LG made a sufficient showing the the foreign courts would be receptive to the evidence. The remaining two factors were inconclusive: the fact that Mitsubishi had the documents gave the judge some pause when consideringw hether LG was trying to evade foreign proof-gathering restrictions, and LG’s failure to propose a protective order gave the judge some concern about the potential for undue burden on Qualcomm. (This last concern is probably overstated since no doubt if Qualcomm wants a protective order, it will ask for one at the appropriate time). On balance, given the United States’s general policy toward liberal discovery, the judge granted the request.