Case of the Day: In re POSCO

The case of the day is In re POSCO (Fed. Cir. 2015). I first noted the case back in April, and I covered the government’s amicus brief a few weeks later.

The question in the case is this: if I produce documents to you in a US litigation subject to a protective order requiring you to use them only for purposes of the US litigation, and after you receive them you ask the court to modify the protective order to allow you to use them in a related foreign litigation whose procedures wouldn’t have allowed you to obtain them in discovery, what standard should the court use in deciding whether to modify the protective order? You’ve just performed a bait-and-switch; does the fact that the other litigation is pending abroad change how the court should view your request?

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