Case of the Day: CPC Patent Technologies v. Apple

The case of the day is CPC Patent Technologies Pty. Ltd. v. Apple, Inc. (9th Cir. 2022). The case settles an unsexy but important procedural question in Section 1782 practice in the Ninth Circuit, one that I’ve discussed several times before, most notably here. What authority does a magistrate judge have to decide applications under Section 1782 in the absence of party consent?

The issue arises because under Article III of the US Constitution, the judicial power of the United States is vested in Supreme Court and the inferior courts established by Congress, and the judges of those courts hold office during their “good behaviour,” i.e., for life, unless impeached and removed from office. But under 28 U.S.C. § 631, the district courts appoint magistrate judges to serve for terms of seven years. So magistrate judges cannot be judges in the constitutional sense. For this reason, the statute (28 U.S.C. § 636) provides that magistrate judges may decide non-dispositive matters, subject to reconsideration by the judge if the magistrate judge’s decision is “clearly erroneous or contrary to law.” The statute also provides that magistrate judges may make a report and recommendation to the judge on a dispositive matter, and if a party objects to any of the findings or rulings, the judge will decide the matter de novo.

Since many courts assign Section 1782 applications to magistrate judges in the first instance, the question arises: is a decision on the application dispositive, or non-dispositive? The Ninth Circuit has now held that a decision denying a Section 1782 application is a decision on a dispositive matter, and thus that the judge reviews the matter de novo if a party objects. This seems clearly correct: the order disposed of the entire case. But no other appellate court had spoken clearly on the issue. And as the court pointed out, its decision seems to follow from its earlier holding that it has appellate jurisdiction over a denial of a 1782 application. If the court has jurisdiction because the denial is final for purposes of the appellate jurisdiction statute, 28 U.S.C. § 1291, then it would be awkward to say the denial was not also dispositive.

Note that the outcome is probably different when a magistrate judge grants an application. Such a decision merely authorizes issuance of a subpoena, and the target may then seek to quash the subpoena. Or the adverse party in the foreign litigation may seek to intervene for the same purpose. A party may still ask the judge to review a magistrate judge’s decision granting the application, but in that case, it seems to me that the review should be for clear error. And appeals from orders granting or denying motions to quash or to compel will raise their own issues.

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