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In re Ex Parte Application of Ipcom Gmbh & Co. Kg

United States District Court, N.D. California, San Jose Division

April 10, 2014

IN RE EX PARTE APPLICATION OF IPCOM GmbH & CO. KG, Applicant.

ORDER GRANTING IPCOM LEAVE TO OBTAIN DISCOVERY FOR USE IN GERMAN LITIGATION PURSUANT TO 28 U.S.C. § 1782 (RE: DOCKET NO. 1)

PAUL S. GREWAL, Magistrate Judge.

Before the court is IPCom GMBH & Co. KG's application for a court order to obtain discovery of Cupertino-based Apple Inc. for use in a German proceeding pursuant to 28 U.S.C. § 1782(a).

I. BACKGROUND

On March 2, 2012, IPCom filed a patent infringement action against Apple in Germany.[1] As part of that litigation, Apple represented it entered license agreements covering a number of patents essential to UMTS and GSM, GRPS, and EDGE wireless standards.[2] Despite IPCom's request that Apple produce those license agreements, Apple has not done so.[3] After this court was informed by public sources that IPCom's patent infringement was dismissed pursuant to a finding of non-infringement, the court ordered IPCom to file a status update on whether the discovery sought remained warranted. IPCom responded with a timely, helpful analysis explaining that while its patent litigation suit had been dismissed, it remained pending on appeal before the Court of Appeals in Karlsruhe, Germany.[4] IPCom pointed out that unlike American appellate courts, German appellate courts may receive facts on appeal and therefore the discovery sought by IPCom remains warranted.[5]

II. LEGAL STANDARDS

"A district court may grant an application pursuant to 28 U.S.C. § 1782 where:

(1) the person from whom the discovery is sought resides or is found in the district of the district court to which the application is made,
(2) the discovery is for use in a proceeding before a foreign tribunal, and
(3) the application is made by a foreign or internal tribunal or any interested person."[6]

However, simply because a court has the authority under Section 1782 to grant an application does not mean that it is required to do so.[7] The Supreme Court has identified several factors that a court should take into consideration in ruling on a Section 1782 request:

(1) whether the material sought is within the foreign tribunal's jurisdictional reach and thus accessible absent Section 1782 aid;
(2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance;
(3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a ...

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