United States District Court, N.D. California
ORDER TO SHOW CAUSE WHY DISCOVERY SHOULD NOT BE
ORDERED PURSUANT TO 28 U.S.C. § 1782 RE: DKT. NO.
VAN KEULEN United States Magistrate Judge.
Court has reviewed Nikon Corporation's
(“Nikon”) application for an order to show cause
before this Court why an order should not be issued pursuant
to 28 U.S.C. § 1782 permitting Nikon to compel
production of documents pursuant to subpoena,  to be issued by
Nikon's attorneys and served upon GlobalFoundries. ECF 1.
Having considered the application and in the interest of
efficiency, the Court issues an order to show cause why
Nikon's application should not be granted at a hearing on
July 11, 2017, at 10:00 a.m., in Courtroom 6 on the 4th Floor
of the San Jose Courthouse, 280 South First Street, San Jose,
California. Nikon shall complete service of both its
application and this Order by June 15, 2017. Nikon shall file
a proof of service with the court by June 16, 2017.
28 U.S.C. § 1782, this Court may order discovery for use
in a proceeding in a foreign or international tribunal. 28
U.S.C. § 1782(a). Pursuant to the statute, a party in
the foreign litigation may seek such discovery by filing an
ex parte application. Id. In such an
instance, the court would grant or deny the application after
considering the relevant factors listed below. If the court
grants the application, the responding party would then be
able to object to the issued discovery requests, and the
parties may return to court on a discovery motion such as a
motion to compel or motion to quash in order to resolve the
dispute. In order to avoid the inevitable subsequent motions
and to allow the Court to make a decision on a more complete
record, the Court orders GlobalFoundries to show cause as
described below in response to Nikon's application.
the Court orders GlobalFoundries to file any opposition to
Nikon's application under Section 1782. There are three
statutory prerequisites for discovery pursuant to Section
1782 to be granted: (1) the person from whom discovery is
sought must reside or be found in the district of the
district court where the application is made; (2) the
discovery must be for use in a proceeding before a foreign
tribunal; and (3) the application must be made by the foreign
tribunal or “any interested person.” 28 U.S.C.
simply because a court has the authority under Section 1782
to grant an application does not mean that it is required to
do so. See Intel Corp. v. Advanced Micro Devices,
542 U.S. 241, 264 (2004). 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 foreign country or the United States; and
(4) whether the subpoena contains unduly intrusive or
In re Chevron Corp., No. M-19-111, 2010 U.S. Dist.
LEXIS 47034, at *16 (S.D.N.Y. May 10, 2010); see also
Intel, 542 U.S. at 264-65.
opposition should address both the Section 1782 statutory
factors and the Intel factors. GlobalFoundries shall
file its opposition, if any, by June 28, 2017. Nikon may file
its reply by July 3, 2017.
Court also orders the parties to meet and confer on the
validity and scope of the U.S. Subpoena under the Federal
Rules of Civil Procedure. The parties shall submit a joint
letter brief that, for each disputed request, sets forth
side-by-side each party's position including any proposed
compromise. The parties shall submit the joint letter brief
by June 30, 2017.
addition, the parties shall meet and confer regarding a
protective order. Should the parties require the Court's
assistance regarding a protective order, the parties shall
submit their respective proposed protective orders redlined
against the Court's model protective order by July7,
 The Court acknowledges and discloses
that the undersigned represented Nikon in a single matter in
2001. ECF 5. That representation ended over ten years ago and
does not bear on the Court's ...