United States District Court, N.D. California
ORDER GRANTING MOTION FOR ISSUANCE OF LETTER ROGATORY
RE: DKT. NO. 1750
M. Ryu United States Magistrate Judge.
Microsoft Mobile Inc. and Microsoft Mobile Oy (together,
“Microsoft”) move the court for the issuance of a
letter rogatory to obtain the deposition testimony of a
foreign witness, former Samsung SDI Co., Ltd. employee Hee
Joung Moon. [Docket No. 1750.] The Indirect Purchaser
Plaintiffs (“IPPs”) join the motion. [Docket No.
1823.] Samsung SDI Co., Ltd. and Samsung SDI America, Inc.
(together, “Samsung”) oppose the motion. [Docket
No. 1785.] This matter is suitable for resolution without
oral argument. Civ. L.R. 7-1(b). For the following reasons,
Microsoft's motion is granted.
action, Microsoft alleges a conspiracy to fix, raise,
stabilize, and maintain prices for lithium ion battery cells
and lithium ion batteries that ran from at least January 1,
2000 through at least May 31, 2011. Microsoft Mobile Inc.
v. LG Chem America, Inc., et al., Case No. 15-cv-3443
YGR, see generally Docket No. 1 (Compl.). Microsoft
alleges that Samsung participated in the alleged conspiracy,
including taking part in meetings with lithium ion battery
competitors in Japan on a semiannual basis and sharing
information with competitors. According to Microsoft,
non-parties Nokia Inc. and Nokia Corporation (together,
“Nokia”) purchased a significant volume of
lithium ion batteries at inflated prices directly from the
defendants, including Samsung, during the alleged conspiracy,
and Microsoft acquired Nokia's claims against the
defendants as a result of its acquisition of Nokia's
mobile device business. Id.; Mot. 1.
to Microsoft, Hee Joung Moon, a former Samsung employee, was
involved in the alleged conspiracy. Microsoft asserts that
Moon was Samsung's primary local salesperson to Nokia in
Germany during the alleged conspiracy and was involved in
discussions about lithium ion battery pricing, including
discussions with Sony and other competitors. Microsoft
submits translated copies of emails sent and received by Moon
that it claims reflect communications about pricing and
supplies of lithium ion batteries with Samsung's
competitors. [Docket No. 1750-1 (Miller Decl., Apr. 24, 2017)
Exs. A-C.] Microsoft further alleges that Moon
“exchanged sensitive pricing information of common
customers with a Mr. Negi of competitor Sony.” Compl.
¶ 137. It argues that because Nokia negotiated its
prices with Samsung on a global basis, “the inflated
prices Mr. Moon negotiated with Nokia affected Nokia's
purchases into the United States and are the subject of
[Microsoft's] lawsuit.” Mot. 4.
asserts that Moon possesses relevant information, including
information about 1) the sale of lithium ion batteries from
Samsung to Nokia during the alleged conspiracy; 2) his own
communications with other lithium ion battery suppliers
during the alleged conspiracy; and 3) other Samsung
employees' communications with other lithium ion battery
suppliers during the alleged conspiracy. It contends upon
information and belief that Moon currently resides in the
United Kingdom, Miller Decl. ¶ 2, and asks the court to
issue a letter rogatory directed toward Moon to the
appropriate judicial authority of the United Kingdom to
secure his deposition. [Docket No. 1750-6 (Proposed Letter
opposes the motion. Samsung asserts that all of the testimony
that Microsoft seeks from Moon relates to alleged activities
in Europe and Asia, and claims that Microsoft's motion
“appears to be an improper effort to obtain this
Court's blessing to obtain extraterritorial discovery for
use in an arbitration proceeding that Microsoft commenced
against [Samsung] in Finland” on April 20, 2017,
shortly before filing the present motion. Opp'n 1. On the
same day it filed its opposition to Microsoft's motion
for issuance of letter rogatory, Samsung moved to stay
Microsoft's complaint against Samsung in its entirety
pending the arbitration in Finland. [See Docket No.
1783.] In its opposition, Samsung asks the court to deny
Microsoft's motion pending the outcome of its motion to
stay, arguing that if the stay is granted, “there will
be no basis for Microsoft's request to depose a foreign
witness, ” and if the stay is denied, Microsoft can
renew its motion. Opp'n 2. Samsung offers no other
arguments in opposition to Microsoft's motion and does
not refute or deny Microsoft's assertions about Moon.
subsequently sought leave to file a reply to the opposition,
which the court granted. [Docket Nos. 1791 (Reply), 1804 (May
24, 2017 Order granting leave to file reply).] In its reply,
Microsoft asserts that Samsung's requested stay
“has no bearing” on its motion for issuance of a
letter rogatory, since Moon's testimony is relevant to
Microsoft's pending claims against Defendants LG Chem
Ltd. and LG Chem America, Inc. (“LG Chem”), which
have not been stayed. Reply 2.
31, 2017, the IPPs joined Microsoft's motion for issuance
of a letter rogatory to compel Moon's deposition. On June
1, 2017, Microsoft and Samsung stipulated to stay
Microsoft's claims against Samsung based on its United
States purchases of lithium ion batteries pending the
arbitration. The court approved the stipulation and
terminated Samsung's motion to stay on June 1, 2017.
[Docket Nos. 1824 (stipulation), 1825 (June 1, 2017 Order
letter rogatory is a formal written request sent by a court
to a foreign court asking that the testimony of a witness
residing within that foreign court's jurisdiction be
taken pursuant to the direction of that foreign court and
transmitted to the requesting court for use in a pending
action.” Asis Internet Servs. v. Optin Global,
Inc., No. 05-cv-5124 JCS, 2007 WL 1880369, at *3 (N.D.
Cal. June 29, 2007) (citing Marroquin-Manriquez v.
I.N.S., 699 F.2d 129 (3rd Cir. 1983) and Wright, Miller,
& Marcus, Federal Practice and Procedure (2007) §
2083). A letter rogatory can also include requests for the
production of documents. Id. (citing United
States v. Reagan, 453 F.2d 165, 168 (6th Cir. 1971)
(affirming district court's issuance of letters rogatory
seeking documents from investigation conducted by German
authorities)). Federal Rule of Civil Procedure 28(b) provides
that a deposition may be taken in a foreign country
“under a letter of request, whether or not captioned a
‘letter rogatory'[.]” Fed.R.Civ.P.
court is inherently vested with the authority to issue
letters rogatory.” Asis, 2007 WL 1880369, at
*3 (citing United States v. Staples, 256 F.2d 290,
292 (9th Cir. 1958) and Reagan, 453 F.2d at 172);
see also 28 U.S.C. § 1781(a)(2) (providing the
State Department with the power “to receive a letter
rogatory issued, or request made, by a tribunal in the United
States, to transmit it to the foreign or international
tribunal, officer, or agency to whom it is addressed, and to
receive and return it after execution.”).
“Whether to issue such a letter is a matter of
discretion for the court.” Asis, 2007 WL
1880369, at *3 (citations omitted). “When determining
whether to exercise its discretion, a court will generally
not weigh the evidence sought from the discovery request nor
will it attempt to predict whether that evidence will
actually be obtained. Ultimately, a court's decision
whether to issue a letter rogatory requires an application of
Rule 28(b) in light of the scope of discovery provided for by
the Federal Rules of Civil Procedure.” Id.
Rule of Civil Procedure 26 provides
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the ...