In re: Posco, Posco America Corporation

In re: Posco, Posco America Corporation
Docket No. 2015-112
NEWMAN, DYK, HUGHES (C)
July 22, 2015

Brief Summary: Request for writ of mandamus regarding modification of a protective order allowing foreign courts to access POSCO’s proprietary information granted because the DC did not consider the Intel factors.

Summary: POSCO requested and was granted a write of mandamus from an order of the DC NJ modifying a protective order allowing foreign courts to access POSCO’s proprietary information. The dispute relates to an infringement suits brought in New Jersey and Japan by Nippon Steel against POSCO, as well as a DJ action filed in Korea by POSCO. The NJ DC entered a protective order prohibiting the cross-use of confidential materials, which “shall be used by the receiving Party solely for the purposes of the prosecution or defense of this action.” The opinion explains that discovery in the US is “more generous than in Japan and Korea”, so Nippon requested the DC to modify the protective order in an attempt to provide JP and Korean counsel with “approximately 200 pages of proprietary documentation relating to POSCO’s manufacturing process.” The USSC Intel (2004) factors (1) whether “the person from whom discovery is sought is a participant in the foreign proceeding”; 2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court of agency abroad to U.S. federal-court judicial assistance”; 3) “whether the 1782(a) 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 request is otherwise “unduly intrusive or burdensome”) and 28 § USC 1782(a) (“The district court of the district in which a person resides or is found may order him to…produce a document or other thing for use in a proceeding in a foreign or international tribunal…upon the application of any interested person…[and otherwise specified] the document of other thing [will be] produced[] in accordance with the” FCRP) “must be considered together with other considerations pertinent under [FRCP] 26 as articulated in Pansy” (3rd Cir. 1994). Here, the FC panel determined the DC did not address the § 1782 factors but instead applied the Pansy standard even though “the notion of the use of discovery in foreign proceedings was not addressed at all in Pansy”. Mandamus was therefore granted and the DC directed to “conduct the proper assessment given due consideration to the Intel factors.” Judge Hughes’ concurred but “would not go as far as the majority to hold” the DC “must consider the Intel factors.”

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