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David Ferrera, chair of the firm’s Product Liability and Toxic Tort Litigation practice group, was quoted by Law360 in “Fed. Circ. Sets Hurdle For Using US Discovery Overseas” on July 24. The article discusses how a recent Federal Circuit decision in a district court patent case helps explain a murky area of law and may make it tough to use documents obtained in U.S. discovery in proceedings filed in foreign jurisdictions. The case may have implications outside the patent context, as the issue of using U.S. discovery in foreign litigations often spills over into other areas of law such as product liability litigation.

The Federal Circuit decision vacated a district court ruling that allowed courts in Japan and Korea to access confidential documents that were produced under a protective order in a U.S. patent suit. David notes that compared to the permissive standard the district court judge used "it seems like the Federal Circuit is putting more restraints on how district courts can look at this.”

The Federal Circuit ordered the district court judge to reconsider his decision by taking into account Section 1782 of the U.S. Code, which states that a district court "may order" a person to produce a document for use in a foreign tribunal. The Federal Circuit further ruled that the judge must also consider the U.S. Supreme Court's 2004 decision in Intel Corp. v. Advanced Micro Devices Inc., which interpreted Section 1782 and sets out factors courts must look at when a party seeks to use foreign discovery in a foreign case. These include whether the request is an attempt to circumvent foreign laws, the nature of the foreign proceeding, and whether the request is unduly burdensome. This ruling will make it more difficult for parties attempting to use broader US discovery rules to obtain documents they cannot access in foreign cases.

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