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Federal Circuit: District Courts Must Address Intel Factors In Determining Whether to Modify A Protective Order In Foreign Proceedings
On July 22, 2015, a Federal Circuit panel of Judges Newman, Dyk, and Hughes issued an opinion, authored by Judge Dyk, in In re: POSCO, Case No. 2015-112. The panel granted a petition of mandamus vacating a district court order that had granted a motion to modify a protective order to allow discovery in foreign proceedings. Judge Hughes wrote a separate concurrence.
Patentee Nippon Steel & Sumitomo Metal Corporation (Nippon Steel) originally brought suit against petitioner POSCO in the District of New Jersey for patent infringement and unfair competition. A protective order was entered “prohibiting the cross-use of confidential materials which shall be used by the receiving Party solely for purposes of the prosecution or defense of this action.” Slip op. at 2. Nippon Steel also filed a trade-secret misappropriation suit against POSCO in Japan, and POSCO filed a declaratory judgment action denying the same in Korea. Nippon Steel moved to modify the district court protective order to allow foreign counsel access to confidential documents. A Special Discovery Master issued a Letter Opinion arguing that access to the documents should be granted under “the balancing framework for modifying discovery orders set forth by the Third Circuit in Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994).” Id. at 3. The district court affirmed the Special Master's ruling, and POSCO petitioned for mandamus review, which the Federal Circuit took up to address “claims of confidentiality that raise an important issue of first impression.” Id. at 4. Briefing on the role of 28 U.S.C. '1782, a statutory “means for securing documents from another party for use in a foreign proceeding,” was requested. Id.
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