I noted the Federal Circuit’s curiosity about § 1782 in In re POSCO, a mandamus case in which the court, sua sponte, asked the parties and then the government to brief the question whether § 1782 is the exclusive means to obtain evidence for use in a foreign proceeding.
Continue reading The Government’s Amicus Brief In POSCO
The case of the day is In re Application of Grupo Unidos Por El Canal, S.A. (D. Colo. 2015). The Autoridad del Canal de Panama, the agency in charge of the Panama Canal, is in the course of an expansion of the canal to include a third set of locks. Grupo Unidos Por El Canal, one of the contractors engaged on the project, claims that ACP breached its contract with GUPC “by concealing and withholding critical information regarding the true nature of the existing conditions at the Project and the status of other aspects of the Panama Canal expansion.” GUPC demanded arbitration. As provided in the parties’ contract, the arbitration was held in Miami under the ICC Rules. The parties agreed that the arbitration was governed by the FAA, and they agreed that discovery in the arbitration was governed by the IBA Rules on the Taking of Evidence in International Commercial Arbitration.
Continue reading Case of the Day: In re Application of Grupo Unidos Por El Canal
In re POSCO, a petition for a writ of mandamus now pending in the Federal Circuit, is a case for § 1782 watchers to keep an eye on. In 2012, Nippon Steel sued POSCO in Japan for trade secret misappropriation. Both firms were in the business of manufacturing grain-oriented electrical steel. POSCO brought an action for a declaratory judgment in Korea. Nippon sued POSCO for patent infringement and violations of the Lanham Act in New Jersey, while POSCO sought reexamination of Nippon’s patents in the USPTO. The patent issues were being litigated only in the United States; the trade secret issues were being litigated only abroad.
In the US case, the parties agreed on a confidentiality order to allow the exchange of highly confidential information necessary for the litigation of a patent litigation case. The order, as original entered, forbade the use of information exchanged in the foreign lawsuits. Once the order was entered, POSCO produced, so to speak, the crown jewels. Nippon then persuaded the District Court to modify the order to permit use of the confidential information in the foreign litigation. POSCO, alleging that it would suffer irreparable harm if the documents were to be sent abroad, sought a writ of manadamus.
Continue reading Case to Watch: In re POSCO