In today’s case of the day, Coloplast A/S v. Generic Medical Devices, Inc. (W.D. Wash. 2011), Coloplast, a Danish firm, sued Generic Medical for patent infringement. Generic Medical moved to compel Coloplast to produce documents in the possession of Poges, one of its French subsidiaries.
The judge’s Aérospatiale analysis was a bit dodgy. Generic argued that Pouges “may have information relevant” to several issues in the case, and the judge agreed. Fine. The judge also found that Coloplast faced a risk of criminal prosecution if it complied with the discovery request. But his analysis of several of the other factors leaves me scratching my head. On specificity, Generic had requested “any document in Porges’ possession that are [sic] responsive to Generic’s Request for Production.” The judge held that this was sufficiently specific. Really? This is about as broad and non-specific as I could imagine. Also, unless I’m missing something, the request as quoted by the court is utterly circular. On the origin of the documents, the judge found that there was no evidence as to their origin, but surely there is, prima facie, reason to think that the documents of a French subsidiary of a Danish firm were not created in the United States. And on the availability of alternate means of securing the information, the judge rejected the Hague Evidence Convention as an alternative on the grounds that it is “voluntary” (again, really?) and on the grounds of the French blocking statute. But the blocking statute is subject to the Convention, so I think the judge is just wrong about this.
This is not to say that the case should have come out the other way, though maybe it should have given the lack of specificity of the request and the fact that it was the plaintiff invoking the Convention (though that point carries less weight in this case than in Metso, because here the question was not whether the plaintiff had to produce its own documents under the Rules of Civil Procedure, but rather whether it had to produce its subsidiary’s documents). Aérospatiale is not a license to give comity concerns such short shrift.