The case of the day is In re Cathode Ray Tube Antitrust Litigation (N.D. Cal. 2013). The main multi-district litigation involves antitrust claims against cathode ray tube manufacturers. Sharp Corp., an electronics manufacturer, was a plaintiff in a similar litigation in Korea against Korean CRT manufacturers. Sharp sought leave under 28 USC § 1782 to serve a subpoena on Saveri & Saveri, Inc. in aid of the Korean litigation. Saveri and many of the MDL defendants moved to quash.

The judge granted the motion to quash, holding that the Intel factors did not favor Sharp. The details of the analysis are not that interesting. The judge did, though, make a couple of points worth noting. First, although there is a good deal of authority for the proposition that the party opposing the subpoena has the burden to show that the foreign tribunal would not be receptive to evidence gathered under § 1782, the judge held that the precedents were not binding on him and avoided making a ruling either way. It may be that the burden of proof on receptivity is now up for grabs, in the Northern District of California at least. The judge also seemed to say that resort to § 1782 as a first resort, when foreign methods of discovery were available, might amount to an attempt to circumvent the foreign tribunal’s proof-gathering restrictions. Again, this runs contrary to the precedents.

I hope this decision is not followed on these points. If I had to suggest a way to distinguish it, I would suggest that the case arose on a party’s objections to findings made by a special master in a multi-district litigation, and that the judge may have deferred more to the special master, given the importance of keeping a firm hand on management of discovery in such a case, than he ought to have done.