The question in the case is this: if I produce documents to you in a US litigation subject to a protective order requiring you to use them only for purposes of the US litigation, and after you receive them you ask the court to modify the protective order to allow you to use them in a related foreign litigation whose procedures wouldn’t have allowed you to obtain them in discovery, what standard should the court use in deciding whether to modify the protective order? You’ve just performed a bait-and-switch; does the fact that the other litigation is pending abroad change how the court should view your request?
The case was before the Federal Circuit on a petition for a writ of mandamus. The court threw everyone for a loop by asking for supplemental briefing on the question whether, in light of Intel, § 1782 “provides the exclusive means for securing documents from another party for use in a foreign proceeding.” After the parties briefed that question, the court threw everyone for a second loop by inviting the government to brief that question and also the question whether § 1782 “in all circumstances provides the exclusive means for securing documents from another party for use in a foreign proceeding, when such documents have already been obtained in the course of discovery.”
These questions suggested the court was contemplating holding that under § 1782 the court lacked the power to modify the protective order to allow the party to use the confidential material in the foreign cases—that §1782 truly was the only means for obtaining discovery for use in foreign cases. This would have been radical. Fortunately, however, in the end the court left the statute alone, holding that it didn’t directly govern. But the court said, appropriately in my view, that the factors that inform a court’s discretion about whether to grant a § 1782 application—the Intel factors—also should govern the court’s decision whether to modify a protective order so as to permit a party to use confidential materials in a foreign case.
Why do I say this is appropriate? The same comity concerns that exist in a § 1782 case exist here. Should a US court countenance efforts at circumventing a foreign court’s proof-gathering restrictions? Should a US court require a party to a foreign litigation to give discovery rather than leave the question up to the foreign court hearing the case? These issues are immediately evident in POSCO and, I think, motivated the court to look to the familiar Intel standard to help guide lower courts. Maybe, when considered in this light, the lower court will approve the bait-and-switch, and maybe not, but at least the court will now have its attention focused on the comity implications of its decision.