The case of the day is Lufthansa Technik AG v. Astronics Corp. (W.D.N.Y. 2011). Lufthansa had a patent on power supply technology for use in the passenger cabin of commercial aircraft. It sued Astronics Advanced Electronic Systems, Inc., in Germany for patent infringement. Astronics AES filed its own suit in Germany seeking to invalidate the patent. The infringement suit has apparently been heard, and the court had the matter under advisement. The invalidity suit was in the starting phases; Lufthansa had not yet responded to the complaint.

Lufthansa sought judicial assistance in taking discovery from Astronics AES’s US parent company, Astronics Corp., which was located in East Aurora, New York. Lufthansa brought a second judicial assistance proceeding in the Western District of Washington, seeking essentially the same discovery from Astronics AES itself.

The court’s decision was curious. It held that because the discovery sought in the two proceedings was identical, the general rule against duplicative litigation required dismissal. I don’t really buy this. In domestic US litigation, there would be no absolute bar to serving subpoenas for the same documents on two entities located in two districts. The two judicial assistance proceedings are not true civil actions asserting claims for relief; they are merely vehicles for the issuance of the two subpoenas. I don’t see that the considerations behind the policy against duplicative litigation really apply in this context. To be sure, once the subpoenas are issued, the target could object to the subpoena on the grounds of undue burden and argue that the documents were in the possession of another entity that is a more proper target given the nature of the case. But that’s not to say that the subpoena shouldn’t issue in the first instance.