Commercial Litigation and Arbitration

28 U.S.C. § 1782 — No Abuse of Discretion to Deny Discovery That Foreign Tribunal Has Previously Ruled Irrelevant — § 1782 Orders Are Final and Immediately Appealable under § 1291

Astonics Advanced Elec. Sys. Corp. v. Lufthansa Technik AG, 2014 U.S. App. LEXIS 4322 (9th Cir. Mar. 7, 2014):

Astronics Advanced Electronic Systems Corporation (AES) filed a petition under 28 U.S.C. § 1782 in the Western  [*2] District of Washington seeking discovery from Lufthansa Technik AG (Lufthansa) for use in a court proceeding in Mannheim, Germany. The district court expressed doubt that Lufthansa could be "found" in the Western District of Washington within the meaning of § 1782, concluded that § 1782 did not authorize the district court to compel the production of documents located outside the United States, and declined to exercise its discretion to compel discovery. AES appeals.

"[O]rders made pursuant to § 1782 are final, and thus appealable under 28 U.S.C. § 1291." In re Letters Rogatory from the Tokyo Dist. Prosecutor's Office, Tokyo, Japan, 16 F.3d 1016, 1018 n.1 (9th Cir.1994). We review the district court's interpretation of § 1782 de novo. U.S. v. Sealed 1, Letter of Request for Legal Assistance from the Deputy Prosecutor Gen. of the Russian Fed'n, 235 F.3d 1200, 1203 (9th Cir. 2000). But we review the district court's decision not to honor a request for assistance under § 1782 for abuse of discretion. Four Pillars Enters. Co., v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir. 2002).


"The courts have stressed that, even if [the absolute requirements of § 1782] are met, a district court still retains the discretion to deny a request." In re Premises Located at 840 140th  [*4] Ave. NE, Bellevue, Wash., 634 F.3d 557, 563 (9th Cir. 2011). In this case, many or all of the documents AES seeks are located in Germany, where the Mannheim action is pending. Of particular interest to AES is a licensing agreement between Lufthansa and a third party. AES sought discovery of this license in the German court and was denied because the German court deemed it irrelevant. We agree with the district court that "[t]he German courts are best situated to adjudicate any dispute as to discovery of those documents, and any order of this Court granting discovery of documents located in Germany would conflict with the Mannheim court." AES argues that it should have been granted discovery under § 1782 because Lufthansa's § 1782 petition was granted by the same court. But, unlike the discovery requested by AES, the German court has not previously denied the discovery requested by Lufthansa. The district court did not abuse its discretion by denying AES's § 1782 petition. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004) (listing factors to consider when determining whether § 1782 petition should be granted).


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