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Technik v. Panasonic Avionics Corp.

United States District Court, W.D. Washington, Seattle

December 11, 2017

LUFTHANSA TECHNIK, Petitioner,
v.
PANASONIC AVIONICS CORP., Respondent, ASTRONICS ADVANCED ELECTRONICS SYSTEMS CORP., Intervenor.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Lufthansa Technik AG's (“Lufthansa”) application for a discovery order pursuant to 28 U.S.C. § 1782 (Dkt. No. 1). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         Lufthansa and Astronics Advances Electrical Systems Corporation (“AES”) compete in the manufacture of power-supply systems used in aircraft cabins. (Dkt. No. 35 at 1.) The companies are engaged in patent litigation in Germany over allegations that AES infringed Lufthansa's European patent for its “Electrical Power Supply Device” by marketing and selling its own system in Europe. (Dkt. No. 1 at 2.) In 2011, Lufthansa applied to this court for Section 1782 discovery from AES. In re Lufthansa Technik AG, C11-1386-JCC, Dkt. No. 1 (W.D. Wash. Jul. 22, 2011). The Court permitted discovery relating to infringement allegations, but denied discovery relating to damages. Id. at (Dkt. No. 21 at 7-8). This denial was based on two factors: (1) the Mannheim Court had not yet ruled on Lufthansa's request for AES production of sales-related data, and (2) the German action's damage phase-bifurcated from the infringement phase-had not yet begun. Id.

         In February 2016, the German trial court (“the Mannheim court”) found AES had infringed Lufthansa's patent and rejected AES's infringement defenses. (Dkt. No. 1 at 3.) An appellate Court affirmed this decision and denied certification of further appeal. (Id.) AES filed a petition to the German Federal Supreme Court seeking leave to appeal licensing issues; the petition is currently pending. (Id.) The damages determination has not been stayed pending resolution of AES' petition. (Id.)

         Panasonic, an American corporation, is an AES customer that incorporates AES 110 V, in-seat power systems into its in-flight entertainment units. (Dkt. No. 1 at 5.) AES delivers its power systems to Panasonic's facility in Bothell, Washington, where Panasonic incorporates them into in-flight entertainment units, many of which are installed on Airbus aircraft in Europe. (Id.) AES also delivers power systems directly to Panasonic in Germany. (Dkt. No. 1 at 23.)

         Lufthansa's present section 1782 petition seeks discovery from Panasonic's facility in Bothell for use in the damages stage of the German litigation and in contemplated infringement actions in France, Spain, the United Kingdom, and Japan. (Id. at 3-4.) The Court has granted AES's status as an intervenor in this action. (Dkt. No. 34.) AES provided briefing in opposition to Lufthansa's petition.

         II. DISCUSSION

         A. Section 1792 Statutory Requirements

         AA party to a foreign proceeding may seek discovery in the United States pursuant to 28 U.S.C. section 1782. This statute provides that a federal district court “may order” a person residing or “found” in the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person.” 28 U.S.C. § 1782(a).The “proceeding” for which section 1782 discovery is sought “must be within reasonable contemplation, but need not be ‘pending' or ‘imminent.'” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 243 (2004).

         Here, the basic requirements of the statute are met. First, Panasonic is based in this district, and the parties appear to agree that a substantial number of the requested documents are located in this district. Second, the petition relates to Lufthansa's Mannheim action and contemplated proceedings in other foreign tribunals. Panasonic argues that Lufthansa's “contemplated proceedings” are speculative. (Dkt. No. 35 at 4.) But the Court finds them “within reasonable contemplation.” After obtaining a favorable judgment in Germany, it is reasonable that Lufthansa would explore actions based on the same or similar patents in other countries. Finally, Lufthansa is an “interested person” for the purposes of the statute. See Id. at 256 (“No doubt litigants are included among, and may be the most common example of, the ‘interested person[s]' who may invoke § 1782.”).

         B. Discretionary Factors

         A district court is not required to grant a discovery application under section 1782 simply because it has the authority to do so. Intel Corp., 542 U.S. at 264. Once the statutory requirements are met, district courts have discretion to determine whether, and to what extent, to order a request for assistance under section 1782. Four Pillars Enterprises Co., Ltd. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir. 2002). If the district court permits discovery under the statute, it “may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country, ” for taking testimony or producing documents. 28 U.S.C § 1782(a).

         In Intel, the Supreme Court provided four factors for district courts to consider in ruling on § 1782 requests: (1) whether the person from whom discovery is sought is a participant in the foreign proceeding; (2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”; (3) whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions” or policies of a foreign country; and (4) whether the requests are unduly burdensome or intrusive. 542 U.S. at 264-65.

         1. Participation in the ...


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