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In re ex parte Application of China Petrochemical Development Corp.

United States District Court, D. Connecticut

March 14, 2018

IN RE EX PARTE APPLICATION OF CHINA PETROCHEMICAL DEVELOPMENT CORPORATION FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN FOREIGN PROCEEDINGS

          RULING AND ORDER

          STEFAN R. UNDERHILL, United States District Judge

         China Petrochemical Development Corporation (“CPDC”) seeks discovery from Dr. Anne K. Roby (“Dr. Roby”), a Senior Vice President of Praxair, alleging that the discovery is “for use” in three civil actions in the Taiwanese courts: (1) a temporary administrator proceeding, (2) a director injunction proceeding, and (3) a shareholder declaration proceeding. Dr. Roby filed a motion to quash a subpoena served on her and opposed the application for discovery, claiming that the discovery is not “for use” in any of the proceedings in Taiwan. For the reasons that follow, Dr. Roby's motion, Doc. No. 33, is granted and CPDC's application for discovery in aid of Taiwan litigation, Doc. No. 1, is denied.

         I. Background

         In 1998, CPDC entered into a joint venture agreement (“JV Agreement”) with Praxair. Pursuant to that agreement, CPDC and Praxair formed a joint venture company called Praxair Chemax Semiconductor Materials Company Limited (“PCSM”). Mem. Supp. Mot. Quash Subpoena, Doc. No. 33-2, at 3. On January 23, 2017, CPDC-alleging that Praxair had taken several actions that did not comply with the JV Agreement-initiated an arbitration proceeding against Praxair in Taipei, before the International Chamber of Commerce's International Court of Arbitration (the “ICC Arbitration”). See Id. at 4.

         The JV Agreement contained a binding arbitration clause, which provided that all disputes arising out of the Agreement must be settled by binding commercial arbitration in Taipei before the International Court of Arbitration. Id. In accordance with that clause, on August 28, 2017, I granted CPDC's ex parte application for discovery under 28 U.S.C. § 1782, and Rules 26, 30, and 45 of the Federal Rules of Civil Procedure. I ordered that all documents requested from Dr. Anne K. Roby (“Dr. Roby”), a Senior Vice President of Praxair who served as Vice Chairman of PCSM's board of directors until January 10, 2017, be produced within 30 days of service. On August 30, 2017, CPDC issued a subpoena on Dr. Roby, seeking documents and Dr. Roby's deposition. On October 5, 2017, Dr. Roby filed a motion to quash the subpoena in its entirety.

         On November 28, 2017, I granted Dr. Roby's motion to quash the subpoena, holding that the discovery sought was not “for use” in the ICC arbitration proceeding. See Order granting Motion to Quash Subpoena, Doc. No. 41. I requested additional briefing on “whether the discovery sought by the subpoena at issue is ‘for use' in the three civil actions currently pending before the Taiwanese courts.” Id. at 3, 5. Those three civil actions include: (1) a temporary administrator proceeding, (2) a director injunction proceeding, and (3) a shareholder declaration proceeding.

         On December 22, 2017, CPDC filed a memorandum of law in support of its application for discovery in aid of Taiwan litigation. On January 11, 2018, Dr. Roby filed an opposition to CPDC's application for discovery. On January 25, 2018, CPDC filed a reply memorandum in further support of its application for discovery. On March 3, 2018, Dr. Roby filed a supplemental brief opposing the application for discovery. On March 5, 2018, CPDC filed a response letter to Dr. Roby's supplemental opposition brief.

         II. Legal Standard

         Pursuant to 28 U.S.C. § 1782(a), “[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” Such an order “may be made . . . upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced before a person appointed by the court.” Id.

         I am authorized to grant an application under section 1782 if the following three statutory requirements are met: (1) the person from whom discovery is sought lives in, or is found, within the district; (2) the discovery is for use in a proceeding before an international or foreign tribunal; and (3) the application is made by a foreign or international tribunal or any interested person. In re Esses, 101 F.3d 873, 875 (2d Cir. 1996).

         Rule 26(c) of the Federal Rules of Civil Procedure authorizes a district court to modify or quash a subpoena “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” In re Edelman, 295 F.3d 171, 178 (2d Cir. 2002).

         III. Discussion

         Because Dr. Roby concedes the first and third statutory requirements of Section 1782, the application for discovery in Taiwan litigation presents only the question whether the discovery sought by the subpoena at issue is “for use” in the three civil actions currently pending before the Taiwanese courts. CPDC Mem. Law Supp. App. Discovery, Doc. No. 45, at 5; see also Dr. Roby Mem. of Law in Opp. Application for Discovery, Doc. No. 47, at 1. I find that the discovery CPDC seeks is not “for use” in any of the three Taiwan proceedings, and therefore need not consider the four discretionary factors outlined by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. 542 U.S. 241, 264 (2004).

         In defining the “for use” requirement, the Second Circuit has focused “on the practical ability of [a Section 1782 applicant] to place a beneficial document-or the information it contains-before a foreign tribunal.” In re Accent Delight Int'l Ltd., 869 F.3d 121, 131 (2d Cir. 2017) (emphasis in original). A Section 1782 applicant must be in a “position to have the [tribunals] consider” the evidence that the applicant plans to put forth, and must have a “means of injecting the evidence into the proceeding.” Id. (internal citations omitted). A mere showing that discovery sought would be “useful” to applicants, without an ability to introduce the information into evidence in a foreign proceeding, is not enough. Id. (internal citation omitted). An applicant need not show, however, that he can only prevail if he ...


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