United States District Court, D. Connecticut
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
R. UNDERHILL, United States District Judge
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.
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.
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
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.
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.
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.
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).
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).
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).
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 ...