in re: for the Issuance of a Subpoena Order Under 28 U.S.C.1782 to Exponent, Inc. dba Delaware Exponent, Inc. and Celina J. Mikolajczak, P.E. for the Production of Documents for Use in a Foreign Proceeding

Filing 8

ORDER DENYING APPLICATION FOR SECTION 1782 SUBPOENA TO EXPONENT IN SUPPORT OF DOMESTIC LITIGATION by Judge Paul S. Grewal denying 1 (psglc2, COURT STAFF) (Filed on 12/5/2013) (Additional attachment(s) added on 12/5/2013: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION

United States District Court
For the Northern District of California

10
11

IN RE APPLICATION OF M. HELEN
BERNSTEIN AND MICHAEL A. LEON,
Applicants.

12
13
14

)
)
)
)
)
)
)
)

Case No.: 13-mc-80270-LHK-PSG
ORDER DENYING APPLICATION
FOR SECTION 1782 SUBPOENA TO
EXPONENT IN SUPPORT OF
DOMESTIC LITIGATION
(Re: Docket No. 1)

M. Helen Bernstein and Michael A. Leon (collectively, “Applicants”) have applied to this

15
16

court for an order to obtain discovery pursuant to 28 U.S.C. § 1782(a). Applicants seek an order

17

authorizing a subpoena to Exponent, Inc. (“Exponent”), a resident of Menlo Park, California, for

18

documents related to three pending cases in the Northern District of California and the Northern

19

District of Illinois. 1 Specifically, Applicants request (1) reports by Exponent in connection with

20

the investigation of the “Boeing Pacific Scientific Meggitt Danaher Securaplane Dreamliner

21
22
23
24

lithium ion battery fire on November 7, 2006” in Tucson, Arizona and (2) related billing records. 2
Applicants claim that although the report was relied upon by an expert in the underlying cases, it
has not been produced despite its relevance. Applicants claim the document will establish that the

25
26
27
28

1

Pending cases include Leon v. Dunlop, Case No: 3:13-cv-1563-RS (N.D. Cal.) (ADA and
Section 1983 claims); Bernstein v. Apollo Group, Case No: 5:13-cv-01701 (N.D. Cal.)
(fraud claim); Leon v. Meggitt, Case No: 1:13-cv-01679 (N.D. Ill.) (employment retaliation claim).
2

See Docket No. 1, Ex. A.

1
Case No.: 13-mc-80270-LHK-PSG
ORDER GRANTING APPLICATION FOR SUBPOENA TO EXPONENT

1
2

Federal Aviation Administration (“FAA”), Department of Labor (“DOL”), and other authorities
were misled regarding the cause of the Boeing 787 lithium ion battery fires. 3

3

I. LEGAL STANDARDS

4

“A district court may grant an application pursuant to 28 U.S.C. § 1782 where (1) the

5
6
7
8
9

person from whom the discovery is sought resides or is found in the district of the district court to
which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal,
and (3) the application is made by a foreign or interna[tional] tribunal or any interested person.” 4
However, simply because a court has the authority under Section 1782 to grant an application does

United States District Court
For the Northern District of California

10

not mean that it is required to do so. 5 The Supreme Court has identified several factors that a court

11

should weigh before ruling on a Section 1782 request:

12

(1) whether the material sought is within the foreign tribunal’s jurisdictional reach
and thus accessible absent Section 1782 aid; (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 jurisdictional
assistance; (3) whether the Section 1782 request conceals an attempt to circumvent
foreign proof-gathering restrictions or other policies of a foreign country or the
United States; and (4) whether the subpoena contains unduly intrusive or
burdensome requests. 6

13
14
15
16

It is common for parties to request and obtain orders authorizing discovery ex parte. 7 Such

17
18

“ex parte applications are typically justified by the fact that the parties will be given adequate

19

notice of any discovery taken pursuant to the request and will then have the opportunity to move to

20

quash the discovery or to participate in it.” 8

21
22
3

23

See Docket No. 1.

4

24

In re Republic of Ecuador, Case No. 3:10-mc-80225-CRB-EMC, 2010 WL 3702427, at *2
(N.D. Cal. Sep. 15, 2010); see 28 U.S.C. § 1782(a).

25

5

See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004).

26

6

In re Republic of Ecuador, 2010 WL 3702427, at *2 (quoting Intel, 542 U.S. at 264-65).

27

7

See id.

28

8

Id. (citations omitted).

2
Case No.: 13-mc-80270-LHK-PSG
ORDER GRANTING APPLICATION FOR SUBPOENA TO EXPONENT