In Re: Ex Parte Application of China Petrochemical Development Corporation for Order Pursuant to 28:1782 to Conduct Discovery for Use in Foreign Proceedings

Filing 54

ORDER denying 1 EXPARTE MOTION filed by China Petrochemical Development Corporation, granting 33 SEALED MOTION To Quash Subpoena Issued Pursuant To 28 U.S.C. § 1782 filed by Anne Roby. Signed by Judge Stefan R. Underhill on 3/14/2018. (Pincus, A)

UNITED STATES DISTRICT COURT
DISTRICT OF 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

Case No. 3:17-cv-02138 (SRU)

RULING AND ORDER

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

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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
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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 obtains the sought-after
discovery. Mees v. Buiter, 793 F.3d 291, 298 (2d Cir. 2015). Instead, he must only show that the
sought-after discovery “will be employed with some advantage or serve some use in the
proceeding.” Id.
A. The Temporary Administrator Proceeding
The Temporary Administrator Proceeding was dismissed by the Taiwan High Court in a
final decision on November 8, 2017. Dr. Roby Mem. of Law in Opp. Application for Discovery,
Doc. No. 47, at 4; CPDC Mem. Law Supp. App. Discovery, Doc. No. 45, at 3. CPDC contends
that the discovery it seeks from Dr. Roby is “for use” in the Temporary Administrator
Proceeding because under Taiwanese law, a party may be granted a rehearing in a case that has
been resolved within five years of the resolution of the case if that party can present new
evidence supporting its petition. Third Decl. Edward Chen, Doc. No. 46, at ¶ 9 (referring to
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Taiwan Code of Civ. Proc., art. 496, para. 1, subpara. 13). Dr. Roby argues, however, that under
that same Taiwanese law, a party can be granted a rehearing only where “newly-discovered,
tangible evidence will result in a more favorable decision to such party.” Supp. Decl. Hsin-Hung
Chen, Doc. No. 47, at ¶ 4 (citing Taiwan Code of Civ. Proc., art. 496, para. 1, subpara. 13.)
(internal quotations omitted).
The Second Circuit has held that Section 1782 does not require a district court to
determine whether information sought is admissible in foreign proceedings, and that questions of
admissibility are for foreign courts to decide. Brandi-Dohrn v. IKB Deutsche Industriebank AG,
673 F.3d 76, 82 (2d Cir. 2012). At the same time, the Second Circuit has also focused on the
“practical ability of an 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 at 131 (emphasis in original).
A showing that sought after discovery would be “useful” to a particular applicant, without that
applicant’s ability to introduce the information into evidence in a foreign proceeding, is not
enough. Id.
Here, the Temporary Administrator Proceeding was dismissed because the Taiwan High
Court held that CPDC’s claim involved a “dispute over the company’s business operations.”
Supp. Decl. Hsin-Hung Chen, Doc. No. 47, at ¶ 4. CPDC argues that that “Dr. Roby’s testimony
will be an essential (perhaps the only) way for CPDC to test the allegation” that the supply
agreement was an oral agreement, and that Dr. Roby “undoubtedly possesses information critical
to the Temporary Administrator Proceeding.” CPDC Mem. Law Supp. App. Discovery, Doc.
No. 45, at 2.
Here, the claimed “newly-discovered, tangible evidence” will not “result in a more
favorable decision” for CPDC because the additional, sought-after testimony from Dr. Roby

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would not change the categorization of the dispute by the Taiwan High Court. Supp. Decl. HsinHung Chen, Doc. No. 47, at ¶ 4 (citing Taiwan Code of Civ. Proc., art. 496, para. 1, subpara. 13).
I need not decide whether the evidence would be admissible at a rehearing, because the soughtafter evidence would not open the door for CPDC to initiate a rehearing where the evidence
might be admitted.
Therefore, even if Dr. Roby possesses “useful” information regarding the Temporary
Administrator Proceeding, and even if deposing her is the only way for CPDC to obtain the
information regarding its allegations about an oral Praxair-PCSM Supply Agreement, the
Taiwanese High Court would not allow rehearing on the issue based on the information Dr. Roby
could provide in her deposition. See CPDC Mem. Law Supp. App. Discovery, Doc. No. 45, at 2.
Because the deposition testimony would not be introduced into evidence in the Temporary
Administrator Proceeding, the sought-after discovery is not “for use” in that proceeding.
B. The Director Injunction Proceeding
The Director Injunction Proceeding is currently pending before the Taiwan Supreme
Court. CPDC Mem. Law Supp. App. Discovery, Doc. No. 45, at 4, 7; Dr. Roby Mem. of Law in
Opp. Application for Discovery, Doc. No. 47, at 7. CPDC contends that Article 476 of the
Taiwan Code of Civil Procedure “would permit” the Taiwan Supreme Court to “take into
account and determine whether” the lower court “erred in not reserving its judgment until receipt
of the ICC evidence, as it is a violation of litigation procedure for the court to decide the matter
without taking into account all material evidence.” Second Decl. of Edward Chen, Doc. No. 383, at ¶ 13. Dr. Roby contends that Article 476 pertains to “errors of law, taking new evidence
into account only when it relates to a procedural error at the prior court.” Dr. Roby Mem. of Law
in Opp. Application for Discovery, Doc. No. 47, at 7.
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Taiwan Code of Civil Procedure Article 476 states that the Taiwan Supreme Court may
consider facts alleged regarding violations of provisions regulating litigation procedure. See
Supp. H. Chen. Decl., Doc. No. 47-1, at ¶¶ 8-9 (quoting Article 476 of the Taiwan Code of Civil
Procedure). Otherwise, the Taiwan Supreme Court may only review “lower court decisions for
errors of law, taking new evidence into account only when it relates to a procedural error at the
lower level.” Id. at ¶ 8. Furthermore, the Taiwan Supreme Court has explained that “it is the
second instance court’s duty to conduct fact finding on the merits of the case, and it is the third
instance court’s duty to review to see whether the second instance court committed an error in
law when conducting such fact finding.” Id. at ¶ 10 (quoting Resolution of the 1990 1st Supreme
Court Civil Division Meeting, dated Mar. 6, 1990) (emphasis added).
Here, CPDC seeks testimony from Dr. Roby during the time that she “directed the
activities leading up to the special shareholders’ meeting” because she “undoubtedly has
information critical to CPDC’s ability to show that Praxair and PCSM engaged in a campaign to
exclude CPDC.” CPDC Mem. Law Supp. App. Discovery, Doc. No. 45, at 3. That information,
however, does not relate to a procedural error in the Director Injunction Proceeding, but instead
relates to the “merits of the case”, and thus the Taiwan Supreme Court cannot consider it on
appeal. See Supp. H. Chen. Decl., Doc. No. 47-1, at ¶ 8 (quoting Resolution of the 1990 1st
Supreme Court Civil Division Meeting, dated Mar. 6, 1990). Therefore, the information CPDC
seeks from Dr. Roby’s deposition testimony is not “for use” in the Director Injunction
Proceeding.
C. The Shareholder Declaration Proceeding
The Shareholder Declaration Proceeding is currently pending before the court of first
instance in Taiwan, and therefore CPDC may put forth new evidence in that proceeding. CPDC
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Mem. Law Supp. App. Discovery, Doc. No. 45, at 4. CPDC states that the subpoena it seeks
from Dr. Roby is “tailored to obtain…information” that is relevant to the Shareholder
Declaration Proceeding. Id. Dr. Roby frames the central issue in the Shareholder Declaration
Proceeding as “whether the procedure to call PCSM’s February 21, 2017 shareholders’ meeting
violated any law.” Supp. Decl. Hsin-Hung Chen, Doc. No. 47, at ¶ 12. Dr. Roby contends that
“the evidence CPDC asserts it seeks from Dr. Roby is immaterial” to the Shareholder
Declaration Proceeding, as evidenced by the fact that CPDC did not request evidence from Dr.
Roby in a recent hearing with the presiding judge in the Shareholder Declaration Proceeding. Dr.
Roby Mem. of Law in Opp. Application for Discovery, Doc. No. 47, at 9.
“The proper scope of . . . discovery sought under section 1782, like all federal discovery,
is governed by Federal Rule 26(b).” In re Application Pursuant to 28 U.S.C. Section 1782 of
Christen Sveas, 249 F.R.D. 96, 106 (S.D.N.Y. 2008) (“Sveas”) (internal citation omitted). Rule
26 provides that “[p]arties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1) (emphasis added). For
purposes of discovery, relevance as it relates to the subject matter of an action is broadly
construed “to encompass any matter that bears on, or that reasonably could lead to other matter
that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). The term “reasonably calculated” in Rule 26(b)(1) means
“any possibility” that the information sought may be relevant. Morse/Diesel, Inc. v. Fidelity and
Deposit Co. of Maryland, 122 F.R.D. 447, 449 (S.D.N.Y.1988) (quoting Fed. R. Civ. P.
26(b)(1)). Even where “relevance is in doubt” in a Section 1782 case, “the district court should
be permissive.” Sveas, 249 F.R.D. at 107. In addition, the Second Circuit has held that where
there are circumstances in which new evidence may be heard in a foreign proceeding, the “for

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use” requirement has been satisfied, “regardless of how narrow those circumstances might be.”
Brandi-Dohrn, 673 F.3d at 83.
CPDC seeks a declaration from the court in Taiwan that the “February 2017 special
shareholders’ resolutions are null and void, and that the election of directors and supervisors was
not valid.” CPDC Mem. Law Supp. App. Discovery, Doc. No. 45, at 4. CPDC argues that the
subpoena it has submitted to Dr. Roby is “tailored to obtain that information” and that because
she was the Praxair-appointed PCSM director “leading the charge on all pre-February 2017
initiatives,” Dr. Roby knows relevant information. Id. Dr. Roby contends that her deposition
testimony is irrelevant to the Shareholder Declaration Proceeding.
I find that the information CPDC seeks is not relevant to events that arose at the time Dr.
Roby was acting Vice-Chairman of PCSM. Although Dr. Roby was acting Vice-Chairman of
PCSM at the time the dispute arose between Praxair and CPDC regarding PCSM’s officers and
directors, the subpoena does not request, or indicate that CPDC is seeking, any documents
relating to the Shareholder Declaration Proceeding. CPDC Mem. Law Supp. App. Discovery,
Doc. No. 45, at 2; Subpoena of Dr. Roby, Exhibit 1. The only document request that discusses
any topic even remotely related to the Shareholder Declaration Proceeding is Number 5, “[a]ny
Documents and/or communications after August 27, 2012 concerning my nomination or
appointment of officers, directors, or supervisors for PCSM by either of Praxair or CPDC.” Id. at
6. Any information Dr. Roby may have, however, regarding “nomination or appointment of
officers, directors, or supervisors” will not shed light on the legality of the procedure to call
PCSM’s February 21, 2017 shareholders’ meeting. Therefore, Dr. Roby’s testimony is not
relevant to the Shareholder Declaration Proceeding, and thus, is also not “for use” in that
proceeding.

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IV. Conclusion
Dr. Roby’s Motion to Quash the Subpoena Issued Pursuant to 28 U.S.C. § 1782 (Doc.
No. 33) is granted. CPDC’s Application for Discovery in Aid of Taiwan Litigation (Doc No. 1)
is denied.
So ordered.
Dated at Bridgeport, Connecticut, this 14th day of March 2018.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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