Saint-Gobain Adfors S.A.S. v. 3M Company
ORDER denying 1 Application for Discovery for Use in Foreign Proceeding. See Order for details. (Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 10/16/2020.(BJP)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Saint-Gobain Adfors S.A.S.,
This matter is before the Court on the application of Saint-Gobain Adfors S.A.S.
(“Saint-Gobain”) to take discovery in aid of a foreign proceeding pursuant to 28 U.S.C.
§ 1782. [ECF No. 1.] Saint-Gobain is the plaintiff in a lawsuit pending in the United
Kingdom. In the UK proceedings, Saint-Gobain seeks to invalidate a European patent held
by Respondent 3M Company’s (“3M”) wholly-owned subsidiary, 3M Innovative Properties
Company (“3M IPC”). In its § 1782 petition, Saint-Gobain seeks permission to serve a
subpoena on 3M to obtain evidence for use in the UK proceedings. For the reasons that
follow, Saint-Gobain’s application is denied.
Saint-Gobain and 3M compete in the abrasive-materials industry. 3M IPC is an
intellectual property holding company and shares physical space in St. Paul with its corporate
parent, 3M. [Erickson Decl. ¶ 4, ECF No. 26.] Until 2012, 3M held a United States Patent
for abrasive particles, also known as the “Rowenhorst Patent.” [Wilson Decl., Exs. C (U.S.
Patent No. 5,366,523) & D (Reissue Patent No. 35,570), ECF No. 4.] 3M IPC currently
holds a European patent—EP2373755B1 (“EP-755”)—covering dish-shaped abrasive
particles. [Id., Ex. B.] 3M asserts that EP-755 builds on some of the earlier discoveries
disclosed in the Rowenhorst Patent. [Id., Ex. B at ¶ 0003.] According to 3M, EP-755 reflects
more recent innovations regarding the abrasive qualities of particles with concave, rather
than flat, surfaces. [Id., Ex. B at ¶ 0004.]
Saint-Gobain recently filed a lawsuit in the High Court of Justice, Business and
Property Courts of England and Wales, seeking to invalidate EP 755. [Wilson Decl., Ex. A.]
Essentially, Saint-Gobain seeks to persuade the UK Court that EP 755 should not have been
issued because it is an improper attempt to extend the Rowenhorst Patent, it does not
disclose a novel invention, and it lacked a sufficient explanation for someone skilled in the
field to understand and work with the alleged invention. [Wilson Decl. ¶¶ 11–14.]
The day after Saint-Gobain filed the UK lawsuit, it filed its § 1782 petition in this
Court seeking discovery from 3M. [Wilson Decl., Ex. A; Pet., ECF No. 1.] 3M is not a party
to the UK proceedings, it has agreed to be bound by any order regarding discovery issued by
the UK Court as though it were a party. [3M’s Resp. at 1, ECF No. 24; see also Reichel Decl.,
Ex. 1 & Ex. 2 at 1, ECF No. 25; Erickson Decl. ¶ 8.] 3M will also provide documents and
other materials to 3M IPC for inspection and copying if 3M IPC asks for that information.
[Erickson Decl. ¶ 7.]
Although § 1782 proceedings are often handled ex parte in the first instance, with a
subpoena respondent later raising any disputes by filing a motion to quash, Saint-Gobain
provided notice of its petition ahead of time to promote a more efficient resolution of their
disagreements. [Saint-Gobain Mem. at 1, ECF No. 3.] In its opposition, 3M raises concerns
regarding the scope of Saint-Gobain’s subpoena, which seeks evidentiary materials related to
the Rowenhorst Patent and EP-755 in seven requests for production spanning three pages.
[3M’s Resp., ECF No. 24; Subpoena, ECF No. 1-1.] The evidence sought by Saint-Gobain
includes: particle samples; technical drawings, specifications, and inventor notebooks; sales
and use documents; and manufacturing and testing documentation. 3M notes that some of
these documents are many years old, are not relevant to the questions before the UK court
in the invalidity litigation, may implicate material protected by the attorney-client privilege,
and would require disclosure of closely guarded trade secrets. [See generally Erickson Decl.
Under 28 U.S.C. § 1782, a federal court may order a person residing within its district
to produce documents or other items for use in a proceeding in a foreign tribunal. To obtain
an order authorizing discovery under § 1782, four statutory elements must be satisfied:
1) the person from whom discovery is sought “resides or is found” in the
district where the court sits; 2) the request seeks evidence ... “for use in a
proceeding in a foreign or international tribunal”; 3) the request is made ... by
“any interested person”; and 4) the material sought is not protected by “any
legally applicable privilege.”
In re Schlich, 893 F.3d 40, 46 (1st Cir. 2018). “The statute authorizes, but does not require, a
federal district court to provide assistance” to discovery in connection with the foreign
proceeding. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 255 (2004). Even when the
statutory elements are satisfied, a court should consider additional factors to determine
whether to authorize a request for discovery. Andover Healthcare, Inc. v. 3M Co., Civil No. 14–
mc–44 (SRN/JJK), 2014 WL 4978476 (D. Minn. Oct. 6, 2014), aff’d 817 F.3d 621 (8th Cir.
2016); see also Akebia Therapeutics, Inc. v. Fibrogen, Inc., 793 F.3d 1108, 1112 (9th Cir. 2015)
(noting that the factors set forth in Intel are not an exclusive list). The non-exhaustive factors
identified by the Supreme Court include:
(1) the connection of the person from whom discovery is sought to the
foreign proceeding; (2) the nature of the foreign tribunal, the character of the
proceedings, and the receptivity of the foreign entity to assistance; (3) whether
the request is an attempt to circumvent foreign restrictions or policies; and
(4) whether the request is “unduly intrusive or burdensome.”
Andover, 2014 WL 4978476 (citing Intel, 542 U.S. at 264–65). Courts apply the factors
flexibly, as they involve similar concerns; none of the factors, standing alone, categorically
requires a request for discovery to be allowed or rejected. In re Action & Prot. Found., No. C
14-80076 MISC EMC (LB), 2014 WL 2795832, at *5 (N.D. Cal. June 19, 2014) (“The Intel
factors involve overlapping considerations, are considered collectively by the court in
exercising its discretion, and are not stand-alone categorical imperatives.”).
As explained below, because § 1782’s statutory factors are met, the Court has the
authority to allow Saint-Gobain to pursue discovery from 3M. However, applying the Intel
factors to the unique circumstances of this case, the Court concludes that Saint-Gobain’s
application should be denied.
There is no dispute in this case that the statutory factors have been established. 3M
resides in the District of Minnesota, Saint-Gobain’s petition seeks evidence for use in a
proceeding in a foreign tribunal, and because it is the plaintiff in the UK proceedings, SaintGobain is an interested person within the meaning of § 1782. Although 3M suggests that
some of the requests in Saint-Gobain’s proffered subpoena could implicate information
protected by the attorney-client privilege, and § 1782 contains express language excluding
such material from its reach, 3M does not claim that the subpoena only requests privileged
information. [3M’s Resp. at 7–8 (suggesting that a subset of the information sought in
Requests 6 and 7 are protected by attorney-client privilege or the work-product doctrine),
ECF No. 24.]
Although these statutory factors must be met before a § 1782 petition could be
granted, satisfying them does not entitle a petitioner to obtain discovery through a subpoena.
Intel, 542 U.S. at 264 (“[A] district court is not required to grant a § 1782(a) discovery
application simply because it has the authority to do so.”). In determining whether to allow
discovery here, the Court considers the Intel factors and the unique circumstances of this
case. For several reasons, the Court finds that the considerations set forth in Intel and its
progeny weigh against granting a § 1782 subpoena.
First, the Court finds that 3M’s connection to the foreign proceeding weighs
significantly against Saint-Gobain’s request. Andover, 2014 WL 4978476 (noting that a court
should consider the subpoena’s target’s connection to the foreign proceeding). In Intel, the
Court noted that when the person from whom discovery is sought is a party to the foreign
proceeding, the need for discovery under § 1782 is diminished. 542 U.S. at 264. The
Supreme Court also considered it relevant that a nonparticipant in a foreign proceeding
“may be outside the foreign tribunal’s jurisdictional reach; hence, their evidence, available in
the United States, may be unobtainable absent § 1782(a) aid.” Id.
Here, there is no indication that the evidence 3M may possess would be unobtainable
by Saint-Gobain absent § 1782 aid. Although not a party to the UK proceedings, 3M has a
strong connection to Saint-Gobain’s invalidity case. 3M is the parent company of 3M IPC,
the two companies share a campus in St. Paul, and 3M received Saint-Gobain’s discovery
application before 3M IPC was even served with the UK pleadings. 3M has already agreed to
voluntarily provide some information to Saint-Gobain in connection with the UK
proceedings, subject to confidentiality protections that the UK Court deems appropriate.
[Erickson Decl. ¶¶ 9–10; Reichel Decl., Ex. 1.] And 3M has agreed to subject itself to the
authority of that court during the discovery process, as though it were itself a party. Pursuant
to its representation before this Court and to Saint-Gobain, 3M agrees to be bound by the
UK Court’s delineation of relevance and proportionality.
This is a situation in which 3M’s information is not beyond the foreign tribunal’s
jurisdictional reach. 3M’s representation that it will abide by any discovery order issued by
the UK Court means that Saint-Gobain will not be stuck without the evidence it needs.
Moreover, the judicial authority that is most familiar with the discovery needs of the UK
proceedings, the UK Court itself, will be able to draw appropriate lines regarding the
information Saint-Gobain needs to investigate and litigate its case. Other cases with
comparable facts have similarly found that the first Intel factor weighs against a § 1782
discovery request when the foreign jurisdiction can access the information at issue. See In re
Appl. Pursuant to 28 U.S.C. § 1782 of Michael Page do Brasil Ltda., No. CV 1704269 (KM), 2018
WL 7018716, at *4 (D.N.J. Jan. 19, 2018), R&R adopted, No. CV 17-4269-KM-JBC, 2019
WL 168828 (D.N.J. Jan. 10, 2019) (focusing on “whether the material is obtainable through
the foreign proceeding” rather than on the identity of the “person” from whom the
discovery is sought); see also In re Judicial Assistance Pursuant to 28 U.S.C. 7182 by Macquarie
Bank Ltd., No. 2:14-CV-00797-GMN, 2015 WL 3439103, at *6–7 (D. Nev. May 28, 2015)
(noting the cooperation between the party to the foreign proceedings and the respondent to
the § 1782 application).
Saint-Gobain argues that because 3M IPC, and not 3M itself, is the party to the UK
proceedings, the first Intel factor supports its application, focusing on the fact that they are
not the same legal entity. Some cases in this area have noted the legal distinctions between
corporate parents and their subsidiaries and found separate corporate identities significant
when examining the discovery target’s relationship to the foreign proceeding. See, e.g., In re
Barnwell Enters., Ltd., 265 F. Supp. 3d 1, 10 (D.D.C. 2017) (noting that a corporate parent and
its subsidiary are “distinct legal entities” in determining that the first factor supported a
§ 1782 discovery to the corporate parent). However, such decisions are readily
distinguishable from the unique situation before this Court, which involves a promise of
cooperation between the corporate parent and its subsidiary regarding discovery. See id.
(suggesting that there was no “reason to believe … that evidence in [the corporate parent’s]
possession is obtainable in the [foreign] proceedings … absent a section 1782 request.”); In
re Order for Labor Court of Brazil, 466 F. Supp. 2d 1020, 1031 (N.D. Ill. 2006) (rejecting
corporate parent’s argument that it should be considered a “participant” in Brazilian
litigation against its subsidiary where it failed to show that the foreign court could order it to
respond to discovery). And, in fact, the case law considering corporate parents and
subsidiaries does not uniformly consider companies’ distinct legal status to weigh in favor of
granting an interested party’s petition. See, e.g., Michael Page, 2018 WL 7018716, at *4 (“This
factor militates against allowing § 1782 discovery when the petitioner effectively seeks
discovery from a participant in the foreign tribunal even though it is seeking discovery from
a related, but technically distinct entity.”) (quoting In re Judicial Assistance Pursuant to 28 U.S.C.
7182 by Macquarie Bank Ltd., No. 2:14-CV-00797-GMN, 2015 WL 3439103, at *6 (D. Nev.
May 28, 2015), and citing other cases). Under these circumstances, the corporate distinction
between 3M and its subsidiary does not tip the scales on the first Intel factor.
Although the first Intel factor is perhaps the most critical in this case, the Court finds
that the remaining three Intel factors do not weigh in Saint-Gobain’s favor. See In re Action &
Prot. Found., No. C 14-80076 MISC EMC (LB), 2014 U.S. Dist. LEXIS 84333, at *14 (N.D.
Cal. June 19, 2014) (“The Intel factors involve overlapping considerations, are considered
collectively by the court in exercising its discretion, and are not stand-alone categorical
imperatives.”). The inquiries posed by the second, third, and fourth Intel factors largely
converge into the following conclusions: (1) nothing in the record suggests that SaintGobain will be unable to litigate its case if discovery is managed by the UK Court and its
§ 1782 request is denied; and (2) it would be more efficient for the UK Court to make the
discovery- and case-management decisions that will lead to a resolution of the parties’
dispute over the validity of EP 755.
Under the second Intel factor, the Court considers the nature of the foreign tribunal,
the character of the proceedings, and the receptivity of the foreign court to receiving
assistance. See Andover, 2014 WL 4978476 (discussing the second Intel factor). The parties
have submitted competing declarations regarding the intricacies of the discovery law
applicable in the foreign court. And neither side’s declaration suggests that the UK Court
would refuse to consider information obtained from 3M pursuant to a § 1782 request.
[Wilson Decl. ¶¶ 26–42; Ashby Decl. ¶¶ 26–45.] Although that fact does not itself weigh
against Saint-Gobain’s request, this does not end the inquiry. See In re Application of Gilead
Pharmasset LLC, C.A. No. 14-mc-243 (GMS), 2015 WL 1903957, at *3 (D. Del. Apr. 14,
2015) (finding the respondent did not meet its burden to show that a foreign court would be
unreceptive to § 1782 judicial assistance, but denying the petition for other reasons).
Here, the parties’ declarations also indicate that documents the UK Court deems
relevant and proportional to the needs of the invalidity case can, indeed, be obtained from
3M as part of those proceedings. This is especially true given 3M’s willingness to cooperate
with any discovery orders directing 3M IPC to provide information as though 3M itself were
a party to the case. Indeed, the parties’ evidence shows that the UK Court has the ability to
reach information within 3M IPC’s “control,” which includes consideration of whether a
party in the UK Court can access and inspect information that is possessed by a nonparticipant. [Compare Ashby Decl. ¶ 26–29 (discussing the UK Court’s ability to reach
documents within 3M IPC’s control and analyzing a UK legal decision regarding the same),
with Wilson Decl. ¶ 27 (noting that the UK Court may consider documents to be within a
party’s “control” where it has the consent of a third party to inspect documents and take
copies).] Contrary to Saint-Gobain’s contention that there is no evidence to suggest that
3M’s documents may be treated as within 3M IPC’s “control” for purposes of the UK
proceedings, 3M has agreed to place its information squarely within its subsidiary’s reach.
The analysis of this factor also cannot overlook that the United Kingdom’s courts are
sophisticated tribunals that are entirely capable of managing the propriety of discovery
requests and facilitating the exchange of information necessary for their own litigation. SaintGobain’s apparent preference for American-style discovery does not convince this Court
that it should make its own determinations about what information will be useful in the
foreign lawsuit. In short, the UK Court is in a better position to determine the proper scope
of discovery in Saint-Gobain’s invalidity case, and under the unique facts of this case,
nothing prevents it from doing so.
The same result is required when the focus is on the “character” of the litigation
between Saint-Gobain and 3M IPC and the receptivity of the UK Court to the evidence
Saint-Gobain seeks from 3M in its § 1782 application. Although the validity of U.S. patents
is frequently litigated in federal court and there are similarities between the American and the
European patent systems, patent litigation is among the more complex and nuanced areas of
law that courts anywhere face. Drawing discoverability lines based on relevance and
proportionality in such cases is most efficiently accomplished where a court has an intimate
familiarity with and control over the proceedings, and an understanding of the relevant legal
standards. It would be inefficient for this Court to attempt to define the parameters of
discovery related to a case challenging the validity of a European patent given this Court’s
lack of comparable familiarity with the applicable patent laws and the parties’ competing
views regarding the proper scope of discovery. Courts are, indeed, cautioned against
“speculative forays into legal territories unfamiliar to federal judges” when assessing § 1782
applications. Euromepa, S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1099 (2d Cir. 1995). Here, the
UK Court is certainly better equipped to evaluate the proper scope of discovery regarding
Saint-Gobain’s challenge to EP-755’s validity. It would similarly be inefficient to allow SaintGobain to serve its subpoena and then later attempt to resolve the parties’ disputes through
a motion to quash that 3M would presumably be entitled to pursue.1
These observations apply with equal or greater force to the fourth Intel factor, which
focuses on whether the discovery sought is unduly intrusive or burdensome. Saint-Gobain’s
proposed subpoena to 3M is, on its face, expansive. It seeks information that is both
intrusive and will be burdensome for 3M to collect. The subpoena includes no date
limitations and the information concerning the Rowenhorst Patent goes back many years,
During oral argument, Saint-Gobain asserted that allowing it to serve the subpoena
on 3M would not necessarily subject 3M to any significant burden because counsel for the
parties could appropriately narrow the scope of the subpoena through the familiar meet-andconfer process typically engaged in under the Federal Rules of Civil Procedure. Saint-Gobain
suggested that such a collaborative process would be unheard of among attorneys in UK
litigation. But nothing in the record suggests that parties to a UK lawsuit are prohibited from
working cooperatively on discovery issues. 3M has already exhibited a willingness to work
cooperatively with Saint-Gobain and promised to provide certain requested information
subject to reasonable confidentiality provisions to be established by the UK Court.
Moreover, at least with respect to the service of subpoenas under Fed. R. Civ. P. 45(d)(1),
“[a] party or attorney responsible for issuing and serving a subpoena must take reasonable
steps to avoid imposing undue burden or expense on a person subject to the subpoena.”
Thus, the subpoena itself should not function as merely the first step in a negotiation, but a
targeted attempt to get the information that is truly needed from a nonparty.
which will likely make it challenging to collect. It is difficult to fathom that the full universe
of information Saint-Gobain seeks in the subpoena would be necessary to proving its
invalidity claims in the UK proceedings. Saint-Gobain’s requests also implicate 3M’s
concerns regarding commercially sensitive business information and even its trade secrets.
[Erickson Decl. ¶¶ 16–20.] Whether the intrusiveness and burdens imposed by the subpoena
are truly undue is a decision that is better left to the UK Court, as is the management of the
confidentiality concerns at play. There is no question that the sometimes vexing and always
case-specific considerations of relevance and proportionality are among the determinations
this Court frequently makes. However, Saint-Gobain does nothing to demonstrate that the
UK Court is unable to draw the appropriate lines in this case. The parties’ views regarding
the nuances of UK discovery policies and European patent law will be better addressed by
the court that is more familiar with those issues.
Finally, the third Intel factor—whether the request is an attempt to circumvent
restrictions on discovery imposed by foreign policies or decisions—does not weigh in SaintGobain’s favor. Saint-Gobain, relying on In re Proctor & Gamble, 334 F. Supp. 2d 1112 (E.D.
Wis. 2004), argues that the fact that the discovery sought might not be available in the
foreign jurisdiction cannot be a reason to deny a § 1782 request. [See Saint-Gobain Reply at
12–13.] Indeed, the Proctor & Gamble court suggested that the Intel Court had reached the
same conclusion. 334 F. Supp. 2d at 1115–16 (“However, in Intel, the Supreme Court
rejected a categorical foreign discoverability requirement; thus, the mere fact that P&G seeks
discovery that is unavailable under foreign law is not a basis for denying its application.”)
(citing Intel, 542 U.S. at 259–63). However, this Court disagrees with the Proctor & Gamble
court’s characterization of Intel on this point. While it is clear that the Intel Court said that
foreign unavailability should not be treated as a categorical basis to reject a request under
§ 1782, the Court recognized that concerns raised by non-discoverability of evidence in the
foreign forum, including considerations of “comity and parity,” could be “important as
touchstones for a district court’s exercise of discretion in particular cases….” Intel, 542 U.S.
at 261; see also id. at 264 (“Further, the grounds Intel urged for categorical limitations on
§ 1782(a)’s scope may be relevant in determining whether a discovery order should be
granted in a particular case.”). The fact that Saint-Gobain may be attempting to obtain here
something that it could not obtain through discovery in the UK litigation is certainly a
relevant consideration that cuts against its § 1782 petition.
In this case, Saint-Gobain’s nearly immediate attempt to obtain § 1782 discovery
from 3M before engaging the discovery process available in the UK proceedings suggests
that it is trying to obtain a greater scope of discovery here than would be permitted by the
UK Court. Saint-Gobain is correct that it is not required to show that it has exhausted its
efforts to obtain the discovery in the foreign tribunal prior to applying for discovery under
section 1782. See Gov’t of Ghana v. ProEnergy Servs., LLC, 677 F.3d 340, 345 (8th Cir. 2012)
(“Ghana is correct that there is no exhaustion requirement under § 1782 that would require
it to seek discovery of the documents in the foreign forum before asking for the assistance
of a district court.”) (citing In re Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997)). Nor is
Saint-Gobain required to show that the information it seeks is, in fact, discoverable under
the laws of the foreign jurisdiction to properly resort to the statute. See Intel, 542 U.S. at 260
(finding that “nothing in the text of § 1782 limits a district court’s production-order
authority to materials that could be discovered in the foreign jurisdiction if the materials
were located there”). However, Saint-Gobain’s rush to file its petition in this Court supports
an inference that it is attempting to obtain information here that is broader than that truly
needed to pursue its UK lawsuit. See In re Appl. of Gilead Pharmasset LLC, C.A. No. 14-mc-243
(GMS), 2015 WL 1903957, at *12 (D. Del. Apr. 14, 2015) (“A perception that an applicant
has side-stepped less-than-favorable discovery rules by resorting immediately to § 1782 can
be a factor in a court’s analysis.”) (internal quotations omitted) (citing In re Cathode Ray Tube
(CRT) Antitrust Litig., No. C–07–5944–SC, 2013 WL 183944, at *3 (N.D. Cal. Jan. 17, 2013),
In re Application of Caratube Int’l Oil Co., LLP, 730 F.Supp.2d 101, 107–8 (D.D.C. 2010), and
In re IPC Do Nordeste, LTDA, No. 12–50624, 2012 WL 4448886, at *9 (E.D. Mich. Sept. 25,
2012)). Accordingly, the Court finds that the timing of Saint-Gobain’s request weighs against
its request for leave to serve the subpoena on 3M.
For these reasons, the Court denies Saint-Gobain’s request.
IT IS HEREBY ORDERED THAT Saint-Gobain’s petition to take discovery
pursuant to 28 USC 1782 is DENIED.
Date: October 16, 2020
United States Magistrate Judge
At oral argument, the Court inquired whether the parties believed this ruling should
be issued as a report and recommendation or as an order, and counsel candidly shared that
the answer to this issue is unclear. Indeed, Courts have not reached a consensus about the
issue. In re Ex Parte Application of Pro-Sys Consultants & Neil Godfrey, Applicants, No. CV 16MC-91016-PBS, 2016 WL 4154306, at *1 (D. Mass. Aug. 5, 2016) (noting the unsettled
nature of the question and citing competing cases). Having reviewed the relevant caselaw in
this area, the Court concludes that an application for discovery under § 1782 is not a
dispositive motion, even though its resolution brings to a close the entire issue in a
miscellaneous case. See In re Hulley Enterprises, Ltd., 358 F. Supp. 3d 331, 340–42 (S.D.N.Y.),
aff’d sub nom. In re Hulley Enterprises Ltd., 400 F. Supp. 3d 62 (S.D.N.Y. 2019) (analyzing the
relevant case law and concluding that “a motion seeking discovery as an aid to a later
adjudication by a court or tribunal is not a “dispositive” motion within the meaning of Rule
72—even if it is brought in a special proceeding whose only purpose is to obtain that
discovery”). However, the Court notes that this conclusion is not intended to foreclose the
parties from litigating the issue of the appropriate standard of review should objections to
this Order be filed with the District Court. The District Court, of course, will make its own
determination regarding the appropriate standard of review to be applied.
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