How may terabytes in a cargo container?
How may terabytes in a cargo container?

Rulings on 28 U.S.C. § 1782

Since mid-July 2015, federal courts of appeals have decided at least five cases involving a federal statute that allows “any interested person” to apply for an order requiring a party “found” in a judicial district to produce discovery “for use” in a foreign proceeding. 28 U.S.C. § 1782(a). In this post, I will review the facts and holdings of the cases.

Second Circuit: Intent to bring Dutch defamation case satisfied “for use” requirement

Willem H. Buiter, the chief economist of Citigroup, accused Heleen Mees, a writer, of stalking him. Although Dutch by birth, both lived in New York. Buiter’s charges resulted in Mees’s arrest. A New York trial court dismissed the case against Mees after she completed counseling and complied with an order of protection for Buiter and his wife.

Mees filed a petition under section 1782 to obtain discovery from Buiter for use in drafting a defamation case against Buiter in The Netherlands. The district court denied the application on the ground that Mees did not need the discovery as she already had enough to plead her claim and intended to bring the case in any event.

The Second Circuit reversed. It held that Mees had shown she wanted the material “for use” in the foreign proceeding. Mees v. Buiter, No. 14-1866 (2d Cir. July 17, 2015).

Federal Circuit: Section 1782 may not apply to modification of protective orders, but courts should look to it for that purpose anyway

Nippon Steel & Sumitomo Metal brought a patent infringement case in the District of New Jersey. It also sued POSCO in Japan for theft of trade secrets.

After POSCO produced documents in the New Jersey patent case under a protective order, Nippon asked the district court to modify the protective order to allow it (Nippon) to use some of the documents in the Japanese proceeding. The district court granted the request but imposed conditions on what Nippon could do with the documents in the Japanese court.

The Federal Circuit granted POSCO’s mandamus petition. In re POSCO, No. 15-112 (Fed. Cir. July 22, 2015). The panel voted 2-1 to require district courts to apply the “Intel factors”, the Supreme Court outlined in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), in determining whether or not to modify protective orders for the purpose of allowing a party to use discovery material that it already has in an overseas proceeding.

The third judge concurred. He rejected the idea that section 1782 or the Intel factors should play any role where the party that wants to use material overseas already has it. But he did believe the district court erred by limiting what Nippon could do with the material in the foreign proceeding.

Eleventh Circuit: Petitioner may later use material section 1782 as she wishes

Helga Glock brought an action in the Northern District of Georgia to obtain documents from firearm maker Glock, Inc., for use in Austrian divorce proceedings with her husband, Gaston Glock. The company did not resist, but the district court did enter a protective order that limited use of the materials Helga obtained to matters that involved her as “a party”.

Helga later asked the court for permission to deploy the Glock, Inc., documents in a new case, this one an action under the Racketeer-Influenced and Corrupt Organizations Act. The district court denied the request. It read the protective order as incorporating section 1782 and ruled that the statute would bar a party from using in a domestic proceeding discovery material that the party had properly obtained under section 1782 for a foreign case.

The Eleventh Circuit reversed. It held that section 1782 places no restrictions on what a petitioner may do with discovery once it obtains the stuff. Glock v. Glock, Inc., No. 14-15701 (11th Cir. Aug. 17, 2015).

Second Circuit: Investors monitoring foreign proceedings failed to show “for use” or “interested person” status

Funds that Fortress Investment Group managed invested around $380 million in Saudi entities. After the Saudi firms defaulted, foreign proceedings sprouted in Saudi Arabia, Cayman Islands, and Bahrain. Fortress brought a case under section 1782 to get documents from KPMG and PricewaterhouseCoopers.

The district court denied the application. It ruled that Fortress had no role in the foreign proceedings and therefore could not show it needed the material “for use” in those proceedings. Nor did Fortress qualify as an “interested person” under the statute. The Second Circuit affirmed. Certain Funds v. KPMG, L.L.P., No. 14-2838 (2d Cir. Aug. 20, 2015).

Ninth Circuit: Patent contests in Europe and Japan meet “for use” element

Biopharmaceutical company Akebia brought proceedings to contest European and Japanese patents of biotechnology company FibroGen in Europe and Japan. Akebia sought document and deposition subpoenas under section 1782 from the Northern District of California. The district court granted the application.

The Ninth Circuit affirmed. Akebia Therapeutics, Inc. v. FibroGen, Inc., No. 15-15274 (9th Cir. July 16, 2015).

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.