Heraeus Kulzer, GMBH v. Biomet, Inc.

2011 WL 198117 (7th Cir. 2011) (Posner, J.)

In part because of the Defendant’s refusal to cooperate, the Seventh Circuit Court of Appeals reversed the district court’s denial to compel discovery and ordered the matter returned "for consideration of discovery demands under Rule 26 and any other pertinent rules..." The case involved discovery in U.S. federal court for use in a foreign (German) court and, paraphrasing Judge Posner, pursuant to 28 U.S.C. Sec. 1782, a party to litigation in a foreign country can seek discovery related to that litigation in a federal district court and—at the court’s discretion—obtain as much discovery as it if it litigation had been brought in that court. Once a court determines that abuse of 1782 is nonexistent or at least unlikely (the judicial screen), discovery proceeds as governed by the Federal Rules of Civil Procedure. In analyzing the matter, the Court of Appeals determined that the district court had committed two errors: concluding that the Plaintiff was seeking to circumvent German law and flatly turning down the Plaintiff’s discovery request on the ground that compliance would be unduly burdensome. Regarding the first error, Judge Posner noted that nothing suggested the German court would not admit at least probative evidence obtained via US discovery. Turning to the second error, the Court of Appeals criticized the district court for refusing any and all discovery by stating, "If it’s asking for too much, the district court can and should cut down its request, but not to nothing, as it did. That was unreasonable, and therefore reversible." Adding fuel to this flame was the Defendant’s "stonewalling" or refusal to cooperate by not meeting with the Plaintiff to negotiate scope of discovery and by not presenting any evidence of burdens which the granting of the discovery request would have imposed. It should also be noted that this opinion referenced the Seventh Circuit Electronic Discovery Pilot Program as a proponent of cooperation in complex litigation.