Finality in § 1782 Proceedings


November 7, 2024
By Bryan Lammon

In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of discovery. Until those issues were resolved, the discovery target could not appeal.

Simplifying a bit, § 1782 allows district courts to issue subpoenas for use in foreign proceedings. The foreign proceeding in CPC Patent involved a potential patent-infringement action in Germany. The district court determined that discovery was proper under § 1782 and permitted the applicant to serve the discovery target with a subpoena. But the discovery target objected to some of the requested discovery on confidentiality grounds. A few days later, the discovery target appealed from the § 1782 order.

Although most discovery orders are not immediately appealable, § 1782 proceedings are independent proceedings—the whole point of the suit is to obtain discovery. Most courts accordingly deem final a § 1782 order and allow appeals in once the district court has finally resolved the request.

The Ninth Circuit adheres to this general rule. But according to that court, the § 1782 order in CPC Patent was not yet final. Although the district court had determined that discovery was proper, that court had not yet definitively resolved the discovery dispute. That court still had to deal with the objections to disclosure. Until the district court did so, there was no final decision.

CPC Patent Technologies Pty Ltd. v. Apple Inc., 2024 WL 4560164 (9th Cir. Oct. 24, 2024), available at the Ninth Circuit and Westlaw

Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.

Learn More Contact

Related Posts


In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally allows privilege claimants to appeal from discovery […]

Continue reading....

In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents. The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand […]

Continue reading....

In In re Search Warrants Issued February 18, 2022, the Fourth Circuit dismissed an appeal that challenged the filter protocols for seized evidence. The district court had approved certain protocols to weed out potentially protected evidence. The district court later denied a privilege claimant’s motion seeking to alter those protocols. The Fourth Circuit held that […]

Continue reading....

In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal […]

Continue reading....

In In re Grand Jury 2021 Subpoenas, the Fourth Circuit joined several other circuits in holding that only non-parties can take Perlman appeals. I wrote about this issue a few years ago when the Second Circuit did the same. This cutting back on Perlman appeals is as wrong now as it was then.

Continue reading....

Recent Posts


In Diaz v. FCA US LLC, the Third Circuit split over whether a district court had resolved distinct claims for purposes of Federal Rule of Civil Procedure 54(b). The majority concluded that the district court had resolved only a distinct theory of recovery, not a distinct claim. Dissenting, Judge Phipps argued that claims are defined […]

Continue reading....

In Grippa v. Rubin, the Eleventh Circuit addressed the immediate appealability of Florida’s absolute and qualified litigation privileges. The court determined that the absolute privilege was immediately appealable via the collateral-order doctrine. But the qualified litigation privilege was not.

Continue reading....

Last month featured a Sixth Circuit debate over jurisdiction to review Brady issues in appeals from the denial of qualified immunity. There was also an especially odd Second Circuit decision in which the court exercised pendent appellate jurisdiction over a normally non-appealable issue even though the court lacked jurisdiction over any other issue. And there […]

Continue reading....

In two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.

Continue reading....

In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not […]

Continue reading....