The Ninth Circuit held that a discovery order under 28 U.S.C. § 1782 was not appealable until the district court resolved any objections to the discovery request.
November 7, 2024
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