09-2858 & 10-2639 Applications of Kulzer for Orders Compelling Discovery for Use in a Foreign Proceeding

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Civil Procedure
Discovery; foreign courts

Where a party made no showing that an application for discovery for use in a foreign proceeding was abusive, the application was improperly denied.

“The importance of American-style discovery to Heraeus’s ability to prove misappropriation of its trade secrets by Biomet is undeniable. But potential for abuse? We don’t see it. Heraeus cannot obtain the discovery it needs in the legal system in which it sued. And there is no indication that the German court in which Heraeus’s suit against Biomet is pending would refuse to admit evidence that Heraeus obtained through U.S. discovery and could not have obtained by utilizing the procedures of German law for evidence gathering; no indication that the German court is worried about being swamped by Heraeus’s submitting excessive discovery fruits to it; and no indication that the German court believes that Heraeus’s discovery requests if allowed would impose an undue burden on Biomet.”

Reversed and Remanded.

09-2858 & 10-2639 Applications of Kulzer for Orders Compelling Discovery for Use in a Foreign Proceeding

Appeals from the United States District Court for the Northern District of Indiana, Miller, J., Posner, J.

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