Heraeus Kulzer GmbH wins battle in Third Circuit over critical information

Client(s) Heraeus Kulzer GmbH

Jones Day successfully represented Heraeus Kulzer GmbH in an appeal to overturn the denial of Heraeus' petition for discovery in aid of foreign litigation. That petition, brought pursuant to 28 U.S.C. § 1782, sought critical evidence located in the files of a non-party U.S. entity for use in a trade secret misappropriation lawsuit pending in Germany. The district court denied Heraeus' request, finding that Heraeus had not established a "substantial need" for the discovery sufficient to justify compelling production of allegedly confidential information belonging to a third party.

On July 28, 2010, however, the United States Court of Appeals for the Third Circuit, vacated the lower court's decision and ordered the discovery (Heraeus v. Esschem, No. 09-3982 (3rd Cir.)). Noting that Heraeus had been foreclosed from obtaining the evidence, which it had tried to obtain by other means, and given that Heraeus was facing an important hearing in Germany in September 2010 and would be severely prejudiced if it did not have the evidence in time for that hearing, the Court found that Heraeus had established a substantial need for the discovery. On remand, the district court was instructed to grant the discovery sought by Heraeus and to order its production on an expedited basis.

Heraeus v. Esschem, No. 09-3982 (3d Cir.)