I love a 1782 Application. It's like watching a foreign film -- you get to learn all these neat little tidbits about other countries and ponder what it might be like to live and die as a Moldovan Lawyer.
Judge Williams decided one such application related to a suit in that most exotic of locations - Germany.
The applicant in In Re Ex Parte Application of Nokia Techs., C.A. No. 23-1395-GBW (D. Del. Apr. 18, 2024) (Mem. Order) was seeking source code and other docs from a little mom and pop shop called Amazon, for use in pending and contemplated German infringement proceedings.
The Court denied the request for discovery in the contemplated proceeding expressing concerns that the discovery was a "fishing expedition to determine if it should pursue litigation against amazon." Id. at 5.
The more interesting issue was whether the Court would grant discovery into the pending action under the discretionary Intel factors, which is where we get to the Germany of it all. This involved a discussion of the discovery available in a German court, and whether Nokia's request amounted to an end-run around those procedures:
Amazon argues that Nokia's request is an attempt to circumvent proof-gathering restrictions in the German courts because Nokia has not requested discovery from Amazon in those proceedings. However, Nokia explained that German discovery procedures require a party to request specific documents by name-which Nokia contends it cannot do as it does not know what documents would prove Amazon's infringement. Accordingly, Nokia contends that it has no available mechanism to obtain the discovery it seeks in Germany. Id.
Id. at 7 (internal citations omitted).
Wouldn't discovery be so easy if that was the rule? Man, that's living.
In any case, the Court found that this did indicate "an attempt to circumvent the German courts' discovery rules, but not a 'surreptitious' effort to do so." Id. at 8.
Ultimately, the Court denied the request on the grounds that it requested source code, famously the most closely guarded and confidential piece of discovery:
The Court, however, finds that Nokia's request is unduly intrusive and burdensome for Amazon. Among other types of documents, Nokia requests the source code for various features of Amazon's CDN CloudFront. Source codes are "sensitive and confidential property" and, "when disclosed in U.S. litigation, extreme measures are ordered to protect their confidentiality." As such, this factor weighs against Nokia's request for discovery.
Id. at 8-9 (internal citations omitted).
Given that the decision seemed to hinge largely on the burden of foreign production of source code, I expect to see it cited for this proposition quite a bit going forward.
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