The Court of Appeals for the Seventh Circuit, held that the district court improperly denied plaintiff’s motion to take discovery for use in a lawsuit between the parties pending in a German court.
In Kulzer v. Biomet, 633 F.3d 591 (7th Cir. 2011) the record showed that plaintiff could not obtain the discovery it needed from the German court system and the defendant failed to show that the German court would have refused to admit any evidence that plaintiff obtained through U.S. discovery. Plaintiff sought discovery pursuant to 28 U.S.C. section1782 which provides that a party to litigation in a foreign country can seek discovery relating to that litigation in a federal district court and in the discretion of the court can obtain as much discovery as it could if the lawsuit had been brought in that court rather than abroad. The court had pointed out that the law is clear but that the district court must be alert for potential abuses that would warn a denial of an application to take such discovery.
The Court of Appeals then reviewed abuses which might occur and decided that none of them would be applicable in the instant case. The reviewing court also noted that the district court denied the discovery request on the ground that compliance would be unduly burdensome to the defendant without requiring the defendant to negotiate with plaintiff over cutting down the request to eliminate excessive burden or to ask the district court to limit the scope of discovery. The court said that this area is unrelated to section1782 because once the court has determined that abuses are unlikely, Rule 26 comes into play and the court should decide the burdensome issue under Rule 26. The Court said:
The district court’s decision must be reversed and the matter returned to that court for consideration of Heraeus’s discovery demands under Rule 26 and any other pertinent rules governing discovery in federal district courts. The district court need not bother itself with section 1782 any longer but is to consider Heraeus’s requests as it would any other discovery request in a complex case, and to do so in accordance with the discussion in this opinion. (P. 599)