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Marical, Inc. v. Cooke Aquaculture Inc.

United States District Court, D. Maine

May 25, 2016

MARICAL INC., et al., Plaintiffs,
v.
COOKE AQUACULTURE INC., et al., Defendants

          ORDER ON MOTIONS FOR ISSUANCE OF LETTERS ROGATORY

          John C. Nivison U.S. Magistrate Judge

         The matter is before the Court on Plaintiffs’ Motion for Order Issuing Letters Rogatory (ECF No. 120), as modified by substitute exhibits (ECF No. 126), and Defendants’ Motion for Order Issuing Letters Rogatory (ECF No. 124). Through the motions, the parties request the production of evidence by the following Canadian entities who are not parties to this litigation and who are not subject to the compulsory process of this Court in the context of this litigation:

Skretting Canada, Inc. 46 Moore-Clark Drive St. Andrews, New Brunswick Canada E5B 3S7
Corey Nutrition Company d/b/a Corey Aquafeeds 136 Hodgson Road Fredericton, New Brunswick Canada E5B 3S7

         Legal Standard

         A letter rogatory, or letter of request, is “a formal request from a court in which an action is pending, to a foreign court to perform some judicial act.” 22 C.F.R. § 92.54. Letters rogatory are commonly used to facilitate the taking of evidence from non-parties located in foreign jurisdictions. Id.; Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 248 n.1 (2004). In addition to document discovery and other forms of non-testimonial discovery, a letter rogatory may include a request for the deposition of a foreign witness. Fed.R.Civ.P. 28(b)(2). A letter rogatory requesting a deposition may issue “on appropriate terms after an application and notice” and “without a showing that taking the deposition in another manner is impracticable or inconvenient.” Id. “Requests rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity.” 22 C.F.R. § 92.54.

         This Court has inherent authority to issue letters rogatory and may issue letters rogatory directly to a foreign tribunal. 28 U.S.C. § 1781(b)(2). Google Inc. v. Rockstar Consortium U.S. LP, No. 4:13-cv-05933, 2014 WL 8735114, at *1 (N.D. Cal. Oct. 3, 2014). The decision to exercise that authority is a matter of discretion. Triumph Aerostructures, LLC v. Comau, Inc., No. 3:14-CV-02329, 2015 WL 5502625, at *2 (N.D. Tex. Sept. 18, 2015); Rockstar Consortium, 2014 WL 8735114, at *1. A court generally will not weigh the evidence sought or predict whether the evidence will be obtained in the foreign jurisdiction. Rockstar Consortium, 2014 WL 8735114, at *1. However, “[j]udicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 546 (1987). Additionally, the Court’s exercise of discretion is informed by the discovery standards set forth in Rule 26(b) of the Federal Rules of Civil Procedure. Triumph Aerostructures, LLC, 2015 WL 5502625, at *3. Rule 26 authorizes the following discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         Analysis

         The parties seek discovery from two Canadian businesses that have supplied Defendants with feed used in Defendants’ aquaculture operations. In particular, the parties request information regarding the composition of the feed the businesses supplied to Defendants. In this case, the material issues include the composition of the feed that Defendants have provided to their fish during the period of alleged infringement, [1] and whether feed produced before Plaintiffs filed their applications (limited to 1997 - 1999) would have met the specifications of the Patents-in-Suit, such that the use of said feed for the purposes identified in the Patents-in-Suit was understood in the prior art or was obvious to the person of ordinary skill in the art. The requested discovery thus is relevant to the claims, counterclaims, and defenses at issue in this action. Given that the parties’ requests are designed to elicit relevant information, the requests are within the scope of discovery and, therefore, are presumptively appropriate, [2] are not unduly burdensome, and are not the product of improper motive.[3]

         Conclusion

         Based on the foregoing analysis, the Court grants Plaintiffs’ Motion for Order Issuing Letters Rogatory (ECF No. 120) and Defendants’ Motion for Order Issuing Letters Rogatory (ECF No. 124). The approved Letters Rogatory are attached to this Order.[4]

         The parties may present their respective Letter Rogatory to the Court of Queen’s Bench, New Brunswick, Canada, provided this Order and the Court’s ...


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