Access practice tools, as well as industry leading news, customizable alerts, dockets, and primary content, including a comprehensive collection of case law, dockets, and regulations. Leverage...
By Peter Leung
March 2 — Elvis Presley Enterprises LLC's motion to secure an order to take discovery in the U.S. for a legal dispute in Germany was denied by the U.S. District Court for the Southern District of New York March 1.
EPE, which holds the rights to Elvis Presley's recordings, had moved for an order for discovery against Sony Music Entertainment and its affiliate Arista Music for use in a dispute in Germany regarding royalty payments. The request was made pursuant to 28 U.S.C. § 1782, a tool that international litigants sometimes use when litigating abroad, since most countries have more restrictive discovery procedures than the U.S.
The New York court rejected EPE's motion. Both parties agreed that the statute applies to this case. However, after applying the four-factor analysis provided by the Supreme Court in Intel Corp. v. Advanced Micro Devices. Inc., 542 U.S. 241, 71 U.S.P.Q.2d 1001 (U.S. 2004) ), the court declined to exercise its discretion to order discovery because three of the four factors weighed against doing so.
The first factor asks whether the party against whom discovery is sought is a participant in the foreign litigation. The court found that, since EPE is seeking evidence from an affiliate of a party to the German litigation, the information could have been requested through the German court; thus, this factor weighed against granting the motion. In addition, the court found that EPE's argument that German discovery laws are narrower in scope than U.S. law did not tilt the factor in its favor, as it did not address the fact that all the sought-after information is available to its opponent in the German proceeding.
The second factor looks at the nature of the foreign proceedings and whether the foreign court would be receptive to assistance from a U.S. court. The court pointed to the considerable progress of the German proceedings and EPE's delay in bringing the motion. It also noted that, despite EPE's claims that Arista's production in Germany was deficient in light of the court's order there, EPE did not take advantage of procedures in Germany to force Arista to fix the problem and was, instead, using the U.S. motion to accomplish that goal. Those issues led the court to find that the second factor also weighed against granting discovery.
The third factor—whether the discovery request is an attempt to circumvent foreign law—was neutral. Section 1782 does not require EPE to exhaust its remedies in Germany, nor does it require it to prove that the evidence sought is admissible or discoverable there.
The final factor—whether the request was overbroad and unduly burdensome—also weighed against granting the discovery motion. The court accepted Arista's argument that the information sought is only minimally relevant to the German proceedings.
To contact the reporter on this story: Peter Leung in Washington at email@example.com
To contact the editor responsible for this story: Mike Wilczek in Washington at firstname.lastname@example.org
Text available at http://src.bna.com/c0J
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)