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In re Heraeus Kulzer GmbH

September 11, 2009

IN RE HERAEUS KULZER GMBH, PETITIONER,
FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO TAKE DISCOVERY, PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, OF RESPONDENT ESSCHEM, INC., FOR USE IN FOREIGN PROCEEDINGS



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM & ORDER

I. INTRODUCTION

This action came before the Court on the Application of Heraeus Kulzer GmbH ("Heraeus") for an Order to take discovery for use in foreign litigation pursuant to 28 U.S.C. § 1782.*fn1

Petitioner Heraeus is a German company in the business of producing and developing bone cement. It seeks to take discovery from Respondent, Esschem, Inc. ("Esschem"), a company with its principal place of business in this judicial district, and which manufactures the specialized materials used in bone cement.

The foreign litigation in question is pending in Germany ("German Action"). Heraeus is the plaintiff, and the defendants include Biomet, Inc., and related companies ("Biomet"), among others. In the German Action, Heraeus seeks redress for an alleged misappropriation of its trade secrets by the various defendants.

Esschem is not a party in the German Action. The basis for this action is Heraeus's belief that Esschem has compelling evidence of the tortious conduct attributed to Biomet in the German Action. In particular, Heraeus contends evidence regarding the formulation of bone cement materials produced by Esschem to specifications ordered by Biomet could demonstrate Biomet's use of Heraeus's trade secrets.

The Court issued an Order granting Heraeus's Application on February 24, 2009.*fn2

By the same Order, it adopted and imposed a protective order regarding access to and disclosure of confidential information in this matter. The Order authorized Heraeus to serve a subpoena for documents and information upon Esschem and to take subsequent depositions. Esschem's counsel accepted service of the subpoena on February 24, 2009.

Presently before the Court is Esschem's Motion to Quash the subpoena.*fn3 Esschem argues the subpoena should be quashed because it would impose an undue burden and because it seeks disclosure of trade secret or otherwise confidential information. The parties have filed briefs with supporting affidavits, and have presented oral argument on the Motion to the Court. The matter is ready for disposition.

II. BACKGROUND

Due to the nature of this action and the stage of proceedings, a limited factual record is available at present, some of which is disputed. Yet certain facts, critical to the Court's analysis of the instant Motion, are not disputed.

A. Indiana Proceedings

First, as noted, Biomet is a party in the German Action while Esschem is not.

Biomet's U.S. headquarters is in Indiana. At around the same time that Heraeus instituted this action, it commenced a similar action under 28 U.S.C. ยง 1782 in the United States District Court for the Northern District of Indiana seeking discovery from Biomet in that state in aid of the German Action. After the Indiana district court granted Heraeus's application for a subpoena for documents and other materials from Biomet via the order of the U.S. Magistrate Judge to whom the ...


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