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Trueposition, Inc v. Lm Ericsson Telephone Company (Telefonaktiebolaget Lm Ericsson

March 6, 2012

TRUEPOSITION, INC., PLAINTIFF,
v.
LM ERICSSON TELEPHONE COMPANY (TELEFONAKTIEBOLAGET LM ERICSSON), QUALCOMM, INC., ALCATEL-LUCENT USA, INC., EUROPEAN TELECOMMUNICATIONS STANDARDS INSTITUTE, AND THIRD GENERATION PARTNERSHIP PROJECT A/K/A 3GPP, DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is the Motion for Protective Order filed by European Telecommunications Standards Institute ("ETSI"), the response in opposition by Plaintiff, Trueposition, Inc. ("Trueposition"), and ESTI's reply. For the reasons provided below, ESTI's Motion for a Protective Order will be denied.

I. FACTUAL AND PROCEDURAL HISTORY*fn1

TruePosition describes itself as a "leading innovator in developing and marketing high accuracy location products that operate over cellular telecommunications networks." (Am. Compl. ¶ 3.) It devotes substantial resources annually to research and development for positioning technology. (Id. ¶ 10.) TruePosition alleges that ETSI is a "not-for-profit" standard-setting organization ("SSO")*fn2 located in France comprised of more than 700 member companies from 62 countries, including countries outside of Europe. (Id. ¶ 15.) According to TruePosition, "[t]he business of ETSI is, fairly and impartially, to create globally applicable standards for information and telecommunications technologies, including for mobile telecommunications." (Id.)
This action stems from the alleged anticompetitive conduct of major players in the international telecommunications market within the context of a SSO. (Id. ¶¶ 1-9.) TruePosition alleges that LM Ericsson Telephone Company (Telefonaktiebolaget LM Ericsson) ("Ericsson"), Qualcomm, Inc., and Alcatel-Lucent USA, Inc. ("ALU") (collectively, the "Corporate Defendants") conspired to exclude its positioning technology, Uplink Time Difference of Arrival ("UTDOA"),*fn3 from standards promulgated by a SSO, 3GPP. (Id.) According to TruePosition, the Corporate Defendants were able to exclude UTDOA by collaboratively manipulating 3GPP's processes and procedures. (Id. ¶ 6.) TruePosition further alleges that ETSI and 3GPP ("SSO Defendants") participated in the conspiracy to exclude UTDOA from 3GPP standards by failing in their obligations to ensure that the Corporate Defendants complied with 3GPP Rules. (Id. ¶¶ 114-122.)

TruePosition filed a Complaint on July 20, 2011. Therein, TruePosition alleged that the conduct described above violated United States antitrust law giving rise to two causes of action:

(1) violations of Section 1 of the Sherman Act, 15 U.S.C. § 1; and (2) violations of Section 2 of the Sherman Act, 15 U.S.C. § 2. TruePosition's Section 1 claim was asserted against all Defendants, while TruePosition's Section 2 claim was only asserted against Ericsson and ALU.

A majority of Defendants moved to dismiss the Complaint. Instead of dismissing the action, we allowed Trueposition to file an amended complaint curing any defects set forth in our January 6, 2012 Memorandum Opinion. Notably, ETSI moved for dismissal on the premise that we lack personal jurisdiction over it. In our Memorandum Opinion, we concluded that TruePosition's claim of jurisdiction was not frivolous, but limited jurisdictional discovery was needed in order to determine whether personal jurisdiction exists over ETSI. Trueposition filed an Amended Complaint on February 3, 2012. (See Am. Compl.) The Amended Complaint contains only one count asserted against all Defendants entitled "Combination Conspiracy in Violation of Section 1 of the Sherman Act (15 U.S.C. § 1 )." (Id. ¶¶ 139-153.)

II. DISCUSSION

A. The Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters, 28 U.S.C.S. § 1781, Mar. 18, 1970

The matter before the Court is a discovery dispute between TruePosition and ETSI. ETSI has moved for a protective order on the premise that the jurisdictional discovery between the parties must be secured through the Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters, 28 U.S.C.S. § 1781, Mar. 18, 1970 ("Hague Evidence Convention"). TruePosition argues that the discovery should proceed in accordance with the Federal Rules of Civil Procedure. For the reasons that follow, the jurisdictional discovery shall be conducted pursuant to the Federal Rules.

The Hague Evidence Convention "prescribes certain procedures by which a judicial authority in one contracting nation may request evidence located in another contracting state."*fn4

Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 524 (1987); see also In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 299 (3d Cir. 2004). Notably, the Hague Evidence Convention is not mandatory and "was intended to establish optional procedures that would facilitate the taking of evidence abroad." Id. at 538. It "does not provide exclusive procedures for obtaining documents and information located in a foreign signatory nation's territory." In re Automotive Refinishing Paint, 358 F.3d at 300 (citing Aerospatiale, 482 U.S. at 533-36). "Accordingly, the Convention does not deprive the District Court of its jurisdiction to order, under the Federal Rules of Civil Procedure, a foreign national party to the proceeding to produce evidence physically located within its territory." Id. (citing Aerospatiale, 482 U.S. at 539-40).

Significantly, the United States Supreme Court in Aerospatiale rejected a rule of first resort to the Hague Evidence Convention holding that the determination of whether to resort to the Hague Evidence Convention or the Federal Rules of Civil Procedure requires "prior scrutiny in each case of the particular facts, sovereign interests, and likelihood that such resort will prove effective." Aerospatiale, 482 U.S. at 546. "Aerospatiale rejects . . . a rule of first resort favoring the Convention on grounds of international comity and respect for 'judicial sovereignty' of the signatory nation in which evidence is sought is located." In re Automotive Refinishing Paint, 358 F.3d at 300 (citing Aerospatiale, 482 U.S. at 542-43). In Aerospatiale, the Supreme Court identified the following five factors to be considered in a comity analysis: (1) the importance of the documents or information requested to the litigation; (2) the degree of specificity of the requests; (3) whether the information originated in the United States; (4) the availability of alternative means of securing the information; and (5) the extent to which noncompliance with the requests would undermine important interests of the United States, or compliance of the requests would undermine important interests of the state where the information is located.*fn5 482 U.S. at 543-44 & n.28. Courts construing the holding in Aerospatiale have articulated two additional factors to be considered: (1) good faith of the party resisting ...

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