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