May 22, 2015
IN RE APPLICATION OF BECTON DICKINSON GmbH AND BECTON DICKINSON AUSTRIA GmbH FOR THE TAKING OF THOMAS C. KURACINA’S DEPOSITION AND FOR THE PRODUCTION OF DOCUMENTS FROM THOMAS C. KURACINA AND INJECTIMED INC., FOR USE IN A FOREIGN PROCEEDING UNDER 28 U.S.C. § 1782a
Before the court is the Application of Becton Dickinson GmbH and Becton Dickinson Austria GmbH (collectively referred to herein as “BD”) for leave to serve subpoenas seeking the taking of deposition testimony and production of documents from Thomas C. Kuracina and Injectimed Inc. for use in a foreign proceeding under 28 U.S.C. § 1782(a) (the “Application”). By the Application, BD seeks discovery from Mr. Thomas C. Kuracina and Injectimed Inc. For the reasons stated below, the court GRANTS the application.
The purpose of § 1782 is “to provide federal-court assistance in gathering evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 262 (2004). Section 1782 prescribes as follows:
(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
28 U.S.C. § 1782.
The 28 U.S.C. § 1782(a) statutory requirements are met when (1) the person from whom discovery is sought resides or is found in the judicial district in which the § 1782 application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the person seeking discovery is an interested person. Consorcio Minero, S.A. v. Doe Run Res. Corp., No. 4:11-MC-583, 2011 U.S. Dist. LEXIS 112414, at *4-5 (E.D. Mo. Sept. 30, 2011). The court finds the statutory requirements to be satisfied. In particular, the court finds that Mr. Thomas C. Kuracina and Injectimed Inc. are found or reside within this district; that the discovery is for use in a foreign tribunal; and that Becton Dickinson GmbH and Becton Dickinson Austria GmbH are interested persons in the foreign proceedings.
Moreover, having considered each of the discretionary factors set out by the United States Supreme Court in Intel Corp., the court further finds that those factors weigh in favor of granting the Application. Accordingly, the court exercised its discretion to grant the Application.
Based on the foregoing, the court GRANTS the Application.
It is therefore ORDERED, ADJUDGED AND DECREED that Applicants shall have leave to serve Mr. Kuracina and Injectimed Inc. with the subpoenas annexed to the Application.
IT IS SO ORDERED.