Nikon Corporation v. Asml U.S., Inc. ( 2017 )

  •                                                                             FILED
                                     NOT FOR PUBLICATION
                                                                                DEC 12 2017
                           UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS
                                     FOR THE NINTH CIRCUIT
    In re: APPLICATION PURSUANT TO                    No. 17-16961
    28 U.S.C. § 1782 TO TAKE
    DISCOVERY OF ASML U.S., INC.                      D.C. No. 2:17-mc-00035-JJT
    ASML U.S., INC.,
                          Appeal from the United States District Court
                                   for the District of Arizona
                          John Joseph Tuchi, District Judge, Presiding
                            Argued and Submitted December 7, 2017
                                   San Francisco, California
    Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,** District Judge.
                 This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
                 The Honorable Michael H. Simon, United States District Judge for the
    District of Oregon, sitting by designation.
          ASML U.S., Inc., timely appeals the district court’s order, in response to a
    request by Nikon Corporation pursuant to 28 U.S.C. § 1782(a), requiring ASML
    U.S. to produce documents and other information. Reviewing for abuse of
    discretion, Four Pillars Enters. Co. v. Avery Dennison Corp., 
    308 F.3d 1075
    , 1078
    (9th Cir. 2002), we affirm.
          The statutory requirements for discovery indisputably are met. The district
    court carefully considered the factors described by the Supreme Court in Intel
    Corp. v. Advanced Micro Devices, Inc., 
    542 U.S. 241
    , 264 (2004). On this record,
    we cannot conclude that the court abused its "broad discretion" in ordering
    discovery limited to documents physically located within the United States.
    Akebia Therapeutics, Inc. v. FibroGen, Inc., 
    793 F.3d 1108
    , 1112 (9th Cir. 2015).
          For example, even for the documents located both in the United States and
    abroad, the second Intel factor is met because Nikon’s experts stated, in unrebutted
    declarations, that the foreign tribunals would welcome the discoverable evidence.
    Similarly, we are unpersuaded that the discovery order imposes an undue burden
    on ASML U.S., the fourth Intel factor. Even if an alternative weighing of the
    factors were reasonable, the district court’s decision was not "(1) illogical, (2)
    implausible, or (3) without support in inferences that may be drawn from the facts
    in the record." Mujica v. AirScan Inc., 
    771 F.3d 580
    , 589 (9th Cir. 2014) (internal
    quotation marks omitted). Moreover, no bright-line rule exists in the statute,
    Supreme Court law, or our precedents—and we decline to create one—to the effect
    that discovery must be denied for the sole reason that the same items are found in
    another country.