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Judges order consideration of discovery demands

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The 7th Circuit Court of Appeals ordered a Northern Indiana District Court to reconsider a German company’s discovery demands made in relation to a lawsuit pending in Germany over the alleged theft of trade secrets.

Heraeus Kulzer, maker of bone cement for orthopedic surgery, is suing Biomet, which has its corporate headquarters in Warsaw, Ind., claiming Biomet’s bone cement incorporates Heraeus’ trade secrets without authorization. Heraeus had a contract for many years with another German company to distribute Heraeus’ bone cement. In 1998, that company entered into a joint venture with Biomet, which began making a close substitute for Heraeus’ product.

German law only allows discovery of documents that can be specifically identified individually whereas American law allows for much broader discovery. Heraeus can seek discovery in U.S. federal court because of 28 U.S.C. Section 1782. District Judge Robert L. Miller in the Northern District of Indiana denied the discovery, and by doing so, committed two errors, wrote Judge Richard Posner for the 7th Circuit.

District Courts that receive these kinds of requests must be careful of potential abuses that would warrant a denial and Judge Posner spelled out several examples. But Heraeus’ requests weren’t an attempt to abuse the American discovery system and Judge Miller was incorrect in concluding that the company was seeking to circumvent German law, wrote Judge Posner in Applications of Heraeus Kulzer, GmbH, for orders compelling discovery for use in a foreign proceeding v. Biomet Inc., et al, Nos. 09-2858, 10-2639.

“Heraeus cannot obtain even remotely comparable discovery by utilizing German procedures and there is nothing to suggest that the German court would be affronted by Heraeus’s recourse to U.S. discovery or would refuse to admit any evidence, or at least any probative evidence (German judges can disregard evidence that would waste the court’s time), that the discovery produced,” he wrote.

The District Court also erred in turning down the company’s discovery request flat out on the ground that compliance would be burdensome to Biomet. The District Court didn’t require Biomet to negotiate with Heraeus over cutting down the request and Biomet didn’t ask to limit the scope of discovery.

“Heraeus’s discovery demands are broad, in part because they reach back fifteen years, to before the joint venture between Biomet and Merck. For all we know, they are too broad. But if so, it doesn’t follow that Heraeus is not entitled to any discovery. It’s not as if its demands were frivolous; it obviously needs a good deal of discovery in order to prepare its case against Biomet,” he wrote. “If it’s asking for too much, the district court can and should cut down its request, but not to nothing, as it did. That was unreasonable, and therefore reversible.”

The judges remanded for further proceedings consistent with the opinion.
 

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

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  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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