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NOT FOR PUBLICATION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
NIKON CORPORATION, No. 17-17148
Petitioner-Appellee, D.C. No. 5:17-mc-80071-BLF
v.
MEMORANDUM*
GLOBALFOUNDRIES U.S., INC.,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted December 7, 2017
San Francisco, California
Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,** District Judge.
GlobalFoundries 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 GlobalFoundries to produce documents and other information.
Reviewing the magistrate judge’s decision for abuse of discretion, Four Pillars
*
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.
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 GlobalFoundries, the fourth Intel factor. We note that the magistrate judge
ordered Nikon to pay GlobalFoundries’ reasonable out-of-pocket discovery
expenses. 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
2
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.
AFFIRMED.
3