United States District Court, D. Maryland
IN RE APPLICATION OF POLYMER SOLUTIONS INTERNATIONAL, INC.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
pending and ready for resolution in this case, brought under
28 U.S.C. § 1782, is the multi-faceted motion to
intervene, to vacate the ex parte order granting the
section 1782 application pursuant to rule 59(e), to quash the
subpoena directed to Joseph M. Mischler and for protective
order, or alternatively for a stay pending appeal. (ECF No.
15). The issues have been fully briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6.
For the following reasons, the motion will be granted in part
and denied in part.
22, 2018, Polymer Solutions International, Inc.
(“Polymer”) filed, ex parte, an
application under 28 U.S.C. § 1782 to take discovery
from Joseph M. Mischler (“Mr.
Mischler”). (ECF No. 1). The following facts were set
forth in Polymer's application.
2011, Polymer entered into a contract (“the
contract”) with CPA Global Limited
(“CPA”). (ECF No. 1-5). Under the terms of the
contract, CPA was responsible for maintaining Polymer's
portfolio of patents by paying periodic fees and overseeing
compliance with administrative requirements in the respective
countries where Polymer maintains patents. (ECF No. 1-5). For
each patent renewal, Polymer agreed to reimburse CPA for all
renewal costs and provide CPA a flat fee as compensation.
(ECF No. 1-5, at 5, 8-9). Additionally, the contract stated
that “[t]hese conditions and any contract made under
them shall be governed by and construed in accordance with
[Isle of] Jersey law and the courts of [the Isle of] Jersey
shall have exclusive jurisdiction.” (ECF No. 1-3, at
2017, after learning about two pending lawsuits against CPA
for overcharging clients, Polymer demanded records “of
the itemized disbursement costs paid by CPA Global to renew
Polymer Solutions' patents.” (ECF No. 1-1, at 7;
ECF No. 1-8). CPA's response indicated that, given
additional time to comply, CPA would respond to Polymer's
request for itemized records in due course. (ECF No. 1-9, at
1). Polymer's legal representatives replied to CPA on
February 12, 2018, granting CPA an extension of time to
provide the requested itemized records and indicating
Polymer's intent to pursue legal proceedings if CPA
failed to comply. (ECF No. 1-10, at 3). CPA declined to
provide the requested records, alleging that they were
already provided over the course of the companies'
business relationship. (ECF No. 1-11, at 2).
sought discovery from Joseph M. Mischler (“Mr.
Mischler”) by filing the aforementioned application to
take discovery under 28 U.S.C. § 1782. (ECF No. 1). Mr.
Mischler was formerly employed as CPA's Executive Vice
President of Sales and Marketing for the Americas. (ECF No.
1-1, at 14). He purportedly confirmed that he has relevant
knowledge, but that he would only disclose the information if
he is subpoenaed. Id.
court issued an order granting Polymer's application and
authorizing Polymer to serve Mr. Mischler a subpoena pursuant
to 28 U.S.C. § 1782 on June 27, 2018. (ECF No. 9). On
June 28, 2018, Polymer issued Mr. Mischler a subpoena to
testify at a deposition on July 15, 2018. (ECF 10-3, at 2).
CPA filed an emergency motion to intervene on July 13, 2018,
asking the court to approve CPA's intervention as of
right under Fed.R.Civ.P. 24(a) and quash the subpoena issued
to Mr. Mischler or, alternatively, provide a stay and
protective order delaying Mr. Mischler's
deposition. (ECF No. 10, at 12). The court approved a
joint stipulation on July 13, 2018, resulting in termination
of CPA's emergency motion to intervene. (ECF Nos. 11
& 12). In the stipulation, Polymer agreed to withdraw the
June 28, 2018 subpoena, issue a new subpoena with a July 23,
2018 deposition date, and stay the deposition pending
CPA's potential filing of a motion for relief from the
court's order granting Polymer's § 1782
application. (ECF No. 11, at 2-3).
filed a motion to intervene on July 23, 2018, asking the
court to approve CPA's intervention as of right under
Fed.R.Civ.P. 24(a), vacate the order granting Polymer's
§ 1782 application and quash the subpoena directed to
Mr. Mischler or, alternatively, provide a stay and protective
order delaying Mr. Mischler's deposition. (ECF No. 15).
Polymer filed a response in opposition on August 6, 2018 (ECF
No. 16), and CPA replied on August 20, 2018 (ECF No. 17).
moves to intervene as of right pursuant to Fed.R.Civ.P.
24(a). (ECF No. 15-1, at 11). CPA argues that (1) CPA is
interested because the information sought in the § 1782
application could be used against it, and (2) the ex
parte nature of Polymer's § 1782 application
permits CPA to intervene and seek vacatur of the court's
June 27, 2018 order. (ECF No. 15-1, at 11-12).
Rule of Civil Procedure 24(a)(2) provides for intervention as
On timely motion, the court must permit anyone to intervene
who . . . claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
In Pennsylvania Nat. Mut. Cas. Ins. Co. v. Perlberg,
268 F.R.D. 218, 224-25 (D.Md. 2010), Judge Blake noted:
“[T]o intervene as of right, a movant must show: (1)
timely application; (2) an interest in the subject matter of
the underlying action; (3) that a denial of the motion to
intervene would impair or impede the movant's ability to
protect its interest; and (4) that the movant's interest
is not adequately represented by the existing parties to the
litigation. Houston Gen. Ins. Co. v. Moore, 193 F.3d
838, 839 (4th Cir. 1999). “A party moving
for intervention under 24(a) bears the burden of establishing
a right to intervene, and must do so by satisfying all four
requirements.” U.S. ex rel. MPA Const., Inc. v. XL
Specialty Ins. Co., 349 F.Supp.2d 934, 937 (D.Md. 2004)
(citing In re Richman, 104 F.3d 654, 658
(4th Cir. 1997)).
satisfies all four requirements for intervention as of right.
First, the motion to intervene is timely because it was filed
shortly after CPA received notice of Polymer's approved
§ 1782 application. Second, CPA has a significantly
protectable interest in the subject matter of this case
because Polymer's § 1782 application seeks to access
information about CPA's billing practices and fee
structure and that information could potentially be used in
litigation against CPA. See, e.g., JLS, Inc. v. Pub.
Serv. Comm'n of W. Virginia, 321 Fed.App'x 286,
289 (4th Cir. 2009) (“Rule 24 does not
specify what type of interest a party must have to intervene
as a matter of right, but the Supreme Court has recognized
that “‘what is obviously meant . . . is a
significantly protectable interest.'” (quoting
Teague v. Bakker, 931 F.2d 259, 261 (4th Cir.
1991)). Third, denying CPA's motion to intervene would
allow the deposition of Mr. Mischler to proceed without
affording CPA an opportunity to provide evidence of why the
court should have denied Polymer's § 1782
application. Finally, CPA has demonstrated that its interests
may not adequately be represented by the existing parties to
the litigation because no party represented CPA's
interest when the § 1782 application was originally
filed. Id. (noting that an intervenor's burden
in showing that the existing parties will not adequately
represent its interests is “minimal” and the
intervenor need only show that “representation of his
interest may be inadequate”) (emphasis added)
(internal citations and quotation marks omitted).
other courts have recognized a party's right to intervene
where the information sought by its opponent under a §
1782 application may be used against them. In re Rivada
Networks, 230 F.Supp.3d 467, 472 (E.D.Va. 2017)
(“It is well-settled that a part[y] against whom the
requested information will be used . . . has standing to
challenge the issuance of § 1782 subpoenas under the
Rules of Civil Procedure and under the statute
itself.”) (internal quotation marks omitted). Because
CPA demonstrated eligibility to intervene as of right, it is
unnecessary to consider CPA's additional request to
intervene by permission.
Motion to Vacate
moves to vacate the June 27, 2018 order granting
Polymer's ex parte request to subpoena Mr.
Mischler. (ECF No. 15). CPA invokes Fed.R.Civ.P. 59(e), but
argues that the heightened standard governing Rule 59(e)
motions should not apply here because “CPA had no prior
opportunity to oppose Polymer's [§] 1782
Application.” (ECF No. 15-1, at 19). A motion to vacate
under Rule 59(e) may be granted “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice.”
Pacific Ins. Co. v. American Nat. Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998). “However,
reconsideration of a judgment after its entry is an
extraordinary remedy which should be used sparingly.”
Grounds for Amendment or Alteration of Judgment, 11 Fed.
Prac. & Proc. Civ. § 2810.1 (3d ed.).
motion to vacate is eligible for consideration because the
motion was timely filed and provides the court with new
evidence. Fed.R.Civ.P. 59(e) (“A motion to alter or
amend a judgment must be filed no later than 28 days after
the entry of the judgment.”) The court's June 27,
2018 order was granted ex parte, and based primarily
on the evidence provided in Polymer's § 1782
application. CPA's unawareness of the § 1782
application qualifies as “a legitimate justification
for not presenting the evidence” at an earlier time.
Small v. Hunt, 98 F.3d 789, 798 (4thCir.
CPA bears the burden of demonstrating that Polymer fails to
meet the statutory and discretionary standards required of a
§ 1782 application. See In re Bayer AG, 146
F.3d 188, 196 (3d Cir. 1998), as amended (July 23,
1998) (“Inasmuch as relevant evidence is presumptively
discoverable under § 1782, the burden of demonstrating
offense to the foreign jurisdiction, or any other facts
warranting the denial of a particular application, should
rest with the party opposing the application.”);
Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d at
597 (7th Cir. 2011) (“Once a [§] 1782
applicant demonstrates a need for extensive discovery for aid
in a foreign lawsuit, the burden shifts to the opposing
litigant to demonstrate, by more than angry rhetoric, that
allowing the discovery sought (or a truncated version of it)
would disserve the statutory objectives.”).