Discovery

Pages:50-53
50 Volume 21, April–June 2015 international law update
© 2015 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
Mitsubishi’s prospective-waiver doctrine might
apply to contracts under the Carriage of Goods
by Sea Act, 46 U.S.C. app. § 1300 et seq. In both
cases, the Court declined to apply the doctrine, in
part, because it would be premature to do so; each
case addressed the enforceability of an agreement
to arbitrate, as opposed to awards in which the
arbitrators actually failed to address causes of action
under American statutes.”
“e present case is at the award-enforcement
stage, unlike Mitsubishi and Vimar, and the district
court applied the prospective-waiver doctrine.
e district court noted that the antitrust laws
in Mitsubishi and COGSA in Vimar applied to
‘business disputes between sophisticated parties.’
Because seamen are aorded special protections
under United States law, unlike sophisticated parties,
the district court concluded that the prospective-
waiver doctrine prevented the enforcement of the
Philippine arbitral award.”
“However, the prospective-waiver doctrine
is limited to statutory rights and remedies. From
Mitsubishi onwards, the Supreme Court has
referred only to ‘statutory’ rights and remedies
when discussing the doctrine. e Court recently
continued that phrasing in American Express
Co. v. Italian Colors Restaurant, where the Court
refused to apply the doctrine to a waiver of class
arbitration. e Supreme Court has not extended
the prospective-waiver doctrine beyond statutory
rights and remedies. e district court therefore
erred when it relied on the doctrine to aord
Asignacion an opportunity to pursue his claims
under the general maritime law. Additionally, to
apply that doctrine in every case in which a seaman
agreed to a choice-of-law provision that would
result in lesser remedies than those available under
laws of the United States would be at odds with
the rationale of the Supreme Court’s reasoning in
Romero v. International Terminal Operating Co.,
discussed above.” [Slip op. 8-9] (Footnotes omitted)
e Court reverses the order of the district
court, and remands for the district court to enforce
the arbitral award.
citation: Asignacion v. Rickmers Genoa
Schiahrtsgesellschaft mbH & Cie KG, 783 F.3d
1010 (5th Cir. 2015).
DISCOVERY
In patent dispute between a Japanese
and a Korean company, Federal Circuit
concludes that when a court is
requested to modify a protective order
to allow the production of confidential
materials in a foreign proceeding, it
should consider the INTEL FACTORS in
connection with 28 U.S.C. § 1782
In 2012, Nippon Steel & Sumitomo Metal
Corporation (“Nippon Steel”) (based in Japan)
led a patent infringement action in New Jersey
against POSCO (based in Korea) and POSCO
America Corporation (jointly “POSCO”). During
the litigation, the district court entered a protective
order limiting the use of condential materials
solely for the prosecution or defense of that action.
Following this order, POSCO produced several
million pages of documents containing condential
information. Nippon Steel also sued POSCO in
Japan alleging trade secret misappropriation. For
that case, Nippon Steel sought to amend the U.S.
district court’s protective order to allow Japanese
counsel to have access to POSCO’s condential
materials produced in the U.S. action. A Special
Master in the U.S. district court action issued
a Letter Opinion allowing production of those
documents in the Japanese action so long as the
materials were maintained condential under
Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d
Cir. 1994). Under this standard, a “party seeking
to modify the order of condentiality must come
forward with a reason to modify the order . . . the
court should then balance the interests, including
the reliance by the original parties to the order,
to determine whether good cause still exists for
the order.” Pansy, 23 F.3d at 790. Over POSCO’s
objection, the district court entered an order
arming the Special Master’s decision. POSCO
sought a writ of mandamus in the Federal Circuit.
e U.S. Court of Appeals for the Federal
Circuit grants POSCO’s petition. e key issue here
is the role of 28 U.S.C. § 1782(a) in the context of
the request to modify a protective order. e Court
considers this issue against the background of the

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