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EX PARTE APPLICATION TO QUASH SUBPOENA/FOR PROTECTIVE ORDER
10-cv-00273-SBA
68653 v1
Douglas W. Robinson (CA SBN: 255909)
dwrobinson@shb.com
SHOOK, HARDY & BACON L.L.P.
Jamboree Center
5 Park Plaza, Suite 1600
Irvine, California 92614-2546
Telephone: 949-475-1500
Facsimile: 949-475-0016
Attorneys for Specially-Appearing
Applicant Huawei Technologies Co., Ltd.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
In re Application of HIGH POINT,
S.A.R.L. Pursuant to 28 U.S.C. § 1782,
Applicant.
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Case No.: 10-CV-00273-SBA
EX PARTE APPLICATION OF
SPECIALLY-APPEARING
APPLICANT HUAWEI
TECHNOLOGIES CO., LTD. TO
QUASH SUBPOENA AND FOR A
PROTECTIVE ORDER OR,
ALTERNATIVELY, FOR STAY OF
DEPOSITION AND PRODUCTION
DATES PENDING HEARING ON
MOTION TO QUASH SUBPOENA
AND FOR A PROTECTIVE ORDER
[Filed concurrently with Declarations
of Bill Lynch, Tingting Hou, Gao
Feng, and Zhang Yu in Suppor t of
Application and [Proposed] Order ]
(TBD by Court)
Date:
Time:
Courtroom:
Magistrate:
Application filed: January 20, 2010
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TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES………………………………1
I. INTRODUCTION……………………………………………….……………..1
II. BACKGROUND…………………………………………………………….….1
A. The Parties…………………………………………………………………...1
B. The Underlying Litigation …………………………………………………..1
C. The Ex Parte Application of High Point, S.A.R.L. Pursuant to
28 U.S.C. § 1782………………….………………………………….……...2
III. FACTS AND ARGUMENT..…………………………………………………..2
A. High Point Has Failed to Meet the Statutory Requirements of 28 U.S.C. §
1782…………………………….……………………………………………2
1. Huawei Was Not Found and Does Not Reside in This District………….2
B. High Point’s Overly Burdensome Discovery Requests
Compel The Court’s Discretion Against High Point’s
Application Pursuant to 28 U.S.C. § 1782…….…………………………….4
1. High Point’s Requests Are Unduly Burdensome………………………..5
2. High Point’s Requests Are Unduly Intrusive…………………………….7
3. The Third Intel Factor Weighs Against High Point’s Application………7
C. High Point’s Requests Improperly Seek to Give Extraterritorial
Effect to 28 U.S.C. § 1782. …………………………………………............8
D. High Point Failed to Effect Service on Huawei…………………………….9
IV. CONCLUSION……………………………………………………………......11
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TABLE OF AUTHORITIES
Cases
Advanced Micro Devices, Inc. v. Intel Corp.,
292 F.3d 664 (9th Cir. 2002). ………………………...….………………..…8, 9
Chase Manhattan Corp. v. Sarrio S.A.,
119 F.3d 143 (2d Cir. 1997)…………………………………………………….9
Hickory Travel Systems, Inc. v. Tui AG,
213 F.R.D. 547 (N.D. Cal. 2003)…………………………………………...9, 10
In re Application of Godrey,
526 F. Supp. 2d 417 (S.D.N.Y. 2007)…………………………………………..8
In re Application of Morano,
2009 WL 482649 (N.D. Cal. 2009)…...………………………………...4, 5, 7, 8
In re Application of Nokia Corp.,
2007 WL 1729664 (W.D. Mich. 2007)………………………..……………..3, 4
Intel Corp. v. Advanced Micro Devices, Inc.,
542 U.S. 241 (2004)…………………………………………………….……4, 8
Kestrel Coal v. Joy Global,
362 F.3d 401 (7th Cir. 2004)…………...……………………………………....4
Norex Petroleum Ltd. v. Chubb Ins. Co.,
384 F. Supp. 2d 45 (D.C. Dir. 2005)……………………………………………9
Orion Tire Corp. v. General Tire, Inc.,
1992 WL 295224 (C.D. Cal. 1992)……………..……….…………………….10
Statutes
28 U.S.C. § 1782…..………………………………………………………….…passim
Other Author ities
Federal Rule of Civil Procedure 45………………..…………………………………..5
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TO THE COURT, ALL PARTIES, AND COUNSEL OF RECORD:
PLEASE TAKE NOTICE that as soon as the matter may be heard, before a
United States Magistrate Judge, in a courtroom to be determined, located at 1301 Clay
Street, Fourth Floor, Oakland, California 94612, specially-appearing applicant Huawei
Technologies Co., Ltd. (“Huawei” ) will request, and hereby does respectfully request,
that the Court issue an ex parte order quashing High Point, S.A.R.L.’s (“High
Point’s” ) subpoena to Huawei and issue a protective order to prevent future similar
requests to Huawei. Alternatively, Huawei seeks an ex parte order from the Court
staying the deposition and production dates dictated by High Point’s subpoena
pending the hearing on Huawei’s motion for an order quashing the subpoena and for a
protective order. Huawei respectfully requests this relief on an ex parte basis because
there is insufficient time before the scheduled deposition and production dates – as set
forth in High Point’s subpoena – for this matter to be heard on a regularly noticed
motion. Should the Court require a hearing date for this matter, Huawei respectfully
requests that the Court set the matter for hearing on the earliest-available date on the
Court’s calendar.
Pursuant to this Court’s Standing Orders, Order No. 5, Huawei hereby certifies
that it has met and conferred with counsel for High Point regarding the content of this
application, including the motion to quash and for a protective order. The parties were
unable to resolve this dispute informally, thereby necessitating the instant application.1
///
///
///
///
1 This application is timely pursuant to the agreement of counsel for High Point,
S.A.R.L. and counsel for Huawei that Huawei’s deadline to respond to High Point’s
subpoena is extended by one week and, hence, the date to respond to the document
requests was extended to March 25, 2010.
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This application is based on this notice of application and application; the
accompanying memorandum of points and authorities and declarations in support; the
pleadings, papers, and records on file in this action; and upon such oral argument and
other evidence that the Court may receive at or before any hearing on this application.
Dated: March 24, 2010 Respectfully submitted,
SHOOK, HARDY & BACON L.L.P.
By: /s/Douglas W. Robinson______
Douglas W. Robinson
Attorneys for Specially-Appearing
Applicant Huawei Technologies Co.,
Ltd.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
HUAWEI ’S EX PARTE APPLICATION TO QUASH SUBPOENA AND FOR A
PROTECTIVE ORDER
I . INTRODUCTION
On March 3, 2010, the Court granted the ex parte Application of High Point,
S.A.R.L. Pursuant to 28 U.S.C. § 1782 (the “Ex Parte Application” ) and authorized
High Point, S.A.R.L. (“High Point” ) to serve a subpoena seeking documents and
testimony from Huawei Technologies Co., Ltd. (“Huawei” ). High Point’s Ex Parte
Application misstates key facts and misrepresents the burdensome nature of the
discovery High Point seeks to impose upon a non-party to the underlying action.
Furthermore, High Point failed to serve Huawei with the subpoena, but instead served
the subpoena upon an employee of a different company with no authority to accept
service on behalf of Huawei. Huawei hereby presents its Motion to Quash and for a
Protective Order, and would respectfully show the Court as follows:
I I . BACKGROUND
A. The Par ties
High Point purports to be a Luxembourg private limited liability company.
(High Point’s Memorandum of Law, p. 3.)
Huawei is a corporation duly organized under the laws of the People’s Republic
of China and domiciled in Shenzen, China. (Declaration of a Gao Feng In Support of
Huawei’s Application [“Feng Decl.” ], ¶ 2.)
B. The Under lying Litigation
High Point has sued KPN, B.V. (“KPN”) in the Hague District Court in the
Netherlands alleging that KPN infringes a patent allegedly owned by High Point.
(High Point’s Memorandum of Law, p. 3.) Huawei is not a party to the underlying
litigation against KPN, although Huawei is a supplier of equipment to KPN. Despite
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having already brought two patent infringement actions against KPN, High Point now
contends that it requires information of a highly sensitive and confidential nature from
Huawei in order to perfect its allegations against KPN.
C. The Ex Par te Application of High Point, S.A.R.L. Pursuant to 28
U.S.C. § 1782
On January 20, 2010, High Point filed with the Court an ex parte application
pursuant to 28 U.S.C. § 1782 accompanied by its Memorandum of Law in Support of
the Application of High Point, S.A.R.L. Pursuant to 28 U.S.C. § 1782. The Court
granted High Point’s application, at least in part upon consideration of “ the
Memorandum of Law, and the supporting declarations,” on March 3, 2010. (Order re
Application of High Point, S.A.R.L. Pursuant to 28 U.S.C. § 1782, p. 1.) As will be
established below, however, High Point’s Memorandum of Law misstated key facts
and grossly misrepresented the discovery burden it seeks to impose on Huawei.
Huawei has not previously had the opportunity to apprise the Court of the true
nature of Huawei’s presence in the Northern District of California (more specifically,
its lack thereof) and of the true scope of the discovery sought by High Point. These
facts are set forth below.
I I I . FACTS AND ARGUMENT
A. High Point Has Failed To Meet The Statutory Requirements Of 28
U.S.C. § 1782.
1. Huawei Was Not Found and Does Not Reside in This District.
Section 1782 requires that a person “resides or is found” within the district in
order for the statute to apply to that person. 28 U.S.C. § 1782. Huawei, however,
neither resides in nor was found in this district, and hence the statutory requirement is
not met.
High Point has stated to the Court that Huawei maintains operations at 2330
Central Expressway, Santa Clara, California 95050, and at 1255 Treat Blvd. Suite 308
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Walnut Creek, California 94597, both of which are in this district. (High Point’s
Memorandum of Law, p. 3.) This is incorrect. Both the operations in Santa Clara and
the operations in Walnut Creek are facilities of FutureWei Technologies, Inc.
(“FutureWei” ), are maintained by FutureWei, and are staffed by FutureWei
employees. (See Declaration of Tingting Hou in Support of Huawei’s Application
[“Hou Decl” ], ¶¶ 3-4.) FutureWei is a separate and legally distinct company from
Huawei; it is a corporation duly organized under the laws of the State of Texas and
has its headquarters located in Plano, Texas. (Id., ¶ 2.) Hence, the existence of those
FutureWei facilities within this district cannot bring Huawei under the purview of 28
U.S.C. § 1782.
High Point has also argued that Huawei “also conducts business in this district
through its wholly owned subsidiary Futurewei Technologies, Inc.” (High Point’s
Memorandum of Law, p. 3.) This point is irrelevant, as the residence of a subsidiary
within a district will not support application of 28 U.S.C. § 1782 to a parent company.
See In re Application of Nokia Corp., 2007 WL 1729664 (W.D. Mich. 2007). In
similar circumstances, the district court in Nokia originally granted authority to Nokia
under Section 1782 to take discovery of Robert Bosch GmbH (“Bosch”) on the basis
of Nokia’s ex parte assertions that Bosch resided within the district. Id. at *1-*2. In
granting Bosch’s motion to quash, the district court agreed that the activities of
Bosch’s subsidiaries within the district were unavailing to grant authority under
Section 1782, particularly where Bosch and the subsidiaries were legally distinct
entities and observed corporate formalities. Id. at *3.
The salient facts that the Nokia district court relied upon in concluding that
Bosch neither “resides” nor was “found” in the district included that Bosch: (a) was
not registered to do business; (b) did not have a registered agent for service of process;
(c) did not maintain offices or manufacturing or production facilities; and (d) neither
owned nor leased real property, in the district. Likewise, Huawei is not registered to
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do business in California. (Feng Decl., ¶ 3.) Huawei does not have a registered agent
for service of process in California. (Feng Decl., ¶ 4.) Huawei does not maintain
offices, manufacturing facilities, or production facilities in California. (Feng Decl., ¶
5.) Under such circumstances, Huawei neither resides nor is found in this district. See
Nokia, 2007 WL 1729664 at *3; see also Kestrel Coal v. Joy Global, 362 F.3d 401,
405 (7th Cir. 2004) (Section 1782 “neither instructs, nor permits, courts to disregard
the distinction between the corporation that owns a set of documents, and a different
corporation that owns stock in the first entity” absent a finding of corporate fraud or
piercing the corporate veil).
Because Huawei neither resides nor is found in this district, the statutory
requirements of 28 U.S.C. § 1782 are not satisfied. High Point’s subpoena to Huawei
is improper and should be quashed.
B. High Point’s Over ly Burdensome Discovery Requests Compel the
Cour t’s Discretion Against High Point’s Application Pursuant to 28
U.S.C. § 1782.
As shown above, Huawei is neither found nor resides in the district, and hence
the statutory requirements of Section 1782 are not satisfied. Even if the statute’s
requirements were met, however, High Point’s application pursuant to Section 1782
should nonetheless be denied. Application of 28 U.S.C. § 1782 is discretionary. Intel
Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004). In deciding
whether to grant authority under section 1782, the Court should consider:
(1) whether the person from whom discovery is sought is a participant in
the foreign proceeding;
(2) the nature of the foreign tribunal, the character of the proceedings
underway abroad, and the receptivity of the foreign government or the
court or agency abroad to U.S. federal court judicial assistance;
(3) whether the request conceals an attempt to circumvent foreign proof-
gathering restrictions or other policies of a foreign country or the United
States; and
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(4) whether the request is unduly intrusive or burdensome.
In re Application of Marano, 2009 WL 482649 at *2 (N.D. Cal. 2009) (citing Intel,
542 U.S. at 264-65).
Under the Federal Rules, “ the issuing court must quash or modify a subpoena
that: … (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(iv).
Given the burdensome nature of High Point’s discovery requests as discussed below,
the Court should not allow such discovery to go forward.
Given the burdensome nature of High Point’s discovery requests, the highly
confidential and proprietary nature of the information sought, and High Point’s failure
to establish that the procedures of the jurisdiction of the underlying litigation are
inadequate, the Court should exercise its discretion to not allow such discovery to go
forward.
1. High Point’s Requests Are Unduly Burdensome.
In seeking an application pursuant to Section 1782, High Point characterized its
discovery requests as “narrowly-tailored to seek only information relevant to KPN’s
non-infringement defense based on its use of Huawei’s MGW and core network
products.” (High Point’s Memorandum of Law, p. 8.) At first blush, High Point’s
discovery requests do appear to be narrowly directed to “KPN Core Network
equipment.” (See Subpoena from High Point to Huawei [Exhibit A], p. 8.) However,
upon traversing High Point’s maze of nested definitions, it becomes clear that the
discovery requests cover practically all core network equipment supplied by Huawei,
without limitation to the type of equipment, where it is sold, or to whom it is sold.
As just one example, High Point’s first request for documents2 seeks, “The
technical specifications and functional description of the KPN Core Network
equipment,” and then lists eight separate sub-topics. While the request purports to be
2 A copy of the subpoena issued to Huawei is attached hereto as Exhibit A for the
Court’s convenience.
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limited to “KPN Core Network equipment,” the Definitions section of the request
recites:
The terms “KPN Core Network equipment” shall mean the Huawei Core
Network equipment including, without limitation, Huawei MGWs, that
Huawei supplied to KPN.
Exhibit A, p. 3, Definition 10 (emphasis added).
“Huawei Core Network Equipment” is broadened in a previous definition to
include:
The terms “Huawei MGW” and “Huawei Core Network equipment”
mean MGWs and other Core Network equipment supplied by Huawei,
including, without limitation Huawei’s UMG8900 Universal Media
Gateway.
Exhibit A, p. 3, Definition 9 (emphasis added).
Finally, the term “Core Network” is defined in an all-encompassing manner, as:
The term “Core Network” shall mean equipment comprising the central
part of a mobile telecommunications network architecture that provides
paths for the exchange of information between different sub-networks,
and includes the functions of, among others, call control/switching and
the provision of gateways to access other networks. Core Network
equipment includes, without limitation, MGWs and any other devices
involved in the transport of call traffic between RNCs and a telephone
network.
Exhibit A, p. 3, Definition 7 (emphasis added).
When the nested definitions are followed through, High Point’s assertedly
“narrowly-tailored” request in fact places an undue burden on Huawei to respond with
regard to all core network equipment without limitation. These requests are not in any
way limited to the specific equipment accused in the underlying litigation, or to
equipment supplied to KPN. Huawei is potentially in possession of tens of thousands,
or more, documents responsive to the overly inclusive requests by High Point.
Although High Point provides some specific examples, by couching them as
examples without limitation, High Point’s requests are overly broad and unduly
burdensome and are entirely inconsistent with High Point’s characterization of being
narrowly tailored. They appear to be more of an attempt for unfettered discovery
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across Huawei’s entire product line. Such fishing expedition tactics would not likely
be allowed if Huawei were a party to litigation with High Point – they clearly should
not be allowed in these circumstances.
2. High Point’s Requests Are Unduly Intrusive.
Huawei is not a party to the underlying litigation between High Point and KPN.
Neither Huawei nor its products and services have been accused of infringing the
patent being asserted in that litigation. Nonetheless, High Point seeks from Huawei
documents of a highly confidential and proprietary nature.
High Point seeks “technical specifications,” “ functional descriptions,” and
“training or product manuals” covering a host of the inner workings of Huawei’s
equipment. (Declaration of Zhang Yu [“Yu Decl.” ], ¶ 3.) The technical details of
Huawei’s equipment are highly proprietary and highly confidential. In fact, many of
High Point’s requests for production of documents would require the disclosure of
valuable trade secrets. (Yu Decl., ¶ 4.) Huawei should not be required to produce
documents of such a highly sensitive nature, particularly in response to grossly over-
reaching requests that go far beyond the issues in the underlying litigation.
3. The Third Intel Factor Weighs Against High Point’s Application.
The third Intel factor for the Court to consider in deciding whether to exercise
its discretion is “whether the request conceals an attempt to circumvent foreign proof-
gathering restrictions or other policies of a foreign country or the United States.”
Marano, 2009 WL 482649 at *2. Mere conclusory statements of the type High Point
has made, that it is not employing the sort of improper tactic the Intel court
contemplated, are insufficient. Id. at *4. Rather, the burden rests on High Point to
establish that KPN (i.e., the actual party to the underlying litigation) “does not possess
the desired information or that any discovery process provided for by [the jurisdiction
of the underlying litigation] is inadequate to yield the desired information.” Id.
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High Point has failed to demonstrate that the discovery process provided for by
the Dutch court is inadequate. While High Point argues that “Dutch procedural rules
do not provide for third-party discovery” (High Point’s Memorandum of Law, p. 7),
High Point is silent with regard to discovery on a party to the litigation. KPN is a
party to the litigation, and as a purchaser and user of Huawei equipment, KPN is in
possession of substantial information regarding the relevant core network equipment.
High Point’s reference to certain informal email requests to KPN hardly establishes
High Point is unable to obtain the requested information in the Netherlands. Absent
such evidence, there is “no basis to authorize the issuance of the requested subpoena.”
Marano, 2009 WL 482649 at *4.
Furthermore, High Point’s application to have this Court (i) impose discovery
on a Chinese corporation, (ii) domiciled in China, (iii) that is not otherwise appearing
before this Court, (iv) and for which jurisdiction of this Court has not been
established, (v) to compel production of documents and testimony from China, is a
clear attempt by High Point to circumvent the Hague Convention and other treaties
defining the procedures for seeking discovery in a foreign sovereign nation. This too
is contrary to the cautionary language of Intel that Section 1782 not be allowed to
circumvent foreign proof-gathering restrictions or other policies. See Intel, 542 U.S.
at 264-65.
C. High Point’s Requests Improper ly Seek To Give Extrater r itor ial
Effect to 28 U.S.C. § 1782.
Section 1782 was never intended to have extraterritorial effect. See In re
Application of Godfrey, 526 F. Supp. 2d 417, 423 (S.D.N.Y. 2007) (citing to
legislative history, learned treatises, and the “bulk of authority,” in holding “a witness
cannot be compelled to produce documents located outside of the United States”). In
fact, the Ninth Circuit Court of Appeals has described Section 1782 as legislation
“which permits domestic discovery for use in foreign proceedings.” Advanced Micro
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Devices, Inc. v. Intel Corp., 292 F.3d 664, 665 (9th Cir. 2002), emphasis added, dicta.
In one of the few cases where this issue has come before the Ninth Circuit, the court
upheld the magistrate judge’s denial of an application pursuant to Section 1782 and
noted with approval the magistrate judge’s observation “that he did ‘not view the
purpose of § 1782 as encompassing the discovery of material located in foreign
countries.’ ” See also, Chase Manhattan Corp. v. Sarrio S.A., 119 F.3d 143, 147 (2d
Cir. 1997) (Noting that “despite [Section 1782’s] unrestricted language, there is
reason to think that Congress intended to reach only evidence located within the
United States.” ); Norex Petroleum Ltd. v. Chubb Ins. Co., 384 F. Supp. 2d 45, 53
(D.C. Cir. 2005) (“The Court has found no case in which § 1782 has been used to
permit extraterritorial application of § 1782.” ).
High Point’s discovery requests to Huawei are an attempt to impermissibly
extend the reach of § 1782 to permit extraterritorial application of the statute. To the
extent Huawei is in possession of any responsive documents, those documents are
located in the People’s Republic of China. (Yu Decl., ¶ 5.) Likewise, any Huawei
personnel who would be competent to testify to the requested topics for deposition are
also located in China. (Yu Decl., ¶ 6.) Because § 1782 was not intended and has
never been found to have extraterritorial application, High Point’s subpoena should be
quashed.
D. High Point Failed To Effect Service On Huawei.
Because Huawei is neither found nor resides in this district, it is not surprising
that High Point was unable to serve process on Huawei. Instead, High Point simply
served process on Huawei’s subsidiary, FutureWei. This was improper.
“The sufficiency of process in federal courts is determined by Rule 4 of the
Federal Rules of Civil Procedure.” Hickory Travel Systems, Inc. v. Tui AG, 213
F.R.D. 547, 552 (N.D. Cal. 2003). Assuming solely for the sake of argument that
Huawei has sufficient contacts with the United States that service may be completed
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within the United States, High Point must nonetheless perfect service of process either
(a) according to the state in which the federal court sits, or (b) under an alternative
method as provided for in Rule 4(h)(1) of the Federal Rules of Civil Procedure. See
Hickory Travel, 213 F.R.D. at 552. High Point has failed to comply with either of
these methods, however.
California state law does not permit service on a foreign corporation merely by
serving process on a domestic subsidiary. Id. (citing Orion Tire Corp. v. General
Tire, Inc., 1992 WL 295224 at *1 (C.D. Cal. 1992)). Even if FutureWei was
presumed to be an alter ego of Huawei, service on FutureWei is not sufficient under
California law. Id.
In order to avail itself of the alternative service provisions of Rule 4(h)(1), High
Point must establish that FutureWei operates as Huawei’s agent or alter ego.
FutureWei is not authorized to accept service on behalf of Huawei. (Hou Decl., ¶ 5.)
Besides a mere conclusory statement that Huawei “conducts business in this district
through its wholly owned subsidiary,” High Point has failed to offer any evidence
suggesting, much less establishing, that FutureWei is the agent or alter ego of Huawei.
See Hickory Travel, 213 F.R.D. at 552-53. Even the fact that FutureWei is wholly
owned by Huawei, as alleged by High Point, is not sufficient to create an agency or
alter ego. Id. at 554. Because High Point has failed to establish even a prima facie
case of agency or alter ego, High Point’s subpoena should be quashed due to defective
service – as well as for the substantive reasons addressed above.
Furthermore, High Point’s attempted service can not be characterized as service
on Huawei itself. The subpoena was delivered to a FutureWei facility and was left
with a FutureWei employee, Bill Lynch. (Declaration of Bill Lynch in Support of
Huawei’s Application [“Lynch Decl.” ], ¶¶ 1, 4.) Mr. Lynch is not a Huawei
employee, is not authorized to accept service on behalf of Huawei, and does not hold
himself out as being so authorized. (Lynch Decl., ¶¶ 2-3.) Mr. Lynch did not identify
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himself as an agent of Huawei or as authorized to accept service on behalf of Huawei
to the process server who delivered the High Point subpoenas. (Lynch Decl., ¶ 4.)
IV. CONCLUSION
Huawei neither resides nor is found in this district and hence Section 1782 does
not apply to Huawei. Even assuming for the sake of argument that Huawei was found
in the district, the Court should exercise its discretion not to authorize High Point’s
application pursuant to Section 1782 because of the unduly burdensome and intrusive
nature of the discovery requests, because High Point has failed to establish it cannot
obtain the desired information directly from the party to the underlying litigation, and
because High Point’s failure to undertake the discovery policies provided for by treaty
with China effectively circumvents proof-gathering policies of a foreign country. This
last factor is particularly compounded because the responsive documents and
witnesses are located in China – effectively requiring the Court to give extraterritorial
effect to the statute despite the clear weight of authority to the contrary that the section
was not intended to have such extraterritorial effect. Finally, the subpoena should be
quashed because High Point has failed to effect service on Huawei.
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Huawei respectfully requests that the subpoena be quashed and that a protective
order be imposed by the Court denying further discovery attempts by High Point
directed to Huawei.
Dated: March 24, 2010
Respectfully submitted,
SHOOK, HARDY & BACON L.L.P.
By: /s/Douglas W. Robinson______
Douglas W. Robinson
Attorneys for Specially-Appearing Applicant
Huawei Technologies Co., Ltd.
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