When this blog began, in October 2010, it covered goings-on in the Supreme Court of New Jersey, the Appellate Division, and the Third Circuit Court of Appeals, with occasional posts about the Supreme Court of the United States. That continued for many years. More recently, however, it became too difficult to keep up with all of those three courts, and coverage of the Third Circuit disappeared virtually entirely. But since the Supreme Court and the Appellate Division have not published many decisions recently (a circumstance that is certain to change shortly), this blog will resume covering the Third Circuit at least on occasion, beginning today.
In re: Application of Amgen Inc. for Assistance Before a Foreign Tribunal, ___ F.4th ___ (3d Cir. 2025). 28 U.S.C. § 1782(a) permits district courts to order a person “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” In this case, Amgen, Inc. filed patent infringement actions against Celltrion Inc., a South Korean company, in the courts of both the United States and South Korea. Amgen filed an application under section 1782(a) to subpoena Celltrion’s United Staes subsidiary, Celltrion USA, which is headquartered in New Jersey. The subpoena sought 82 categories of documents and testimony.
Celltrion opposed the application on multiple grounds, including an assertion that compliance with the subpoena would be unduly intrusive and burdensome. A Magistrate Judge rejected Celltrion’s arguments and granted Amgen’s application. But as the Third Circuit’s per curiam opinion recounted, the judge “ordered the parties to ‘assuage[]’ Celltrion USA’s concerns by ‘meet[ing] and confer[ring] and enter[ing] into a confidentiality agreement that will govern the documents produced under the subpoena.’ It left the scope of permissible discovery to be determined at a later date” (citations omitted).
Celltrion appealed to the District Court, which affirmed the Magistrate Judge’s ruling. Celltrion then went to the Third Circuit.
The Third Circuit focused on a jurisdictional issue: “whether an order entered under § 1782 is ‘final,’ such that it may be appealed under 28 U.S.C. § 1291, when a district court has determined that discovery is appropriate under § 1782 but has not yet conclusively defined the scope of that discovery.” The court concluded that there was no finality and dismissed the appeal for lack of jurisdiction.
As the panel’s opinion noted, discovery orders are normally not appealable because they are not final. Cases still proceed after courts rule on discovery issues. “But orders under § 1782 are different. In § 1782 proceedings, ‘discovery is everything,’ because ‘[o]nly the discovery dispute . . . is occurring in the United States.” So once the district court conclusively resolves that dispute, ‘there is no further case or controversy before the district court.’ And for that reason, we have held that an order granting or denying discovery under § 1782 is ‘final,’ making it immediately appealable under § 1291 (citations to Third Circuit and other Circuit authorities omitted.
The ultimate question, though, was “at what point in the district court proceedings such an order becomes final.” The court turned to “ordinary finality principles” for the answer.
“We have held that an order becomes final’ for purposes of § 1291 when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. On the other hand, where a matter remains open, unfinished or inconclusive, there may be no intrusion by appeal” (cleaned up and citations omitted). Here, the further proceeding required by the order appealed from (meeting and conferring and compliance with the subpoena subject to any specific objections raised during the meet and confer process, fell “far short of a conclusive determination as to Celltrion USA’s obligations under the § 1782 order.” Therefore, the “order granting discovery under § 1782, but declining to determine the scope of permissible discovery, is not a final order under § 1291.” The court noted that the Fifth and Ninth Circuits had reached a comparable result in “nearly identical circumstances.”