11-4116 Lufthansa Technik AG v. Astronics Corporation 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P** **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER** **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 24 th** **day of January, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **RAYMOND J. LOHIER, JR.,** 7 **CHRISTOPHER F. DRONEY,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **LUFTHANSA TECHNIK AG,** 12 **Petitioner-Appellant ,**  13 14 **-v.- 11-4116** 15 16 **ASTRONICS CORPORATION,** 17 **Respondent-Appellee ,**  18 - - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** LAWRENCE D. ROSENBERG (Susan M. 21 Gerber, on the brief ), Jones 22 Day, Washington, D.C. 23 24 **FOR APPELLEE:** JONATHAN M. FREIMAN, Wiggin and 25 Dana LLP, New Haven, Conn. 26 27

1Appeal from a judgment of the United States District 1 Court for the Western District of New York (Arcara, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4 **AND DECREED**that the judgment of the district court be 5 **AFFIRMED**

. 6 7 Lufthansa Technik AG appeals from the judgment of the 8 United States District Court for the Western District of New 9 York (Arcara, J. ), dismissing Lufthansa’s application for 10 discovery in aid of a foreign proceeding pursuant to 28 11 U.S.C. § 1782. Lufthansa is pursuing a patent infringement 12 claim in Germany against Astronics Advanced Electronic 13 Systems Corporation (“AES”), a wholly-owned subsidiary of 14 respondent Astronics Corporation. Lufthansa has filed two 15 nearly-identical applications for discovery assistance: one 16 in the Western District of Washington against the 17 subsidiary, and the other against the parent in the Western 18 District of New York. The New York court dismissed the 19 petition without prejudice as duplicative of the petition in 20 Washington. We assume the parties’ familiarity with the 21 underlying facts, the procedural history, and the issues 22 presented for review. 23 “As part of its general power to administer its docket, 24 a district court may stay or dismiss a suit that is 25 duplicative of another federal court suit.” Curtis v. 26 Citibank, N.A. , 226 F.3d 133, 138 (2d Cir. 2000); see also 27

2Colo. River Water Conservation Dist. v. United States , 424 1 U.S. 800, 817-18 (1976). “We review the exercise of this 2 power for abuse of discretion.” Curtis , 226 F.3d at 138. 3 The district court appropriately exercised its 4 discretion in dismissing Lufthansa’s duplicative petition. 5 The document requests in both petitions are substantively 6 identical, they relate to the same foreign proceeding, and 7 both corporations are represented by the same counsel. As 8 Lufthansa points out, there is no rule requiring 9 subsidiaries to produce the documents held by a parent; 10 however, courts may at times order the production of those 11 documents in an action against the subsidiary. See, e.g. , 12 United States v. Stein , 488 F. Supp. 2d 350, 361 (S.D.N.Y. 13 2007) (“Parent corporations have been compelled to produce 14 documents in the hands of subsidiaries, [and] subsidiaries 15 documents in the hands of their parent entities . . . .”); 16 Ferber v. Sharp Elecs. Corp. , No. 84 Civ. 3105, 1984 WL 17 912479, at *1 (S.D.N.Y. Nov. 28, 1984). This conclusion is 18 reinforced by assurances and representations made by 19 Astronics at oral argument: 1) Astronics concedes that the 20 Washington court has authority to order it to produce 21 discovery; and 2) Astronics has already searched for 22

3materials in its possession under the Washington court’s 1 order. 1 2 Lufthansa cites the policy purposes behind § 1782 and a 3 historical practice of granting overlapping discovery 4 requests. However, no case supports Lufthansa’s argument 5 that § 1782 forecloses an exercise of discretion to dismiss 6 duplicative actions. To the contrary, district courts have 7 dismissed duplicative § 1782 petitions for reasons similar 8 to the ones discussed in this order. See, e.g. , In re Adolf 9 Horler , 799 F. Supp. 1457, 1465 (S.D.N.Y. 1992); In re Alves 10 Braga , 789 F. Supp. 2d 1294, 1310-11 (S.D. Fla. 2011) 11 (staying part of a § 1782 petition pending the resolution of 12 foreign proceedings). Additionally, in many of the cases 13 relied on by Lufthansa, the overlapping discovery requests 14 were filed in a single tribunal, where the risk of competing 15 judgments is lessened. Here, the district judge was 16 appropriately concerned with issuing decisions conflicting 17 with those made by the court in Washington. To protect 18 Lufthansa’s interests, though, the district court dismissed 19 the petition without prejudice in the event the Washington 20

1Despite finding several documents responsive to Lufthansa’s discovery request, Astronics claims they are all privileged and has created a privilege log to that effect.
4court could not provide Lufthansa with the discovery it 1 seeks. 2 While Lufthansa argues the district court 3 inappropriately imposed an extra-statutory barrier to its 4 petition, the statute itself is to the contrary. District 5 courts are directed to order discovery “in accordance with 6 the Federal Rules of Civil Procedure.” 28 U.S.C. § 1782(a). 7 Thus, “the district court retains broad authority under Fed. 8 R. Civ. P. 26(b)(1) to limit discovery where . . . the 9 discovery sought is unreasonably cumulative or duplicative . 10 . . .” In re Malev Hungarian Airlines , 964 F.2d 97, 102 (2d 11 Cir. 1992) (internal quotation marks omitted). Concern for 12 duplicative § 1782 petitions is not an extra-statutory 13 burden. 14 In regard to Lufthansa’s motion to take judicial notice 15 of related proceedings, the motion is **GRANTED** . However, 16 finding no merit in Lufthansa’s other arguments, we hereby 17 **AFFIRM** the judgment of the district court. 2 18 19 FOR THE COURT: 20 CATHERINE O’HAGAN WOLFE, CLERK 21 22

2To the extent the parties cannot reach an agreement in their discovery conflict, they are encouraged to seek mediation in the Court’s Civil Appeals Management Program (“CAMP”) or a similar program.
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