8 However, the Hague Convention does not deprive the court of its ordinary 3 powers to compel a foreign litigant to produce evidence 9 or require “the use of its procedures to the 4 exclusion of the Federal Rules procedures whenever evidence located abroad is sought for use in 5 an American court.” 10 Rather, a party seeking to apply the Hague Convention procedures has the burden to 7 “demonstrate appropriate reasons for employing Convention procedures.” 11 Although the Supreme 8 Court has not “articulate specific rules to guide” whether adoption of the Hague Convention 9 United States District Court For the Northern District of California 6 procedures is proper, a court may consider “the particular facts, sovereign interests and likelihood 10 that resort to procedures will prove effective.” 12 11 Autodesk provides computer-aided design software which “create digital models and 12 workflows that allow visualization, simulation and analysis of designs before implementation.” 13 13 AutoCAD is Autodesk’s “flagship product” and largest revenue-generating product. 27 28 2 Case No.: 5:14-cv-01409-EJD ORDER DENYING MOTION TO ADOPT THE HAGUE CONVENTION OR IN THE ALTERNATIVE TO MODIFY THE PROTECTIVE ORDER 1 conduct discovery under the Hague Convention on Taking of Evidence Abroad in Civil and 2 Commercial Matters. 23 24 25 26 6 See Société Nationale Industrielle Aérospatiale v. 52 at 1-2 see also Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar.18, 1970, 23 U.S.T. 26(c)(1) provides that “ party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.” “The court may, 10 for good cause,” issue an order “requiring that a trade secret or other confidential research, 11 development, or commercial information not be revealed or be revealed only in a specified way.” 5 12 The Supreme Court has “long recognized the demands of comity in suits involving foreign 13 states, either as parties or as sovereigns with a coordinate interest in the litigation.” 6 American 14 courts considering whether to order discovery from a foreign litigant should therefore “take care to 15 demonstrate due respect for any special problem confronted by the foreign litigant on account of its 16 nationality or the location of its operations, and for any sovereign interest expressed by a foreign 17 state.” 7 18 19 When a conflict exists between the discovery authorized under the Federal Rules of Civil Procedure and sovereign interests implicated by such discovery, a court may direct parties to 20 21 22 3 See Docket No.
7 8 United States District Court For the Northern District of California 9 Fed. 4 4 Because the court agrees with Autodesk that ZWSoft has not shown that a genuine risk of 5 liability under Chinese law or other factors justify the additional protective measures it seeks, 6 ZWSoft’s motion is DENIED.
3 ZWSoft alternatively seeks an order that ZWSoft’s source code 2 already deposited in Beijing be made available for inspection only in China and the parties adopt 3 ZWSoft’s amended protective order. 28 1 Case No.: 5:14-cv-01409-EJD ORDER DENYING MOTION TO ADOPT THE HAGUE CONVENTION OR IN THE ALTERNATIVE TO MODIFY THE PROTECTIVE ORDER 1 Civil or Commercial Matters.
To 22 mitigate the risk that discovery of its data and documents outside of China may subject it to 23 liability under Chinese state secret and privacy laws, ZWSoft moves for a protective order 24 directing that discovery be conducted under the Hague Convention on Taking Evidence Abroad in 25 26 1 The court will refer to these defendants collectively as ZWSoft. What is a bit unusual is that much of 21 the evidence relevant to the plaintiff’s claims is located in the People’s Republic of China. 2 That much is 20 not all that unusual this district is no stranger to such claims. 1 for copyright infringement and misappropriation of trade secrets. brought this suit against Defendants ZWCAD Software Co., Ltd. 52) Not happy with what it says is the wholesale theft of its proprietary source code, Plaintiff 18 Autodesk, Inc. 5:14-cv-01409-EJD ORDER DENYING MOTION TO ADOPT THE HAGUE CONVETION OR IN THE ALTERNATIVE TO MODIFY THE PROTECTIVE ORDER (Re: Docket No.
LTD., ZWCAD ) DESIGN CO., LTD., HK ZWCAD SOFTWARE ) LTD. 81 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION United States District Court For the Northern District of California 9 10 11 12 13 14 15 16 17 AUTODESK, INC., ) ) Plaintiff, ) ) v.