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Andover Healthcare, Inc. v. 3M Co.

United States District Court, D. Minnesota

October 6, 2014

Andover Healthcare, Inc., Petitioner,
3M Company, Respondent.

David Brafman, Akerman LLP; and Scott A. Benson, Briol & Associates, PLLC, for Petitioner.

Felicia J. Boyd, Barnes & Thornburg LLP; and Michael A. Morin and Casey L. Dwyer, Finnegan Henderson Farabow Garrett & Dunner LLP, for Respondent.




This matter is before the Court on Petitioner Andover Healthcare, Inc.'s Objections [Doc. No. 28] to the Magistrate Judge's August 26, 2014 Order denying Andover's Petition for Expedited Discovery Under 28 U.S.C. § 1782. Respondent 3M Company filed an Opposition [Doc. No. 29], and the matter was heard via teleconference on October 3, 2014. For the reasons set forth below, this Court overrules Andover's objections and affirms the Magistrate Judge's Order.


Andover Healthcare, Inc. and 3M Company each make and sell latex-free bandages in the United States and Germany. (See Andover's Pet. for Expedited Discovery Under 28 U.S.C. § 1782 [Doc. No. 1] ("Andover's Pet."), at 2-3; 3M's Opp. to Andover's Pet. [Doc. No. 17] ("3M's Opp."), at 1-2.) Andover's latex-free bandage products are protected by both a U.S. patent and a European patent. (See Andover's Pet., at 2; Brafman Decl. [Doc. No. 2], ¶ 2 & Ex. 1.) In May 2013, Andover filed a lawsuit in the U.S. District Court for the District of Delaware, alleging that 3M's latex-free bandage products infringed its U.S. patent. See Andover Healthcare, Inc. v. 3M Company, No. 1:13-cv-00843-LPS (D. Del.). In December 2013, Andover brought a lawsuit against 3M and its German subsidiary in Germany, alleging their infringement of the European patent. (Brafman Decl. ¶ 4 & Exs. 3-4.)

Of particular relevance to the present matter are allegations of infringement of the following patent claim:

A cohesive product comprising a substrate and a synthetic water-based cohesive..., wherein the synthetic water-based cohesive comprises an inherently crystalline elastomer and at least one tackifying agent in an amount effective to disrupt the crystalline structure of the elastomer and maintain the elastomer in a partial polycrystalline state...."

(Id. ¶ 2 & Ex. 1.) In support of its noninfringement defense in the German litigation, 3M submitted an expert report describing the results of crystallinity testing of the materials used in its products. (See id. ¶ 7 & Ex. 7 at 17.) Andover claims that the test results showing zero crystallinity "cannot be correct" because the product literature from all manufacturers of the type of material tested show that the material crystallizes (just at different rates). (Andover's Pet., at 4.) Accordingly, Andover seeks to conduct its own testing, but 3M has refused to disclose in the German litigation the specific materials used in its products. (See id. at 6.) Although 3M has disclosed that information in the litigation in the District of Delaware, the protective order in that case prevents Andover from using those documents in the German litigation. (See id.) Likewise, the district judge in that case denied Andover's request to use the "highly confidential information" in the German proceedings, finding that "both German law and U.S. law (see 28 U.S.C. Sec. 1782) provide other, appropriate mechanisms for [Andover] to seek the relief it is requesting." (Brafman Decl. ¶ 11 & Ex. 11.) On June 30, 2014, the day after the judge in the District of Delaware case issued his ruling, Andover filed a request with the German court for the same information, but the German court would not consider the issue prior to the September 5 hearing on the merits of the infringement claims. (See Giebe Decl. [Doc. No. 18], ¶¶ 4, 6.)

On August 4, one month prior to the hearing in the German matter, Andover filed its § 1782 Petition with this Court. Andover seeks an order compelling 3M to produce documents, for use in the German proceedings, that are responsive to the following requests:

1. Documents sufficient to show the ingredients in, formulation of, and method of making the products accused of infringement in Germany (Coban LF, Coban 2, and Coban 2 Lite); and
2. Documents referencing the crystallization or crystallinity properties of the polychloroprene used in the products accused of infringement.

(Andover's Pet., at 2.) In its Petition, Andover argued that it satisfies the statutory requirements of § 1782 because 3M resides in this District, the requested discovery is for use in Andover's pending lawsuit in Germany, and, as a party to the German litigation, Andover is an "interested person." ( Id. at 7.) Andover also argued that the factor test enunciated by the U.S. Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. favors this Court's exercise of discretionary authority to compel the production of evidence under § 1782. (See id.) Specifically, Andover argued that: (1) although 3M is a party to the German litigation, Andover needs this Court's assistance to obtain the requested discovery because document requests in Germany are usually denied; (2) evidence obtained through U.S. discovery procedures can be introduced in German litigation; (3) Andover is not attempting to circumvent Germany's proof-gathering restrictions; and (4) the requested discovery is not unduly intrusive or burdensome because it is narrowly tailored and was already produced in the litigation in the District of Delaware. (See id. at 9-13.) Finally, Andover asserted that ...

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