‘Discretionary Factors’ Favor Granting Subpoena vs. Amazon, Court Told

Amazon “does not dispute” that Sailed Technology’s application for a subpoena to compel discovery by Amazon for patent infringement litigation in the Chinese courts “falls squarely within” the scope of Section 1782, said Sail’s reply Friday in U.S. District Court for Western Washington in Seattle (docket 2:22-cv-01396).

Amazon also does not deny that the district court has “jurisdiction over Amazon and the power to grant Sailed’s application,” said Sailed. “It merely seeks to persuade the Court to exercise discretion not to. Amazon’s arguments are unavailing.”

The “discretionary factors” at play in the 2004 Supreme Court decision, Intel v. Advanced Micro Devices, authorizing U.S. district courts to enforce Section 1782 discovery requests made in connection with litigation being conducted in foreign tribunals, all favor Sailed “and demonstrate that the application should be granted,” said Sailed. “This conclusion is not undermined in the least by Amazon’s legal arguments, or by the misleading and pejorative factual narrative that precedes them.”

Amazon wrongly argues there is no need for Section 1782 aid “due to a purported change in Chinese law that occurred in 2015,” said Sailed. But multiple U.S. courts since that time have granted Section 1782 applications and “continued to point to lack of discovery procedures in Chinese intellectual property courts,” it said. “Amazon has pointed to no case, and Sailed has found none, where a U.S. court has found that any purported 2015 developments have rendered discovery more available to litigants in China.”

The Chinese court’s “likely receptivity” to a U.S. subpoena also weighs heavily in Sailed’s application, said the company. Sailed produced a declaration from a Chinese attorney “attesting that the Chinese courts would accept, rather than reject, the evidence in question,” said Sailed. Far from providing authoritative proof to the contrary, Amazon offered only its attorney’s assertion that Chinese courts are extremely sensitive about intervention or assistance from foreign courts, and are unlikely to be receptive to U.S. court involvement in the discovery process in a Chinese lawsuit, it said: “This statement is baseless.”

Amazon has articulated “no undue burden” that would result from the granting of the requested subpoena, said Sailed. Where Amazon asserts the subpoenas seek detailed and highly sensitive financial information, in fact they seek only documents sufficient to show Amazon’s sales of its infringing products, it said. “And though Amazon elects not to say so, the requests include time limitations” to reduce any chance of burden, it said. If Amazon has concerns about the confidentiality of sensitive information, or about any future use of the documents, “they could be addressed by a protective order,” it said.

Lacking facts that would “properly militate” against granting Sailed’s application, Amazon “attempts to distract the court from the merits by making false and derogatory assertions” about Sailed and its principal Anne Wang, said the company. In an Oct. 17 filing, Amazon alleged Sailed is one of several “shell companies operated by a patent speculator named Anne Wang and her family members” that have filed more than 70 “remarkably unsuccessful” patent infringement lawsuits (see 2210180041). “In addition to being legally irrelevant, Amazon’s insinuations are untrue,” said Sailed in response.