Not So Fast! Qualcomm Cannot Use "Curious Quirk" Of U.S. Discovery Law In Korean Antitrust Proceeding

A recent federal court order highlights the scope, and the limitations, of a U.S. court's authority to order domestic discovery for use in a foreign proceeding under 28 U.S.C. § 1782. The court in In re Ex Parte Application of Qualcomm Incorporated rejected Qualcomm's Section 1782 applications to subpoena a host of U.S. technology giants for information to use in Qualcomm's defense of a Korea Fair Trade Commission ("KFTC") proceeding.

In the fall of 2015, Qualcomm received an Examiner's Report from the KFTC charging it with violations of South Korean antitrust law. The Report referenced information received from at least seven U.S. technology companies.

Qualcomm filed ex parte applications under 28 U.S.C. § 1782 to serve document and deposition subpoenas on the U.S. companies. Qualcomm argued that the Examiner's Report cited information provided by each of the companies and discovery from them was needed for Qualcomm's defense in the KFTC. Qualcomm sought all