Before the Court is the Ex Parte Petition of Thales DIS AIS Deutschland GmbH for an Order Permitting Discovery for Use in Foreign Proceedings Under 28 U.S.C. § 1782 (“Petition”) [ECF No. 1]. Having considered the Petition, its various attachments, and Petitioner's memorandum of law in support [ECF No. 2], the Court GRANTS the Petition.

Petitioner Thales DIS AIS Deutschland GmbH Legal (“Petitioner”) seeks an order authorizing it to serve Avanci LLC (“Avanci”) with a subpoena to obtain discovery for use in litigation pending in Munich Regional Court in Germany (“German Litigation”). Avanci is a licensing entity based in Dallas, Texas made up of numerous telecommunications companies, including Nokia, Ericsson, InterDigital, and Qualcomm. Mem. 4. Avanci negotiates licenses to patents owned by its member entities on their behalf. Id. Many of these patents have been deemed essential to the 2G, 3G, and 4G network standards, as determined by the European Telecommunications Standards Institute (“ETSI”). Id. at 4-5. Avanci's member entities purportedly own nearly 70% of such “essential patents.” Id.

Petitioner is a German technology company that manufactures wireless communication components, including Network Access Device modules (“NAD modules”), that are certified to comply with ETSI standards. Id. at 1, 3-4. NAD modules provide network connectivity to a wide array of products, including automobiles. Id. at 3-4.

The German Litigation concerns Avanci's licensing practices. Id. at 8-9. Petitioner alleges that Avanci has orchestrated a strategy of licensing its patents only to downstream automobile manufacturers, instead of upstream component manufacturers (such as Petitioner). Id. at 5-9. According to Petitioner, this allows Avanci to charge licensing fees that exceed the Fair, Reasonable, and Non-Discriminatory (“FRAND”) terms that ETSI participants are required to offer for essential patents under the European Commission's Horizontal Agreements Guidelines. Id. at 6-7. Petitioner asserts that these actions violate European antitrust laws, specifically Articles 101 and 102 of the Treaty on the Functioning of the European Union. Id. at 9. Petitioner here seeks the Court's authorization under 28 U.S.C. § 1782 to subpoena Avanci for nine categories of documents which Petitioner argues relate to its claims in the German Litigation.

Section 1782(a) authorizes district courts to provide judicial assistance regarding a matter in a foreign tribunal. The statute provides, in relevant part:

Id. Accordingly, an application made pursuant to § 1782 must satisfy three statutory requirements: “(1) the person from whom discovery is sought must reside or be found in the district in which the application is filed; (2) the discovery must be for use in a proceeding before a foreign tribunal; and (3) the application must be made by a foreign or international tribunal or any interested person.” Bravo Express Corp. v. Total Petrochemicals & Ref. U.S., 613 F. App'x. 319, 322 (5th Cir. 2015) (internal quotations omitted).

However, the Court is “not required to grant a § 1782(a) discovery application simply because it has the authority to do so.” Intel Corp. v. Advanced Micro Devices Inc., 542 U.S. 241, 264 (2004). “[O]nce an interested party makes the requisite showing that it has met the statutory factors, the district court judge has the discretion to grant the application seeking the authority to issue subpoenas.” Tex. Keystone, Inc. v. Prime Natural Res., Inc., 694 F.3d 548, 553 7 n.2 (5th Cir. 2012). In exercising its discretion, the Court considers four factors: “(1) whether ‘the person from whom discovery is sought is a participant in the foreign proceeding,’ because ‘nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach’ and therefore their evidence may be ‘unobtainable absent § 1782(a) aid;’ (2) ‘the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance’; (3) ‘whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States’; and (4) whether the § 1782(a) request is ‘unduly intrusive or burdensome.’ ” Bravo Express, 613 F. App'x. at 323-24 (quoting Intel, 542 U.S. at 264–65); see also Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 377 (5th Cir. 2010).

Ex parte filing of an application for discovery under 28 U.S.C. § 1782 is permissible. In re Application of Eurasian Bank Joint Stock Co. for Expedited Judicial Assistance Pursuant to 28 U.S.C. § 1782, 3:15-MC-106-L-BN, 2015 WL 6438256, at *1 (N.D. Tex. Oct. 21, 2015); Gushlak v. Gushlak, 486 F. App'x 215, 217 (2d Cir. 2012) (explaining that “it is neither uncommon nor improper for district courts to grant applications made pursuant to § 1782 ex parte” and that “[t]he respondent's due process rights are not violated because he can later challenge any discovery request by moving to quash pursuant to Federal Rule of Civil Procedure 45(c)(3)”); In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976) (Applications for foreign judicial assistance are “customarily received and appropriate action taken ... ex parte” because respondents can raise objections by motions to quash subpoenas.).

Petitioner satisfies § 1782's statutory requirements. First, Petitioner has shown that Avanci is “found” in the Northern District of Texas. Avanci maintains its principal place of business in Dallas, Texas. Petition Ex. D at 1; see also BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017) (A corporate defendant is “at home” in the forum where its principal place of business is located.); In re del Valle Ruiz, 939 F.3d 520, 528 (2d Cir. 2019) (“§ 1782's ‘resides or is found’ language extends to the limits of personal jurisdiction consistent with due process.”). Second, the discovery sought by Petitioner is for use in foreign proceedings. The German Litigation is before the Munich Regional Court, which is a foreign tribunal. See Intel, 524 U.S. at 264; Bravo, 613 F. App'x at 322-23. Third, Petitioner qualifies as an “interested person” in a “foreign proceeding” because it is the claimant in the German Litigation. See Intel, 542 U.S. at 256 (“No doubt litigants are included among, and may be the most common example of, the ‘interested person[s]’ who may invoke § 1782.”).

The Court also finds that the Intel factors weigh in favor of the Court exercising its discretion to authorize service of the requested subpoena. As to the first discretionary factor, the Supreme Court observed in Intel that, “when the person from whom discovery is sought is a participant in the foreign proceeding ..., the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence.” Id. at 264. However, “[t]here is ... no rule that [§] 1782 applications can only be granted where the party from whom discovery is sought is not a party to the foreign proceeding.” Palantir Techs., Inc. v. Abramowitz, 415 F. Supp. 3d 907, 912 (N.D. Cal. 2019). Instead, “respondent's connection to the foreign proceeding is part of a broader inquiry: whether the discovery is outside the foreign tribunal's jurisdictional reach, and thus unobtainable absent § 1782(a) aid.” LEG Q LLC v. RSR Corp., No. 3:17-CV-1559-N-BN, 2017 WL 3780213, at *8 (N.D. Tex. Aug. 31, 2017) (internal quotation marks and citations omitted). Nor does § 1782 require an applicant to seek discovery in the foreign jurisdiction before seeking the assistance of a district court. Id. Petitioner has shown that the discovery it seeks likely cannot be obtained in the German Litigation. For example, Petitioner offers evidence that production of documents in German civil lawsuits is limited to documents that can be specifically identified, rather than categories of documents that are relevant to the litigation. Mot. 13 (citing Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 596 (7th Cir. 2011); Decl. of Dr. Markus Wirtz (“Wirtz Decl.”) [ECF No. 1-1] ¶¶ 11-17. Likewise, Petitioner presents evidence that at least calls into question the ability of German courts to compel production of documents not located in Germany. Wirtz Decl. ¶¶ 18-19.

With respect to the second discretionary factor, a district court should deny discovery based on lack of receptiveness of the foreign tribunal only where it is provided with “authoritative proof that [the] foreign tribunal would reject evidence [obtained with the aid of § 1782].” Ecuadorian Plaintiffs, 619 F.3d at 378. Here, Petitioner has provided just the opposite: evidence that German courts are often receptive to § 1782 evidence. See Wirtz Decl. ¶¶ 20-23; Mot. 15 (citing, inter alia, Kang v. Nova Vision, Inc., No. 06-21575-CIV-MORENO, 2007 WL 1879158, at *2 (S.D. Fla. June 26, 2007) (“[T]here exists a substantial amount of case law where courts have found that German commercial courts are an appropriate forum for § 1782 assistance ....”).

Regarding the third discretionary factor, nothing suggests that the Petition conceals an attempt to circumvent proof-gathering restrictions or other policies, as evidenced by the likelihood that German courts will accept discovery obtained using § 1782 assistance. Finally, the Court finds that the proposed subpoena is sufficiently narrowly tailored and not unduly intrusive or burdensome. The nine categories of documents Petitioner seeks are all directly related to the claims asserted in the German litigation. Section 1782 is thus an effective mechanism for obtaining the targeted discovery sought by Petitioner.

Accordingly, “informed by the twin aims of the statute, which are to provide efficient means of assistance [in our federal courts] to participants in international litigation ... and to encourage foreign countries by example to provide similar means of assistance to our courts,” Bravo Express, 613 F. App'x at 321 (internal quotation marks omitted), the Court exercises its discretion to grant the Petition.

For the reasons discussed above, the Ex Parte Petition of Thales DIS AIS Deutschland GmbH for an Order Permitting Discovery for Use in Foreign Proceedings Under 28 U.S.C. § 1782 is GRANTED. The Court therefore ORDERS that Thales DIS AIS Deutschland GmbH is authorized pursuant to 28 U.S.C. § 1782 to issue a subpoena to Avanci LLC in form attached as Exhibit A to the Petition.

SO ORDERED.