The U.S. Court of Appeals for the Federal Circuit denied a petition for a writ of mandamus to direct the district court to issue a protective order conditionally staying the depositions of petitioners’ CEOs. In re Advanced Micro Devices, Inc., Case No. 07-M847 (Fed. Cir., Mar. 27, 2007) (Prost, J.) (non-precedential).

In a patent infringement suit filed against AMD and others, Tessera sought deposition of AMD’s three CEOs. AMD moved for a protective order on the ground that its CEOs did not have any unique knowledge pertaining to the matter that could not be discovered by less intrusive methods of discovery. A special master denied the motion, and the district court later denied AMD’s objection to the special master’s order. AMD petitioned for a writ of mandamus for an interlocutory review of the district court’s order.

The Federal Circuit denied AMD’s petition. The Court stated that, under precedent of the U.S. Supreme Court, a party seeking a writ of mandamus must bear the burden of proving that it has no other means to attain the desired relief and that its right to issuance of the writ is "clear and indisputable." As the appeal involved a procedural issue not unique to patent law, the Federal Circuit applied the law of the regional circuit in this instance(the Ninth Circuit), which reviews the decision whether to grant a motion for a protective order under the "abuse of discretion" standard.

Quoting the Supreme Court’s Allied Chem. decision, the Federal Circuit held that, "[w]here a matter is committed to [the trial court’s] discretion, it cannot be said that a litigant’s right to a particular result is ‘clear and indisputable.’" The Federal Circuit thus reasoned that because AMD’s petition challenges the district court’s exercise of discretion, AMD could not show that its right to issuance of the writ is clear and indisputable.

Practice Note: In Allied Chem. the Supreme Court suggested in dicta that it might be "appropriate in certain circumstances to use mandamus to review a discretionary order by a trial court."

While non-precedential, this Federal Circuit decision serves as a sobering reminder of the district court’s discretionary power during the discovery process. The Federal Circuit is not likely to intervene in discovery disputes, even for the most intrusive discovery requests or discovery obviously designed to harass.

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