Opinion
02 C 8768
February 18, 2003
OPINION
I have considered supplemental briefing on the question of whether to authorize the issuance of papers which will begin the process of obtaining discovery in the People's Republic of China and the Republic of Korea.
The letters sought by plaintiff would, in my view, be issued by any court which considered the matter in light of the complaint which is filed. There are some objections to the form of the letter which I find are not valid and a further objection based on the unlikelihood that the letters will be honored which I find immaterial. One main thrust of the protest against the letters is that this case ought to be dismissed and is filed against at least two defendants over whom personal jurisdiction is disputed. In short, issuing the letters is, in this context, a prejudicial putting of the cart before the horse. This is a close question but I believe that there is a reasonable possibility that this case may be able to go forward against one or more defendants. Moreover, if the case dies here, it will die long before the letters have any practical effect on the parties. No one here denies, and the Court's own experience supports, the proposition that letters issued to China and South Korea are not effectuated with any degree of alacrity. If the case survives, it will be advanced by earlier issuance of the letters. If the case does not move forward, no harm will be done by their issuance absent substantial delay in disposing of the dismissal issues, and I will not permit such delay to occur.
The other main thrust of the objection is the claim, which is supported by evidence, that plaintiff is using the accusations in the lawsuit to inflict commercial damage upon defendants by using the well-worn path of publicity in trade journals. Defendants say that if I order the issuance of the letters then there will be more publicity — fostered by plaintiff — suggesting that "judge rules in favor of Weldbend" or "judge finds good cause to issue letters to obtain evidence against defendants" or "President of Weldband says he is `gratified' by favorable rulings" and so forth. This is, in my view although not in the view of all judges, a valid objection to some motions. But it is not valid here because Weldbend has represented that it will not disseminate copies of the letters beyond its counsel and senior management. I understand that this is a representation by Weldbend that binds not only the company and its officers and employees and includes a pledge not to disseminate the letters or a description of their contents or to claim that by issuing the letters, this court has, in any way, determined that their claims have or may have merit. Indeed, I issue the letters in part because the evidence sought by them may serve to exonerate the defendants rather than support the claims made against them. Based on my understanding of this representation of Weldbend I will issue the letters as now drafted.