7:25-mc-00001
E.D.N.C.May 20, 2025Background
- Novo Nordisk A/S (Novo) filed an ex parte application under 28 U.S.C. § 1782 seeking discovery from Dr. James McCabe, a former KBP employee, for use in related foreign proceedings in Singapore and the Cayman Islands.
- Novo and KBP had an asset purchase agreement (APA) for the drug Ocedurenone, but Novo alleges it was misled about the accuracy of clinical trial results and initiated freezing order proceedings in foreign courts.
- KBP and Dr. McCabe moved to quash the subpoenas and vacate the court's § 1782 order, arguing the discovery is either unnecessary, unduly burdensome, violates confidentiality, or intended primarily for use in private arbitration (where § 1782 does not apply).
- Novo opposes, contending the discovery is properly sought for use in foreign government tribunal proceedings, that any confidentiality concerns can be addressed by protective order, and that Dr. McCabe would not be unduly burdened.
- The court held a telephonic hearing, denied the motions to quash and vacate, and ordered the parties to file a protective order for the deposition.
- The court also granted KBP’s motion to seal certain arbitration documents, finding the need for confidentiality outweighed the public right to access.
Issues
| Issue | Novo's Argument | KBP/Dr. McCabe's Argument | Held |
|---|---|---|---|
| Applicability of § 1782 to discovery for foreign tribunal use | Sought for official foreign court proceedings, not private arbitration | Purpose is arbitration discovery, which § 1782 does not permit | § 1782 applies as discovery is for use in foreign government tribunal; presence of concurrent arbitration is not disqualifying |
| Confidentiality and privileged information | Topics already transferred to Novo under APA; concerns addressed by protective order | Disclosure would violate Dr. McCabe’s confidentiality agreement | Confidentiality concerns can be managed by a court protective order |
| Undue burden on non-party witness | Dr. McCabe has relevant personal knowledge; deposition will be remote and focused | Dr. McCabe lacks access to documents/info, subpoena is overly broad, virtual deposition still burdensome | No undue burden—deposition limited in scope, remote, and focused on personal knowledge |
| Sealing of confidential arbitration documents | Arbitration documents are sensitive and confidential, public access limited | Central agreements require arbitration details remain confidential | Motion to seal granted; confidentiality outweighs public access under common law |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (interpreting the discretionary factors relevant to § 1782 applications)
- ZF Auto. US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022) (holding that § 1782 does not apply to private arbitral tribunals)
- Doe v. Public Citizen, 749 F.3d 246 (4th Cir. 2014) (outlining the standards for sealing court documents and public access)
- Va. Dep’t of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004) (discussing the common law and factors for sealing records)
- Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) (recognizing that competitive harm can justify overriding the public right to court access)