District Judge Lewis Kaplan granted Plaintiff Vringo’s motion to compel information regarding ZTE’s filing of an antitrust action against Vringo in China. ZTE argued that it is prohibited by Article 42 of the Chinese Anti-Monopoly Law “from disclosing any information relating to the [investigation] while that investigation is ongoing.” ZTE’s English translation of the statute read as follows:

“The business operators under investigation, the interested parties or other relevant organizations or individuals shall cooperate with the anti-monopoly law enforcement agency in performing their duties pursuant to the law, and shall not refuse or obstruct the investigation carried out by the anti-monopoly law enforcement agency.”

Judge Kaplan ruled that the statute “quite obviously does not speak in any way to the question whether ZTE may disclose information relating to the investigation, much less whether it may due [sic] so in order to comply with legal process.”

Judge Kaplan further ruled that even if, hypothetically, the Chinese law clearly and unambiguously purported to preclude ZTE from responding to the discovery requests, it would not foreclose an order to compel discovery. In such circumstances, the court should undertake an analysis of the respective interests of the foreign nation and the requesting nation before imposing discovery. In this case, Judge Kaplan noted several factors that “cut very heavily in Vringo’s favor”: (1) the documents and other evidence in question are important to Vringo’s ability to prove its case; (2) ZTE’s opposition to the motion to compel does not suggest that any of the requests were irrelevant or unduly broad; (3) there is no suggestion that Vringo has alternative means of obtaining the information; (4) at least some of the information in question originated in the U.S., or, at any rate, outside of China; and (5) the balance of national interests favors the U.S. because Vringo is a New York citizen, the U.S.’s interests in resolving this matter are strong, and China’s interest in blocking disclosure is at best weak.

Case: Vringo, Inc. v. ZTE Corp., No. 14-CV-4988 (LAK), 2015 BL 157903 (S.D.N.Y. May 14, 2015)