Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, LLC, First Quality Products, Inc., First Quality Retail…

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

KIMBERLY-CLARK WORLDWIDE, INC.,
Plaintiff-Petitioner,
v.
FIRST QUALITY BABY PRODUCTS, LLC, FIRST
QUALITY PRODUCTS, INC., FIRST QUALITY
RETAIL SERVICES, LLC, AND FIRST QUALITY
HYGIENIC, INC.,
Defendants-Respondents.

Miscellaneous Docket No. 957

On Petition for Permission to Appeal pursuant to 28
U.S.C. § 1292(b) from the United States District Court for
the Middle District of Pennsylvania case no. 09-CV-1685,
Judge William W. Caldwell.

ON PETITION

Before GAJARSA, FRIEDMAN, and MOORE, Circuit Judges.
GAJARSA, Circuit Judge.

ORDER

Kimberly-Clark Worldwide, Inc. (Kimberly-Clark)
petitions for permission to appeal orders certified by the

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United States District Court for the Middle District of
Pennsylvania as ones involving a controlling issue of law
as to which there is substantial ground for difference of
opinion and for which an immediate appeal may
materially advance the ultimate termination of the
litigation. First Quality Baby Products, LLC et al. (First
Quality) opposes. Kimberly-Clark replies.

This petition stems from a patent infringement suit
brought by Kimberly-Clark against First Quality that
remains pending before the United States District Court
for the Middle District of Pennsylvania. First Quality
sought discovery of certain documents produced by
Kimberly-Clark during several alternative dispute
resolution proceedings between Kimberly-Clark and a
third party. Kimberly-Clark objected, asserting that the
documents were privileged under the "federal mediation
privilege." First Quality sought an order compelling
discovery of those documents.

The District Court recognized the federal mediation
privilege, but held that although documents arising from
"mediation" proceedings were privileged, other documents
arising from "arbitration" proceedings were discoverable.
In a separate order, the District Court certified its
discovery ruling for permissive appeal pursuant to 28
U.S.C. § 1292(b). Ultimately, this court must exercise its
own discretion in deciding whether it will grant
permission to appeal interlocutory orders certified by a
trial court. See In re Convertible Rowing Exerciser Patent
Litigation, 903 F.2d 822 (Fed. Cir. 1990); 28 U.S.C. §
1292(c)(1). We determine that granting the petition in
these circumstances is warranted.

Accordingly,
IT IS ORDERED THAT:

The petition for permission to appeal is granted.

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KIMBERLY-CLARK v. FIRST QUALITY
FOR THE COURT

JAN 10 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Constantine L. Trela, Jr., Esq.
D. Michael Underhill, Esq.

s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JAN 10 2011

JAN HORBALY
CLERK