in Re First Quality Baby Products, LLC, First Quality Products, Inc., First Quality… v. KIMBERLY-CLARK WORLDWIDE, INC." -- vania to allow First Quality to take additional…

# NOTE: This order is nonprecedential.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

IN RE FIRST QUALITY BABY PRODUCTS, LLC,
FIRST QUALITY PRODUCTS, INC., FIRST
QUALITY RETAIL SERVICES, LLC, AND FIRST
QUALITY HYGIENIC, INC.,
Petitioners.

Miscellaneous Docket No. 122

On Petition for Writ of Mandamus to the United States
District Court for the Middle District of Pennsylvania in
case no. 09-CV-1685, Judge William W. Caldwell.

ON PETITION

Before PROST, MAYER and REYNA, Circuit Judges.
PROST, Circuit Judge.

ORDER

First Quality Baby Products, LLC, First Quality
Products, Inc., First Quality Retails Services, LLC, and
First Quality Hygienic, Inc. ("First Quality") submit a
petition for a writ of mandamus to direct the United
States District Court for the Middle District of Pennsyl-

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vania to allow First Quality to take additional deposi-
tions.

This petition arises out of a suit filed by Kimberly-
Clark Worldwide, Inc., ("Kimberly-Clark") against First
Quality for patent infringement. In 2010, First Quality
moved to compel production of discovery relating to
several alternative dispute resolution matters that in-
volved Kimberly-Clark and other non-parties to the
underlying litigation. The district court granted the
motion. The court denied Kimberly-Clark's motion for
reconsideration but certified the issue of the scope of the
mediation privilege, asserted by Kimberly-Clark, for
interlocutory appeal. On November 15, 2011, this court
held that the district court did not abuse its discretion in
finding that Kimberly-Clark had failed to show that a
privilege shielded the requested information from discov-
ery and affirmed the district court's order.

Relevant to this petition, following our ruling on the
privilege issue, First Quality sought leave to take up to
eleven additional depositions (in excess of the 20 the
district court had already permitted). The district court
denied this request but extended the fact discovery dead-
line forty-five days.

The petitioners now seek a writ of mandamus. The
remedy of mandamus is available only in extraordinary
situations to correct a clear abuse of discretion or usurpa-
tion of judicial power. In re Calmar, Inc., 854 F.2d 461,
464 (Fed. Cir. 1988). A party seeking a writ bears the
burden of proving that it has no other means of attaining
the relief desired, Mallard v. U.S. Dist. Court for S. Dist.
of Iowa, 490 U.S. 296, 309 (1989), and that the right to
issuance of the writ is "clear and indisputable," Allied
Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).

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FIRST QUALITY BABY PRODUCTS V. KIMBERLY-CLARK
WORLDWIDE, INC.
"That a petitioner may suffer hardship, inconvenience, or
an unusually complex trial does not provide a basis for a
court to grant mandamus." In re Roche Molecular Sys.,
Inc., 516 F.3d 1003, 1004 (Fed. Cir. 2008) (citing United
States v. Watson, 603 F.2d 192, 195 (C.C.P.A.1979)). This
exacting standard has not been met here. The petitioners
can obtain adequate and meaningful relief from the
discovery order on appeal after final judgment. Thus, the
court determines that the petitioners have not met their
burden to obtain a writ of mandamus.

Accordingly,

IT IS ORDERED THAT:

The petition is denied.

FOR THE COURT

AUG 10 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Kenneth P. George, Esq.
Andrew G. Klevorn, Esq.
Clerk, United States District Court for the Middle
District of Pennsylvania
$25

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
AUG 10 2012
JAN HORBALY
CLERK