Cpc Patent Techs. Pty Ltd. v. Apple, Inc. ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CPC PATENT TECHNOLOGIES PTY No. 21-16212
LTD.,
Petitioner-Appellant, D.C. No.
5:21-mc-80091-
v. JST
APPLE, INC.,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted April 11, 2022
San Francisco, California
Filed May 18, 2022
Before: MILAN D. SMITH, JR., JACQUELINE H.
NGUYEN, and DANIEL A. BRESS, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 CPC PATENT TECH. V. APPLE
SUMMARY *
Magistrate Judge Jurisdiction / Application to
Compel Discovery
The panel vacated a district judge’s order declining to
overturn a magistrate judge’s denial of CPC Patent
Technologies PTY Ltd.’s application pursuant to 28 U.S.C.
§ 1782 to compel Apple, Inc. to turn over documents, which
CPC seeks to use in a potential lawsuit in Germany against
an Apple affiliate, and remanded for further proceedings.
The district judge reviewed the magistrate judge’s
decision for clear error.
Applying 28 U.S.C. § 636(b) and its procedural
counterpart, Federal Rule of Civil Procedure 72, the panel
held that CPC’s § 1782 application was a dispositive matter
because the magistrate judge’s order denied the only relief
sought by CPC in this federal case: court-ordered discovery.
Because both parties did not consent to magistrate judge
jurisdiction, the magistrate judge lacked jurisdiction to enter
an order denying the application, and the district court
should have treated the magistrate judge’s ruling at most as
a non-binding recommendation subject to de novo review.
The panel therefore remanded for the district court to apply
the correct standard of review, and left it to the district court
to determine whether the case would benefit from further
analysis and review by the magistrate judge.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CPC PATENT TECH. V. APPLE 3
COUNSEL
Christina N. Goodrich (argued), K&L Gates LLP, Los
Angeles, California; George Summerfield, K&L Gates LLP,
Chicago, Illinois; for Petitioner-Appellant.
Tony Nguyen (argued), Fish & Richardson P.C., Houston,
Texas; Seth M. Sproul and John W. Thornburgh, Fish &
Richardson P.C., San Diego, California; Eda Stark, Fish &
Richardson P.C., Atlanta, Georgia; for Respondent-
Appellee.
OPINION
M. SMITH, Circuit Judge:
Appellant CPC Patent Technologies PTY Ltd. seeks
documents to use in a potential lawsuit in Germany against
an affiliate of appellee Apple, Inc. CPC filed an application
in federal court seeking to compel Apple to turn over these
documents pursuant to 28 U.S.C. § 1782, which allows
district courts to provide discovery assistance to foreign or
international tribunals. After a magistrate judge denied the
petition, a district judge reviewed the magistrate judge’s
decision for clear error and declined to overturn it. We
vacate the district court’s order and remand for further
proceedings because the district judge should have reviewed
the magistrate judge’s decision de novo.
BACKGROUND
I. Statutory Framework
This case addresses how the construction of one federal
statute impacts the application of a second federal statute.
4 CPC PATENT TECH. V. APPLE
The first statute is 28 U.S.C. § 636, which describes the
limited powers of federal magistrate judges.
Section 636(b)(1) and its procedural counterpart, Federal
Rule of Civil Procedure 72, create a distinction between
“non-dispositive” pretrial motions that may be referred to a
magistrate judge for a decision and “case-dispositive
motions” that “may be referred only for evidentiary hearing,
proposed findings, and recommendations” to the district
court unless the parties agree otherwise. Flam v. Flam,
788 F.3d 1043, 1046 (9th Cir. 2015) (quoting United States
v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (en
banc)). 1 When a magistrate judge rules on a non-dispositive
matter, a district judge may “reconsider” that ruling only if
it is “clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A); accord Fed. R. Civ. P. 72(a). But when a
magistrate judge issues a report and recommendation on a
dispositive matter, a district judge must “make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3).
The second statute at issue here is 28 U.S.C. § 1782,
which empowers a district court to provide discovery
assistance to foreign or international tribunals, as well as to
litigants in such proceedings. As relevant here, the statute
states that:
The district court of the district in which a
person resides or is found may order him to
1
A magistrate judge may rule on dispositive matters and enter
judgment with the parties’ consent, in which case the magistrate judge’s
order is directly appealable to the proper court of appeals in the same
manner as a district judge’s order would be. 28 U.S.C. §§ 636(c)(1) &
(c)(3). However, it is undisputed that the magistrate judge here lacked
consent from the parties to rule on dispositive matters.
CPC PATENT TECH. V. APPLE 5
give his testimony or statement or to produce
a document or other thing for use in a
proceeding in a foreign or international
tribunal, including criminal investigations
conducted before formal accusation. The
order may be made . . . upon the application
of any interested person and may direct that
the testimony or statement be given, or the
document or other thing be produced, before
a person appointed by the court. . . . The
order may prescribe the practice and
procedure . . . for taking the testimony or
statement or producing the document or other
thing.
28 U.S.C. § 1782(a). “[E]ven where an applicant satisfies
§ 1782’s statutory prerequisites, the district court still retains
substantial discretion to permit or deny the requested
discovery.” Khrapunov v. Prosyankin, 931 F.3d 922, 926
(9th Cir. 2019). The threshold question in this case is
whether a magistrate judge’s denial of a § 1782 application
that seeks an order to produce documents for use in a foreign
tribunal is better understood as a non-dispositive discovery
ruling or a case-dispositive decision.
II. Factual and Procedural Background
CPC is an investment company that recently acquired a
portfolio of patents related to biometric security. In
February 2021, it sued Apple in the Western District of
Texas, alleging that several Apple products (including
“iPhones, iPads, and personal computers”) infringe patents
in the portfolio.
6 CPC PATENT TECH. V. APPLE
Two months later, CPC filed a petition for discovery
pursuant to § 1782 in the Northern District California. CPC
explained that it “intends to file suit . . . against Apple Retail
Germany B.V. & Co. KG in Germany” for infringing the
German equivalent of a patent asserted in the Texas action,
and asked for an order requiring Apple, Inc. to produce
documents “sufficient to describe” certain subject matter on
that basis. The matter was assigned to a magistrate judge
pursuant to the Northern District of California’s General
Order No. 44(E)(3), 2 which provides that “all civil
miscellaneous matters” will be assigned to a magistrate
judge by default. The magistrate judge denied CPC’s
petition, explaining that while CPC had satisfied § 1782’s
statutory prerequisites, 3 its fifteen document requests were
unduly burdensome. The magistrate judge also said that he
was reluctant to order discovery given that Apple and CPC
were “currently engaged in litigation” in the Western District
of Texas, meaning that they were “able to discuss and
negotiate information sharing in an already established
venue.”
CPC moved for de novo review of the magistrate judge’s
order by a district judge pursuant to Federal Rule of Civil
Procedure 72. The district judge denied the motion in a brief
order, determining at the outset that the clear error standard
2
Available at https://www.cand.uscourts.gov/wp-
content/uploads/general-orders/GO_44_01-01-2018.pdf.
3
An interested person or entity may file a § 1782 application even
if the relevant foreign proceedings are not “pending” or “imminent,” so
long as the proceedings are “within reasonable contemplation.” Intel
Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 259 (2004). The
magistrate judge concluded that CPC’s stated intent to use the discovery
sought in its § 1782 application to “initiate a lawsuit in Germany”
satisfied this standard. That determination is not at issue in this appeal.
CPC PATENT TECH. V. APPLE 7
of review applied instead of a de novo standard, and
concluding that the magistrate judge’s order withstood
scrutiny under this framework.
ANALYSIS
We hold that the magistrate judge was deciding a
dispositive matter when he denied CPC’s § 1782
application. Consequently, the district judge should have
reviewed the magistrate judge’s findings de novo rather than
applying the deferential clear-error standard of review. 4
I. Appellate Jurisdiction
As a preliminary matter, the parties agree that we have
appellate jurisdiction over this case pursuant to 28 U.S.C.
§ 1291. Nonetheless, we briefly analyze the basis for our
jurisdiction because we have an independent duty to do so,
see, e.g., Bank of New York Mellon v. Watt, 867 F.3d 1155,
1157 (9th Cir. 2017), and because the analysis provides a
useful reference point for our later discussion about the
proper standard of review.
28 U.S.C. § 1291 vests federal courts of appeal with
jurisdiction over “all final decisions of the district courts.”
A “final” decision is one “that places the parties ‘effectively
out of [federal] court.’” Cal. Dep’t of Water Res. v. Powerex
Corp., 533 F.3d 1087, 1094 (9th Cir. 2008) (quoting Idlewild
Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n.2
(1962) (per curiam)); see also id. (“‘effectively out of court’
4
To the extent Apple invites us to do so, we decline to speculate that
the district judge really reviewed the magistrate judge’s order de novo:
the district judge expressly concluded that the clear error standard
applied, mentioned the standard throughout the order, and indicated that
he was required to defer to the magistrate judge’s judgment.
8 CPC PATENT TECH. V. APPLE
means effectively out of federal court” (cleaned up)). This
test is satisfied when “the district court disassociates itself
from the case entirely, retaining nothing of the matter on the
federal court’s docket.” Snodgrass v. Provident Life & Acc.
Ins. Co., 147 F.3d 1163, 1166 (9th Cir. 1998) (quoting
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714 (1996));
accord Powerex, 533 F.3d at 1096; see also Dannenberg v.
Software Toolworks Inc., 16 F.3d 1073, 1074 (9th Cir. 1994)
(“A final [decision] under § 1291 is ‘a decision by the
District Court that ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’”
(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467
(1978)).
Consistent with these standards, most federal courts of
appeals to have considered the matter “have ruled that they
have appellate jurisdiction over orders issued under § 1782”
pursuant to § 1291 “without qualification or exception.” In
re Premises Located at 840 140th Ave. NE, Bellevue, Wash.,
634 F.3d 557, 566 (9th Cir. 2011) (collecting cases). That is
because, unlike an ordinary discovery order that is just one
step in an ongoing federal case, “[o]nce the district court has
ruled on the parties’ [§ 1782] motion[] . . . there is no further
case or controversy before the district court.” Id. We have
no difficulty concluding that appellate jurisdiction exists
here pursuant to the general rule. The only relief sought by
CPC in this federal case was court-ordered discovery
pursuant to § 1782. When the magistrate judge denied this
relief and the district judge affirmed the denial, 5 there were
5
Because we conclude in Part II that the magistrate judge’s decision
had no binding force, and that the district court should have considered
de novo whether discovery was warranted under § 1782, the relevant
“final decision” for our purposes is the district judge’s order rather than
the magistrate judge’s decision. See also Phillips v. Beierwaltes,
CPC PATENT TECH. V. APPLE 9
no further issues for the federal court to resolve, and so the
district court’s order was “final.”
We note that the Ninth Circuit has taken a slightly “less
absolute” approach to appellate jurisdiction over § 1782
orders than do other circuits, recognizing a “narrow”
exception to the general rule articulated above when a
§ 1782 application for a subpoena is granted and the
subpoena is issued to a party that is also a litigant in the
foreign proceeding. Id. at 566–67. “[W]hen the subject of
[a § 1782] subpoena in the federal case is also a party to the
foreign litigation . . . [a]ppellate jurisdiction lies only if the
interested party suffers contempt” for disobeying the
subpoena. Id. at 567 (citing In re Letters Rogatory from
Haugesund, Norway, 497 F.2d 378, 380–81 (9th Cir. 1974)).
However, that exception does not logically extend to cases
such as this where the court declined to issue a discovery
order that could later be disobeyed. Consequently, the
general rule applies, and we have appellate jurisdiction.
II. Proper Standard of Review
As explained above, the standard of review a district
court must apply to the denial of a § 1782 application turns
on whether the magistrate judge’s decision was dispositive
within the meaning of 28 U.S.C. § 636. The parties have not
directed us to any published decision by a federal court of
appeals directly addressing this question. 6 CPC’s opening
466 F.3d 1217, 1222 (10th Cir. 2006) (“Whether the magistrate judge’s
order to compel discovery was dispositive or non-dispositive in this
unusual proceeding under 28 U.S.C. § 1782, it was not a final appealable
order until the district court acted on it.”).
6
CPC’s opening brief claimed that the Second Circuit has
“recognized that an order on a § 1782 petition is a dispositive ruling,”
10 CPC PATENT TECH. V. APPLE
brief relied heavily on a separate opinion by a member of our
court, Judge Callahan, concluding that a motion to quash a
§ 1782 subpoena is a case-dispositive matter. See
Khrapunov v. Prosyankin, 931 F.3d 922, 931 & n.3 (9th Cir.
2019) (Callahan, J., concurring in the judgment and
dissenting).
Having considered the issue independently, we agree
with the relevant portions of Judge Callahan’s analysis, 7 and
conclude that the district court should have treated the
magistrate judge’s order as a non-binding recommendation
and applied the de novo standard of review. See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b).
citing Chevron Corp. v. Berlinger, 629 F.3d 297, 306 (2d Cir. 2011).
However, Berlinger held only that “an order granting or denying
discovery” under § 1782 is an appealable final decision pursuant to 28
U.S.C. § 1291. 629 F.3d at 306. It did not address whether such an order
is dispositive, or even involve a magistrate judge at all. As for Apple, its
answering brief claimed that our court has already spoken to the proper
standard of review in § 1782 cases. That is incorrect for the reasons
given in Part II.c of this opinion, and Apple admitted at oral argument
that we are faced with “a case of first impression.”
7
CPC and Apple disagree as to what label (and, by implication,
authoritative weight) we should apply to Judge Callahan’s separate
opinion. What matters for our purposes is that the relevant portions of
Judge Callahan’s opinion did not conflict with the majority opinion,
which did not address the issue we resolve today. See Khaprunov,
931 F.3d at 923, 925–26 (vacating and remanding for further fact-finding
without discussing standard of review); see also id. at 926 (N.R. Smith,
J., concurring) (stating that Judge Callahan’s separate opinion “about an
issue of first impression does not directly bear on our resolution and
demands no substantive response”). This means that we are not
foreclosed from considering the validity of her reasoning.
CPC PATENT TECH. V. APPLE 11
a. Determining Whether a Matter is “Dispositive”
As explained previously, a magistrate judge may not
issue binding rulings on case-dispositive matters without the
parties’ consent. Though the statute itself does not use this
terminology, courts have interpreted 28 U.S.C.
§ 636(b)(1)(A) to create a dichotomy between dispositive
and non-dispositive motions or matters. See Flam, 788 F.3d
at 1046. The distinction is now also expressly recognized in
Federal Rule of Civil Procedure 72. Briefly, the rationale for
this categorization is as follows. Section 636(b)(1)(A)
begins by stating that magistrate judges may decide any
“pretrial matter,” and then lists several exceptions, such as
motions for summary judgment, motions for judgment on
the pleadings, motions for class certification, and motions to
suppress evidence in a criminal case. But see also 28 U.S.C.
§ 636(b)(1)(B) (magistrate judge may issue non-binding
report and recommendation on such matters); Fed R. Civ P.
72(b) (same). “The matters listed in 28 U.S.C.
§ 636(b)(1)(A)”—i.e., those that a magistrate judge may not
decide without the parties’ consent—“are dispositive while,
in general, other matters are non-dispositive.” Flam,
788 F.3d at 1046 (citing Fed. R. Civ. P. 72).
“Though the list contained in 28 U.S.C. § 636(b)(1)(A)
appears to be exhaustive . . . the Supreme Court has
identified some judicial functions as dispositive
notwithstanding the fact that they do not appear in the list.
To determine whether a motion is dispositive, [this court
has] adopted a functional approach that looks to the effect of
the motion, in order to determine whether it is properly
characterized as dispositive or non-dispositive of a claim or
defense of a party.” Id. (cleaned up) (noting, for example,
that the Supreme Court has treated jury selection as a
dispositive matter). A decision that effectively denies “the
12 CPC PATENT TECH. V. APPLE
ultimate relief sought” by a party or disposes of “any claims
or defenses” is dispositive. SEC v. CMKM Diamonds, Inc.,
729 F.3d 1248, 1260 (9th Cir. 2013).
b. Application of the Functional Test
We conclude that CPC’s § 1782 application was a
dispositive matter because the magistrate judge’s order
denied the only relief sought by CPC in this federal case:
court-ordered discovery. See id. at 1260. We acknowledge
that pretrial discovery disputes are routinely resolved by
magistrate judges in other contexts. However, this appeal
presents an atypical situation. Usually, when a magistrate
judge rules on a discovery matter, the discovery sought is
part of an ongoing civil case in that same federal court for
monetary damages, injunctive relief, or the like. Conversely,
here we deal with a “freestanding subpoena request” that
“was filed on its own and not in conjunction with” another
federal lawsuit. In re DMCA Subpoena to Reddit, Inc., 441
F. Supp. 3d 875, 879 (N.D. Cal. 2020) (holding such a
request under the Digital Millennium Copyright Act was a
dispositive matter); cf. Khrapunov, 931 F.3d at 932
(Callahan, J., concurring in the judgment and dissenting)
(citing Third, Fourth, Fifth, and Eighth Circuit cases holding
that “a ruling on a motion to enforce an administrative
subpoena” issued pursuant to 29 U.S.C. § 161 “is
dispositive”). A ruling on such a request necessarily
disposes of “the ultimate relief sought” in the federal case.
CMKM Diamonds, 729 F.3d at 1260.
It is hard to see how we could reconcile a contrary
holding with our earlier holding that we have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. Just as an order
denying a § 1782 application for discovery is “final” in the
sense of resolving the entire case presented to the federal
court, such an order rules on a “dispositive matter” by
CPC PATENT TECH. V. APPLE 13
denying “the ultimate relief sought” in the federal case,
CMKM Diamonds, 729 F.3d at 1260, namely the issuance of
an order to produce documents. Cf. Flam, 788 F.3d at 1047
(analogizing test for dispositive motion to test for finality).
The foregoing analysis properly focuses only on the
proceedings in federal court: our precedents indicate that we
must treat CPC’s § 1782 application as dispositive of the
federal court proceedings, and not as merely ancillary to the
contemplated proceedings in Germany. As with our earlier
discussion concerning the definition of a “final decision” for
appellate jurisdiction purposes, we have made clear in cases
such as Flam that only the proceedings in federal court are
relevant to determining whether a matter is case-dispositive.
Flam held that a motion to remand a case to state court is a
dispositive matter under this court’s functional test
“[b]ecause a . . . remand order is dispositive of all federal
proceedings in a case.” 788 F.3d at 1047 (emphasis added);
cf. Harmston v. City & Cnty. of San Francisco, 627 F.3d
1273, 1278–79 (9th Cir. 2010) (a remand order is an
appealable final decision for purposes of § 1291 because it
concludes the proceedings in federal court). Conversely, a
motion to transfer a case from one federal district court to
another is a non-dispositive matter. See In re U.S. Dep’t of
Educ., 25 F.4th 692, 699 (9th Cir. 2022). It would be
inconsistent to treat the denial of court-ordered discovery
pursuant to § 1782 as merely ancillary to a foreign
proceeding when a remand to state court is not treated that
way. Both orders effectively cut off all avenues for relief in
federal court, even if they leave major substantive issues to
be determined by other tribunals.
Consequently, CPC’s application for court-ordered
discovery pursuant to § 1782 was a dispositive matter.
Because both parties did not consent to magistrate judge
14 CPC PATENT TECH. V. APPLE
jurisdiction, the magistrate judge here lacked authority to
issue a binding ruling that denied the application.
c. Apple’s Remaining Counterarguments
Apple’s two remaining counterarguments against this
result are unpersuasive. First, Apple directs us to Four
Pillars Enterprises Co. v. Avery Dennison Corp., which
reviewed a magistrate judge’s order denying relief under
§ 1782 for abuse of discretion. See 308 F.3d 1075, 1078 (9th
Cir. 2002). Apple argues that Four Pillars’s application of
the abuse of discretion standard to a magistrate judge’s order
(as opposed to the district judge’s order affirming it) implies
that “the magistrate judge’s order is not treated as a mere
recommendation subject to de novo review.”
However, as Apple effectively conceded at oral
argument, Four Pillars “did not decide, let alone consider,
the issue presented here—whether rulings on § 1782
applications are dispositive.” Khrapunov, 931 F.3d at 933
(Callahan, J., concurring in the judgment and dissenting).
As Judge Callahan previously explained, Four Pillars “had
no occasion to consider the issue because the appellant did
not raise it. Instead, the appellant argued only that the
magistrate judge abused his discretion in denying the
discovery, implicitly conceding that the magistrate judge
was authorized to decide its discovery request under
§ 1782.” Id.; see Four Pillars, 308 F.3d at 1078 (applying
abuse of discretion standard without analyzing whether
magistrate judge’s order was dispositive). Consequently,
Four Pillars is not binding or even instructive. 8 See, e.g.,
8
We are unpersuaded by the non-binding district court decisions
cited by Apple that have read Four Pillars as indicating that rulings on
§ 1782 applications are non-dispositive. See Snowflake Inc. v. Yeti Data,
CPC PATENT TECH. V. APPLE 15
Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288
(9th Cir. 1985) (“[U]nstated assumptions on non-litigated
issues are not precedential holdings binding future
decisions.”).
Second, Apple argues that a § 1782 order does not rule
on a dispositive matter because there may still be other issues
for the court to rule on afterward. “For example,” Apple’s
brief says, “the subpoenaed party may object to the subpoena
as a whole and file a motion to quash. . . . As another
example, . . . the parties may disagree as to the proper scope
of the subpoena’s requests and may ask the magistrate judge
for a ruling on the correct scope.”
Assuming arguendo that these examples bear on this
case—where the district court declined to issue a subpoena
requiring enforcement or clarification—the problem for
Apple is that the examples involve proceedings that are just
incidental to the underlying discovery order. They can be
likened to post-judgment proceedings in an ordinary civil
case, such as a motion for relief from the judgment pursuant
to Federal Rule of Civil Procedure 60, or a Rule 59(e) motion
to alter or amend a judgment. The possibility of these later
challenges does not negate the dispositive nature of the
Inc., No. 20-MC-80190-EMC, 2021 WL 1056550, at *3 (N.D. Cal. Mar.
18, 2021); In re Application Pursuant to 28 U.S.C. § 1782 by Nikon
Corp., No. 17-MC-80071-BLF, 2017 WL 4647753, at *2 (N.D. Cal. Oct.
16, 2017) (Nikon); In re Application of Rainsy, No. 16-MC-80258-DMR,
2017 WL 528476, at *1 n.1 (N.D. Cal. Feb. 9, 2017). These decisions
overread Four Pillars in the same way that Apple has, citing each other
for support and providing little independent analysis of how to apply our
court’s functional test. See Rainsy, 2017 WL 528476, at *1 n.1 (citing
Four Pillars and concluding in a single sentence that a § 1782
application “appears” to be non-dispositive); Nikon, 2017 WL 4647753,
at *2 (citing Rainsy, 2017 WL 528476, at *1 n.1); Snowflake, 2021 WL
1056550, at *3 (citing Nikon, 2017 WL 4647753, at *2).
16 CPC PATENT TECH. V. APPLE
dismissal, summary judgment, or other motion leading to the
judgment. See 28 U.S.C. § 636(b)(1)(A) (listing motions a
magistrate judge lacks authority to rule on); Fed. R. Civ. P.
72(b)(1) (same, and labeling these “dispositive”); see also
Khrapunov, 931 F.3d at 933 (Callahan, J. concurring in the
judgment and dissenting) (“[Appellant] argues that the
denial of a motion to quash in a § 1782 proceeding is non-
dispositive because the prospect of additional litigation
remains if, for example, the subpoenaed party fails to
comply with the court’s order. But that possibility exists in
virtually all cases, even after the entry of a final judgment.”).
CONCLUSION
CPC’s application for discovery relief pursuant to
§ 1782 presented a dispositive matter for decision. Because
the magistrate judge lacked the consent of the parties to rule
on such matters, he lacked jurisdiction to enter an order
denying the application, and the district court should have
treated the magistrate judge’s ruling at most as a non-binding
recommendation subject to de novo review. See 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(b). For that reason, we
vacate the district court’s decision and remand so that the
district court can apply the correct standard of review. See,
e.g., Mitchell v. Valenzuela, 791 F.3d 1166, 1173–74 (9th
Cir. 2015) (remanding without inquiry into harmlessness to
allow district court to apply correct standard of review to
magistrate judge decision); Flam, 788 F.3d at 1048 (same).
We leave it to the district court to determine in the first
instance whether, applying a de novo standard, the
magistrate judge’s reasons for denying discovery withstand
CPC PATENT TECH. V. APPLE 17
scrutiny, and whether this case would benefit from further
analysis and review by the magistrate judge. 9
VACATED AND REMANDED.
9
CPC’s motion to take judicial notice of certain court documents,
Dkt. No. 11, is DENIED as moot.