In re First Quality Baby Products, LLC., No. 12-M122 (Fed. Cir. Aug. 10, 2012)

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-

2² WORLDWIDE, INC.

vania to allow First Quality to take additional depositions.

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 involved 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

discovery and afÏrmed 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 deadline 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

usurpation 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

8. 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. 38, 35 (1980).3 “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.8d 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 825

FOR AUG 10 2012

MAN HORBALY

CLERK