In re: Application of Amgen Inc. for Assistance Before a Foreign Tribunal CELLTRION… v. Joseph Sidley Austin LLP 1501 K Street NW Washington, DC 20005 Steven J. Horowitz…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 25-1407
________________
In re: Application of Amgen Inc. for Assistance Before a
Foreign Tribunal
CELLTRION USA, INC.,
Appellant
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:24-cv-09052)
District Judge: Honorable Christine P. O’Hearn
________________
Submitted for Possible Dismissal on April 25, 2025
Before: KRAUSE, MATEY, and SCIRICA, Circuit Judges
(Opinion filed: June 5, 2025)
Jonathan Y. Ellis
Corinne S. Hockman

-- 1 of 9 --

2
McGuireWoods LLP
501 Fayetteville Street
Suite 500
Raleigh, NC 27601
Grace Anne J. Simmons
McGuireWoods LLP
888 16th Street NW
Black Lives Matter Plaza, Suite 500
Washington, DC 20006
Counsel for Appellant
Joshua J. Fougere
Jillian S. Stonecipher
Madeleine V. Joseph
Sidley Austin LLP
1501 K Street NW
Washington, DC 20005
Steven J. Horowitz
Sidley Austin LLP
One S Dearborn Street
Chicago, IL 60603
Siegmund Y. Gutman
Chelsea Ostrer
Mintz Levin Cohn Ferris Glovsky & Popeo, P.C.
2049 Century Park E
Suite 300
Los Angeles, CA 90067
Counsel for Appellee

-- 2 of 9 --

3
________________
OPINION OF THE COURT
________________
PER CURIAM
Federal courts are often called on by parties to foreign
litigation to facilitate discovery in the United States in aid of a
foreign proceeding. And federal law licenses these efforts by
authorizing district courts to order a person “to give his
testimony or statement or to produce a document or other thing
for use in a proceeding in a foreign or international tribunal.”
28 U.S.C. § 1782(a). We consider here whether an order
entered under § 1782 is “final,” such that it may be appealed
under 28 U.S.C. § 1291, when a district court has determined
that discovery is appropriate under § 1782 but has not yet
conclusively defined the scope of that discovery. Because we
conclude such an order is not final, and, thus, we lack appellate
jurisdiction to review it, we will dismiss this appeal.
I. Background
Appellee Amgen Inc. is a biotechnology company that
holds patents in both the United States and South Korea for
drug products containing, and manufacturing processes
involved in the production of, denosumab, the active ingredient
in biologic medications for certain bone cancers and tumors.
Amgen and an affiliate filed patent infringement suits in both
countries against Celltrion Inc. (Celltrion Korea), a South
Korean biotechnology company. Amgen seeks information it
believes is material to these suits from Celltrion Korea’s

-- 3 of 9 --

4
subsidiary, Celltrion USA, which is headquartered in New
Jersey.1
After initiating its action in South Korea, Amgen filed
an application pursuant to 28 U.S.C. § 1782 in the United
States District Court for the District of New Jersey to subpoena
Celltrion USA for eighty-two categories of documents and
testimony involving Celltrion Korea’s denosumab products.
Section 1782 permits district courts to order discovery “for use
in a proceeding in a foreign or international tribunal,” provided
that the applicant shows the target of the discovery “resides or
is found” in the relevant district. 28 U.S.C. § 1782(a). The
application was initially assigned to a magistrate judge and was
opposed by Celltrion USA, which contended that, as a
threshold matter, § 1782 cannot be used to compel it to produce
information that resides outside the District of New Jersey with
its foreign parent company. It also objected on the basis that
the information sought is “unduly intrusive or burdensome.”
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 265
(2004).
On December 20, 2024, the Magistrate Judge granted
Amgen’s § 1782 application. Amgen, Inc. v. Celltrion USA,
Inc., No. 24-9052, 2024 WL 5182022, at *10 (D.N.J. Dec. 20,
2024). The Judge rejected Celltrion USA’s threshold argument
and also held that the request was not unduly burdensome,
reasoning that “[t]o the extent the subpoena may encompass
1 Specifically, Celltrion Korea developed a biosimilar of the
denosumab drugs Amgen manufactures and for which it has
American and South Korean patents. Before the infringement
litigation, Celltrion Korea intended to market the biosimilar in
the United States in October 2024.

-- 4 of 9 --

5
materials ultimately not relevant to the claims or defenses[,]
. . . such overbreadth is not a reason to deny a § 1782
application outright.” Id. at *9. Accordingly, the Judge
granted the application but ordered the parties to “assuage[]”
Celltrion USA’s concerns by “meet[ing] and confer[ring] and
enter[ing] into a confidentiality agreement that will govern the
documents produced under the subpoena.” Id. at *10. It left
the scope of permissible discovery to be determined at a later
date. Id.
Celltrion USA then appealed to the District Court,
which affirmed the Magistrate Judge’s order and opinion. This
timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We putatively have jurisdiction under 28 U.S.C.
§ 1291, and we always have jurisdiction to determine our own
jurisdiction. See George v. Rushmore Serv. Ctr., LLC, 114
F.4th 226, 234 (3d Cir. 2024).
III. Discussion
Section 1291 vests us with jurisdiction over “appeals
from all final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. Usually, discovery orders are not
immediately appealable because they are not “final” under
§ 1291. See, e.g., In re Carco Elecs., 536 F.3d 211, 213 (3d
Cir. 2008); In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir.
1997), abrogated in part on other grounds by Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100 (2009). But orders under
§ 1782 are different. In § 1782 proceedings, “discovery is

-- 5 of 9 --

6
everything,” Banca Pueyo SA v. Lone Star Fund IX (US), L.P.,
978 F.3d 968, 972 (5th Cir. 2020), because “[o]nly the
discovery dispute . . . is occurring in the United States,” Bayer
AG v. Betachem, Inc., 173 F.3d 188, 189 n.1 (3d Cir. 1999).
So once the district court conclusively resolves that dispute,
“there is no further case or controversy before the district
court.” In re Premises Located at 840 140th Ave. NE, Bellevue,
Wash., 634 F.3d 557, 566 (9th Cir. 2011). And for that reason,
we have held that an order granting or denying discovery under
§ 1782 is “final,” making it immediately appealable under
§ 1291. See Bayer AG, 173 F.3d at 189.
We have not addressed, however, at what point in the
district court proceedings such an order becomes final, and that
is the question before us today. Celltrion USA contends it is
“final” and appealable “even if ancillary work remains to be
done in the district court,” such as defining the scope of
permissible discovery, Resp. to Mot. to Dismiss 10, while
Amgen argues such open questions portend a non-final order
that cannot be reviewed on appeal. Amgen has the better of
the arguments.
Under ordinary finality principles, § 1782 orders
permitting discovery but declining to define the scope of that
discovery are not final. We have held that an order becomes
“final” for purposes of § 1291 when it “ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment.” Weber v. McGrogan, 939 F.3d 232, 236 (3d
Cir. 2019) (quoting Catlin v. United States, 324 U.S. 229, 233
(1945)). On the other hand, where a “matter remains open,
unfinished or inconclusive, there may be no intrusion by
appeal.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949).

-- 6 of 9 --

7
In this case, the District Court’s order leaves much to be
determined. It ordered the parties to meet and confer in order
to agree to a suitable confidentiality order, and it required
Celltrion USA “comply with the issued subpoena, subject to
any specific objections raised during the meet-and-confer
process as outlined in the Magistrate Judge’s Order.” App. 30.
These ongoing proceedings fall far short of a conclusive
determination as to Celltrion USA’s obligations under the
§ 1782 order. We therefore hold that an order granting
discovery under § 1782, but declining to determine the scope
of permissible discovery, is not a final order under § 1291.
Our holding today serves the policies that § 1291
embodies and “reflects a healthy respect for the virtues of the
final-judgment rule.” Mohawk Indus., 558 U.S. at 106. Our
system of appellate review generally tolerates only “a single
appeal” for “the whole case and every matter in controversy in
it decided.” McLish v. Roff, 141 U.S. 661, 665–66 (1891).
This rule promotes the appropriate deference owed to district
courts in the administration of trial proceedings and avoids
costly and inefficient piecemeal appeals that expend both the
parties’ and the courts’ limited resources. See Firestone Tire
& Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). Permitting
interlocutory appeals of § 1782 orders with indeterminate
scopes undermines these important considerations and invites
“additional appeals raising further questions about the scope of
[a party’s] discovery obligations”—the very result the final-
judgment rule aims to avoid. CPC Pat. Techs. Pty Ltd. v.
Apple, Inc., 119 F.4th 1126, 1133 (9th Cir. 2024).
Apart from these general objectives of § 1291, it would
be particularly inefficient to permit appeals from § 1782 orders
where the scope of permissible discovery is uncertain. That is

-- 7 of 9 --

8
because such appeals require us to evaluate whether the district
court abused its discretion in ordering discovery under the four
non-exhaustive factors set out in the Supreme Court’s decision
in Intel Corp., 542 U.S. at 264–64. But we cannot consider
those factors “in a vacuum,” CPC Pat. Techs., 119 F.4th at
1134, and without a definite scope of discovery, it is
impossible to discern whether the district court soundly
exercised its discretion in granting discovery. So far from mere
“ancillary work,” Resp. to Mot. to Dismiss 9, setting the scope
of permissible discovery is a prerequisite to our review, and a
§ 1782 order is not final without it.
In reaching this result, we join the two circuits that have
addressed this issue—the Ninth and the Fifth. See CPC Pat.
Techs., 119 F.4th at 1133, 1135 (dismissing appeal because the
scope of discovery remained undefined where “[t]here is no
meeting of the minds between the parties as to what documents
must be turned over or any court order to that effect”); Banca
Pueyo, 978 F.3d at 974 (dismissing appeal where the scope of
§ 1782 discovery remained unresolved after a motion to
quash). Those courts, faced with nearly identical
circumstances as here, held that “[t]he lack of a conclusive
determination as to the scope of [a party’s] discovery
obligations” renders any § 1782 order nonfinal and
unappealable under § 1291. CPC Pat. Techs., 119 F.4th at
1133; see also Banca Pueyo, 978 F.3d at 974. Like those sister
circuits, we too “resist[] efforts to stretch § 1291 to permit
appeals of right that would erode the finality principle and
disserve its objectives.” Microsoft Corp. v. Baker, 582 U.S.

-- 8 of 9 --

9
23, 37 (2017). So we now follow their lead and conclude
Celltrion USA’s appeal is premature for the same reasons.2
In sum, Celltrion USA has appealed a nonfinal order, so
we “have no choice but to dismiss the case for lack of
jurisdiction.” In re ESML Holdings, Inc., 135 F.4th 80, 90 (3d
Cir. 2025).
IV. Conclusion
For the foregoing reasons, we will dismiss this appeal.
2 Celltrion USA’s reliance on Heraeus Kulzer, GmbH v.
Biomet, Inc., 881 F.3d 550 (7th Cir. 2018), is misplaced.
There, the applicant moved to modify a stipulated protective
order years after its § 1782 request was granted in an effort to
enforce a later-in-time injunction granted in the foreign
proceeding. Id. at 555–59. The district court denied the
motion, and the applicant appealed that denial. Id. at 559. As
the Fifth Circuit observed, Heraeus “actually supports the idea
that appeals are proper after a court ‘conclusively denie[s]’
relief,” Banca Pueyo SA v. Lone Star Fund IX (US), L.P., 978
F.3d 968, 972 n.2 (5th Cir. 2020) (quoting Heraeus, 881 F.3d
at 563), because there the Seventh Circuit confronted a
situation where “the district court conclusively denied the
relief sought,” Heraeus, 881 F.3d at 563. In this case, the
District Court determined Amgen is entitled to discovery, but
the extent to which Celltrion USA must comply with Amgen’s
requests remains uncertain. So far from conclusively resolving
the dispute, the District Court must still determine “to what
extent[] discovery might be required.” Banca Pueyo, 978 F.3d
at 973.

-- 9 of 9 --