## Facts

- Tulip Computers International B.V., a Dutch corporation, sued Dell Computer Corporation for infringement of U.S. Patent No. 5,594,621.
- Dell denied infringement and asserted invalidity and unenforceability defenses.
- Two former Tulip employees, Gerardus Franciscus Duynisveld and Frans Dietz, resided in the Netherlands and were non-parties outside the district court’s subpoena power.
- Dell moved under 28 U.S.C. § 1781, Federal Rule of Civil Procedure 28(b)(2), and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters to obtain testimony and documents from these witnesses through Dutch authorities.
- Dell argued the witnesses had material knowledge about the patented technology and related factual issues, making foreign evidence-taking necessary.
- Tulip opposed, arguing the requests amounted to impermissible broad pretrial discovery under the Convention and risked disclosure of privileged or protected material (including attorney–client and work-product matters).
- The court addressed only the discovery-assistance motions, not infringement, validity, or enforceability.

## Issues

1. Whether the court should issue letters of request under the Hague Evidence Convention to obtain testimony and documents in the Netherlands from non-party former employees of Tulip.
2. Whether, and to what extent, Hague Convention evidence requests may encompass pretrial discovery while remaining limited by relevance, burden, privilege, and the executing state’s procedures.

## Decision

- The court granted Dell’s motions in substantial part and authorized issuance of letters of request to Dutch authorities for evidence from Duynisveld and Dietz.
- The court required that requests be tailored to relevant, non-privileged matters and executed through Convention procedures consistent with Dutch law.
- The court recognized that privilege objections remained available and that the process should not compel privileged communications or protected attorney work.

## Legal Principles

- When key non-party witnesses reside abroad and are beyond U.S. subpoena power, letters of request under the Hague Evidence Convention are an appropriate mechanism to obtain evidence for use in U.S. civil litigation.
- The Hague Evidence Convention does not categorically bar pretrial discovery; it channels cross-border evidence-taking through specified procedures and permits limitations based on the requested state’s law and Convention-based grounds for restriction.
- A court should require specificity and proportionality in Convention requests, limiting them to relevant information and avoiding undue burden.
- Issuing a letter of request does not waive or defeat applicable privileges; privilege and protection claims must be preserved and excluded from compelled production or testimony.

## Conclusion

The court authorized Hague Evidence Convention letters of request to obtain testimony and documents in the Netherlands from two non-party former employees, while limiting the scope to relevant, non-privileged matters and relying on Convention procedures and Dutch execution to balance discovery needs with comity and protections.


Tulip Computers Int’l B.V. v. Dell Comput. Corp., 254 F. Supp. 2d 469 (D. Del. 2003)