NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
KIMBERLY-CLARK WORLDVVIDE, INC.,
Plaintiff-Petiti0ner,
V.
FIRST QUALITY BABY PRODUCTS, LLC, FIRST
QUALITY PRODUCTS, INC., FIRST QUALITY
RETAIL SERVICES, LLC, AND FIRST QUALITY
HYGIENIC, INC.,
Defendan,ts-Responden.ts.
Misce11ane0us D0cket N0. 957
On Petiti0n for Permission to Appea1 pursuant to 28
U.S.C. § 1292(|:)) from the United States District C0urt for
the Midd1e District of Pennsy1vania case no. 09-CV-1685,
Judge Wi11iam W. CaldWe]1.
ON PETITION
Before GAJARsA, FRIEDMAN, and M0oRE, Circw1rJudges.
GAJARSA, Circuit Judge.
0 R D E R
Kimber1y-C1ark Worldwide, Inc. (Kimber1y-Clark)
petitions for permission to appeal orders certified by the

K.lMBERLY-CLARK V. FlRST QUALITY 2
United States District Court for the Middle District of
Pennsylvania as ones involving a controlling issue of law
as to which there is substantial ground for difference of
opinion and for which an immediate appeal may
materially advance the ultimate termination of the
litigation. First Quality Baby Products, LLC et al. (First
Quality) opposes. Kimberly-Clark replies
This petition stems from a patent infringement suit
brought by Kimberly-Clark against First Quality that
remains pending before the United States District Court
for the Middle District of Pennsylvania. First Quality
sought discovery of certain documents produced by
Ki1nber1y-Clark during several alternative dispute
resolution proceedings between Kimberly-Clark and a
third party. Kimber1y-Clark objected, asserting that the
documents were privileged under the "federal mediation
priVilege." First Quality sought an order compelling
discovery of those documents.
The District Court recognized the federal mediation
privilege, but held that although documents arising from
“mediation" proceedings were privileged, other documents
arising from "arbitration" proceedings were discoverable
ln a separate order, the District Court certified its
discovery ruling for permissive appeal pursuant to 28
U.S.C. § 1292(b). Ultimately, this court must exercise its
own discretion in deciding whether it will grant
permission to appeal interlocutory orders certified by a
trial court. See In re Corwertible Rowing Exerciser Patent
L1ltigation, 903 F.2d 822 (Fed. Cir. 1990); 28 U.S.C. §
1292(c)(1). We determine that granting the petition in
these circumstances is warranted.
Accordingly,
IT Is ORnERE1) THAT:
The petition for permission to appeal is granted

3 KIMBERLY-CLARK V. FIRST QUALITY
FOR THE COURT
 l 0  /s/ Jan Horbaly
Date J an Horbaly
cc: Constantine L. Trela, Jr., Esq.
D. MichaelUnderhil1, Esq.
s19
Clerk
Fl l.£D
u.s. c0um oF APPEAl.s FOR
rr-le FEnERAL canton
JAN ill 2011
JAN |'l*JRBALY
CLERK

