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In re Application of O'Keeffe

United States District Court, District of Nevada

March 24, 2015

IN RE APPLICATION OF KATE O’ KEEFFE TO ISSUE SUBPOENA FOR TAKING DEPOSITION OF PRODUCTION OF DOCUMENTS IN FOREIGN PROCEEDING.

ORDER

C.W. Hoffman, Jr, J.

This matter is before the Court on Movants Las Vegas Sands Corp. (“LVSC”), Daniel J. Briggs (“Briggs”), and Ron Reese’s (“Reese”), (collectively “movants”), motion to quash the subpoenas (doc. # 19), filed November 12, 2014. The Court also considered Rabbi Felipe Goodman’s (“Rabbi Goodman”) joinder to the instant motion (doc. # 27), filed November 21, 2014; movants’ supplement to the motion (doc. # 32), filed November 25, 2014; Kate O’ Keeffe’s (“O’Keeffe”) response (docs. # 38, # 39), filed December 8, 2014; and, movants’ reply (doc. # 41), filed December 18, 2014.[1]

BACKGROUND

On September 18, 2014, O’ Keeffe filed ex parte applications for a court order to obtain discovery for use in foreign proceedings pursuant to 28 U.S.C. § 1782(a). See Docs. # 1-5. Specifically, O’ Keeffe sought an order authorizing subpoenas to: (1) LVSC; (2) Briggs, VP for Investor Relations at LVSC; (3) Reese, VP for Public Relations at LVSC; (4) Brian Clark, Litigation Support Manager for Lawyer Solutions Group LLC; and (5) Rabbi Goodman of the Temple Beth Sholom, Las Vegas. Id. According to O’ Keeffe, the documents and other materials subpoenaed will be used in a lawsuit adjudicated in Hong Kong, People’s Republic of China, to which she is a party. O’ Keeffe explains that the discovery sought will aid in her defense against a libel claim filed by LVSC’s Chairman and CEO, Sheldon G. Adelson (“Adelson”), alleging that an article authored by O’ Keeffe and published by the U.S., European, and Asian editions of the Wall Street Journal falsely referred to him as “foul-mouthed.” Doc. # 1 at 3. O’Keeffe asserts that the subpoenaed parties have relevant information demonstrating Adelson’s “tendency to use foul or otherwise offensive language.” Id. at 6. The Court granted O’ Keeffe’s applications on October 21, 2014, but noted that the subpoenaed parties could file a motion to quash. See Doc. # 18; see also Docs. # 1-5. Thereafter, movants filed the instant motion. See Doc. # 19.

DISCUSSION

1. Legal Standard

A district court may grant an application pursuant to 28 U.S.C. § 1782 if: (1) the person from whom the discovery is sought resides or is found in the district of the district court to which the application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the application is made by a foreign or internal tribunal or any interested person. 28 U.S.C. § 1782(a); see also In re Republic of Ecuador, No. 3:10-80225-CRB-EMC, 2010 WL 3702427, at *2 (N.D. Cal. Sep. 15, 2010). However, although a court has the authority under § 1782 to grant an application, it is not required to do so. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004). The U.S. Supreme Court identifies several factors that a court should take into consideration when ruling on a § 1782 application: (1) whether the material sought is within the foreign tribunal’s jurisdictional reach and thus accessible absent § 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government, or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the § 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests. In re Republic of Ecuador, 2010 WL 3702427, at *2 (citing Intel Corp., 542 U.S. at 264-65).

If a district court grants a § 1782 application, the subpoenaed party can move to quash the subpoena, but bears the burden of persuasion in the course of civil litigation. See In re Ex Parte Apple Inc., No. MISC 12-80013 JW, 2012 WL 1570043, at *1 (N.D. Cal. May 2, 2012); see also Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011) (“Once a section 1782 applicant demonstrates need for extensive discovery for aid in a foreign lawsuit, the burden shifts to the opposing litigant to demonstrate, by more than angry rhetoric, that allowing the discovery sought (or a truncated version of it) would disserve the statutory objectives.”).

2. Analysis

This Court previously concluded it had the legal authority to grant O’ Keeffe’s ex parte applications for subpoenas. See Doc. # 18. The Court noted in its order that: (1) the subpoenaed parties reside in this district, (2) the discovery would be of use in the Hong Kong litigation, and (3) the application is brought by O’ Keeffe, a party to that litigation. Id. Movants do not dispute that this Court has discretion to grant a § 1782 application. Instead, movants contend the second, third, and fourth Intel factors weigh in favor of granting their motion to quash.[2]

a. Second Intel Factor: Receptivity of the Hong Kong Court to U.S. Federal Court Jurisdictional Assistance

Movants contend the subpoenas should be quashed because O’ Keeffe allegedly “bypassed” Hong Kong law and procedures governing discovery by failing to request the assistance of the Hong Kong Court to obtain the requested discovery, which casts doubt on the usefulness of the requested discovery and the Hong Kong Court’s receptivity to admitting into evidence that discovery. Doc. # 19 at 5 (citing, among others, In re PIC Do Nordeste, LTDA, No. 12-50624, 2012 WL 4448886 (E.D. Mich. Sep. 25, 2012)). In support, movants present the expert opinion of Malcolm Bernard Kemp (“Kemp”), a Hong Kong solicitor and partner at the law firm of Stephenson Hardwood. See Doc. # 32-1 at 1. According to Kemp, O’ Keeffe’s discovery applications: (1) improperly seek to circumvent Hong Kong procedural law and rules governing discovery from a non-party by failing to request the assistance of the Hong Kong Court; (2) are “premature” because the pleading stage has not yet closed in the Hong Kong litigation; (3) improperly seek pretrial oral testimony outside the presence of a jury, which is generally not permitted in Hong Kong civil actions; (4) improperly seek documentary evidence using a deposition subpoena; (5) fail to identify specific documents sought in violation of Hong Kong procedural rules; and (6) improperly seek to conduct discovery without the oversight of a Hong Kong examiner. Id. at 13-19.

In response, O’ Keeffe argues that movants mischaracterize the second Intel factor as contemplating the Hong Kong Court’s receptivity to “receiv[ing]” or admitting the discovery sought when the second factor actually contemplates the Hong Kong Court’s receptivity to “U.S. federal-court jurisdictional assistance.” Doc. # 38 at 7 (citing Intel, 542 U.S. at 264-65). O’ Keeffe next argues that the Ninth Circuit, among others, has held that § 1782 does not require the discovery sought to be discoverable or admissible in the foreign tribunal. Id. at 8 (citing, among others, Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664, 668 (9th Cir. 2002) aff’d, 542 U.S. 241 (2004)). O’ Keeffe adds that while movants urge this Court to consider admissibility despite the absence of such a requirement under § 1782, the Second Circuit already considered and rejected that same argument in Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 83 (2d Cir. 2012).

Like movants, moreover, O’ Keeffe presents the opinion of an expert from Hong Kong, Kathryn Sara Hippolyte Sanger (“Sanger”), [3] to oppose Kemp’s affidavit. According to Sanger, O’ Keeffe’s discovery applications: (1) are proper because O’ Keeffe was not required to use or exhaust Hong Kong laws and procedures before submitting her applications to this Court; (2) are not premature because they are not contingent on closure of the pleadings stage in the Hong Kong litigation; (3) are proper because there is no strict requirement for oral evidence before a Hong Kong jury; (4) comport with Order 39 of the Rules of the High Court of the Hong Kong Special Administrative Region (“Order 39), which contemplates that a party will seek both witness and documentary evidence; (5) do not violate Hong Kong law and procedure because the ...


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