In Re Application of Kate O’ Keeffe, No. 2:14-cv-01518 (D. Nev. Mar. 24, 2015) [click for opinion]

Kate O’Keeffe (“O’Keeffe”) filed ex parte applications on September 18, 2014 for a court order to obtain discovery for use in foreign proceedings pursuant to 28 U.S.C. § 1782 (“§ 1782”).  O’Keefe claimed that the discovery sought would aid her defense against a libel claim filed in Hong Kong by Las Vegas Sands Corp.’s Chairman and CEO, Sheldon G. Adelson (“Adelson”).  Adelson alleged in that lawsuit that an article authored by O’Keefe and published in the Wall Street Journal falsely referred to him as “foul-mouthed.”  O’Keefe asserted that the discovery sought would demonstrate Adelson’s “tendency to use foul or otherwise offensive language.”

The district court granted O’Keeffe’s applications, concluding that it had the legal authority to do so because (1) the subpoenaed parties resided in the district; (2) the discovery sought would be of use in the Hong Kong litigation; and (3) the application was brought by O’Keefe, a party to that litigation.  The court noted, however, that the subpoenaed parties could file a motion to quash discovery.  The subpoenaed parties later filed such a motion. 

In considering the motion to quash, the district court looked to the discretionary factors identified by the U.S. Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., that a court should take into consideration after determining that the statutory requirements of § 1782 have been met: (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.  The subpoenaed parties argued that the second, third and fourth Intel factors weighed in favor of granting their motion to quash. 

Regarding the second Intel factor, the subpoenaed parties contended that 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 that discovery into evidence.  The district court disagreed because there was no “authoritative proof” that the requested discovery would be unwelcome to the Hong Kong court, thus providing no reason for the district court to exercise its discretion to deny O’Keeffe’s discovery application. 

Regarding the third Intel factor, the subpoenaed parties argued that O’Keeffe’s application was simply a means to circumvent the Hong Kong court’s proof-gathering procedures or policies since O’Keeffe never sought assistance from the Hong Kong court to obtain the requested discovery. The district court rejected this argument, holding that O’Keeffe was not required to request discovery through the Hong Kong court; rather, the language of § 1782 provided explicitly that an application may be brought by “any interested person.”

Regarding the fourth Intel factor, the subpoenaed parties argued that the application contained unduly intrusive and burdensome requests, and amounted to an “improper fishing expedition” designed to turn the Hong Kong litigation into a “sensationalist spectacle.”  The court found that the subpoenaed parties failed to point to any sections of the subpoenas or explain how or why any of the requests were unduly intrusive, burdensome or amounted to a fishing expedition. 

Accordingly, the district court denied the subpoenaed parties’ motion to quash.

Jane Klinger of the Washington DC office contributed to this summary.