646 F. App'x 263
3rd Cir.2016Background
- Kate O’Keeffe, a Wall Street Journal reporter and defendant in a Hong Kong defamation suit by Sheldon Adelson, sought evidence to support a truth defense that Adelson is “foul-mouthed.”
- O’Keeffe applied under 28 U.S.C. § 1782 for a subpoena to Kirk Thorell, a PricewaterhouseCoopers partner and former auditor of Las Vegas Sands Corp. (LVSC), seeking documents and testimony referencing Adelson’s use of offensive language and demeanor.
- The Magistrate Judge conditionally granted the § 1782 application; Adelson and LVSC moved to quash. Thorell/PwC did not challenge the subpoena.
- The Magistrate Judge denied the motion to quash; the District Court affirmed. Adelson and LVSC appealed to the Third Circuit.
- The parties agreed the statutory prerequisites of § 1782 were met; the dispute concerned whether the District Court abused its discretion under the Intel factors.
- The Third Circuit affirmed, concluding the District Court properly exercised discretion under the Intel factors and did not err in denying the motion to quash.
Issues
| Issue | Plaintiff's Argument (Adelson) | Defendant's Argument (O’Keeffe) | Held |
|---|---|---|---|
| Whether § 1782 statutory requirements were met | Adelson did not dispute statutory requirements | O’Keeffe argued requirements were met | Statutory requirements satisfied |
| Whether foreign tribunal would be receptive to § 1782 aid (Intel factor 2) | Hong Kong law/expert shows such evidence would be inadmissible; O’Keeffe’s expert is biased | U.S. courts should not parse contested foreign-law admissibility; Hong Kong is a Hague Evidence Convention signatory indicating receptivity | District Court did not abuse discretion; factor favors O’Keeffe |
| Whether applicant must seek letters rogatory first (Intel factor 3) | O’Keeffe should have pursued Hong Kong procedures first; failure suggests circumvention | § 1782 permits interested persons to apply directly; no prior letters rogatory required | No requirement to seek letters rogatory first; factor favors O’Keeffe |
| Whether requests are unduly intrusive, burdensome, or an improper fishing expedition (Intel factor 4 & relevance) | Subpoena is overbroad, intrusive, harassing, and not relevant (ancient/remote or cumulative) | Requests are relevant to truth defense; burden falls on subpoenaed third party (Thorell/PwC) who did not object; confidentiality can be managed by protective order | District Court did not abuse discretion; requests not shown unduly burdensome or improper fishing expedition |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (sets four discretionary factors for § 1782 discovery)
- In re Bayer AG, 146 F.3d 188 (3d Cir. 1998) (discusses § 1782 standards and district court discretion)
- Bayer AG v. Betachem, Inc., 173 F.3d 188 (3d Cir. 1999) (Congressional purpose of § 1782 to facilitate foreign litigation)
- John Deere Ltd. v. Sperry Corp., 754 F.2d 132 (3d Cir. 1985) (rejects requirement that letters rogatory be obtained before § 1782 relief)
- Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995) (cautions against resolving contested foreign-law admissibility as part of § 1782 analysis)
- Couch v. United States, 409 U.S. 322 (1973) (no accountant–client privilege under federal law)
- NLRB v. Frazier, 966 F.2d 812 (3d Cir. 1992) (standard for abuse of discretion review)