660 F. App'x 871
11th Cir.2016Background
- Kate O’Keeffe, a Hong Kong–based journalist, is defendant in a Hong Kong libel suit brought by Sheldon G. Adelson over a 2012 Wall Street Journal article co‑authored by O’Keeffe describing Adelson as “foul‑mouthed.”
- O’Keeffe sought discovery in the Southern District of Florida under 28 U.S.C. § 1782 to depose and obtain documents from Nikita Zukov, a Florida resident who worked with Adelson in 1989 and allegedly witnessed Adelson using foul language.
- Zukov did not object to the subpoena; Adelson moved to quash it. The magistrate judge initially addressed the § 1782 factors; the district court reviewed and granted O’Keeffe’s application, denying Adelson’s motion to quash.
- The district court found the four statutory requirements of § 1782 were satisfied and, applying the discretionary Intel factors, concluded discovery should be allowed: Zukov is a non‑party, the foreign tribunal would likely accept assistance, no attempt to circumvent foreign rules was shown, and the request was not unduly intrusive or burdensome.
- Adelson argued the subpoena was a speculative fishing expedition and that 1989 testimony about language use was irrelevant to the Hong Kong libel suit; the district court disagreed, finding counsel had conversations with Zukov supporting relevance and memory, and that the testimony was probative of Adelson’s general character for being foul‑mouthed.
- On appeal, the Eleventh Circuit affirmed, holding the district court did not abuse its discretion in granting the § 1782 request and denying the motion to quash.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782 statutory requirements and Intel discretionary factors permit discovery from a U.S. resident for use in a Hong Kong libel action | O’Keeffe: § 1782 requirements met; discovery appropriate under Intel factors | Adelson: discovery improper; subpoena should be quashed | Held: § 1782 requirements met; Intel factors weigh in favor of granting discovery |
| Whether the subpoena is an improper fishing expedition | O’Keeffe: not speculative—counsel spoke with Zukov who recalled witnessing foul language | Adelson: request speculative and overbroad | Held: not a fishing expedition; request limited and supported by counsel’s conversations with Zukov |
| Whether testimony about conduct in 1989 is relevant to libel claim | O’Keeffe: testimony bears on Adelson’s general character for being foul‑mouthed, relevant to truth/defense | Adelson: 1989 conduct is stale and irrelevant to the Hong Kong claim | Held: testimony is relevant and non‑cumulative to issue of Adelson’s character as alleged in the libel action |
| Whether the subpoena is unduly intrusive or burdensome under Intel factor four | O’Keeffe: Zukov did not object; discovery limited in scope | Adelson: subpoena is burdensome or intrusive | Held: no abuse of discretion; request not unduly intrusive or burdensome |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (sets discretionary factors for § 1782 assistance)
- In re Clerici, 481 F.3d 1324 (11th Cir. 2007) (enumerates § 1782 statutory requirements)
- Application of Consorcio Ecuatoriano De Telecomunicaciones S.A., 747 F.3d 1262 (11th Cir. 2014) (discusses scope of discoverable matter under Rule 26 in § 1782 matters)
- United Kingdom v. United States, 238 F.3d 1312 (11th Cir. 2001) (standard of review for district court § 1782 discretion)