Case of the Day: In re Mak

The case of the day is In re Mak (N.D. Cal. 2012). Michael Erik A.B. Mak Shun Ming Hotung was married to Chan Wei Guang. The two were in the midst of divorce proceedings in the Hong Kong courts. According to Mak, George J. Grover, a resident of California, gave an affidavit submitted to the Hong Kong court averring that Mak owned a car collection worth more than $50 million. Mak brought an ex parte application for issuance of a subpoena to Grover under 28 U.S.C. § 1782 seeking to discover the factual basis for Grover’s affidavit.

The judge properly granted the application. She first found that the statutory requirements were met: Grover was “found” in California; Mak was an “interested person” entitled to bring an application; and the divorce case was a proceeding before a foreign tribunal. She went on to a quick review of the Intel factors, deciding, in her discretion, to order issuance of the subpoena because (1) Grover was not a party to the Hong Kong case; (2) there wsa no evidence Mak was seeking to evade foreign discovery limitations; (3) the Hong Kong court would presumably be receptive to the evidence; and (4) there was no undue burden, as Grover has voluntarily submitted the affidavit. Point (4) seemed particularly persuasive to the judge, and it is a good reminder that if you submit an affidavit in a court proceeding you can fairly expect to have to face questions about it.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

One thought on “Case of the Day: In re Mak

  1. Update: Grover sought to quash the subpoena. Grover argued that the procedural rules that governed the Hong Kong proceedings would not have allowed Mak to take his deposition, but this of course is irrelevant, as there is no discoverability requirement under § 1782. The most interesting basis for the motion was Grover’s assertion that if he were to testify in the Hong Kong case, his testimony would be private (I think he means that the testimony would be kept under seal). The judge found that the Hong Kong court could make whatever rulings it thought appropriate to protect the confidentiality of the testimony. So the judge rejected the motion.

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