Case of the Day: In re O’Keeffe

The case of the day is In re O’Keeffe (D.N.J. 2015). Kate O’Keeffe was a Hong Kong-based reporter for Dow Jones & Co. She wrote an article, published in the US, European, and Asian editions of the Wall Street Journal, that described casino magnate Sheldon Adelson as “foul-mouthed.” Adelson, displaying some pretty thin skin for a billionaire in my opinion, sued O’Keeffe for libel in Hong Kong. O’Keeffe brought an application under § 1782 for leave to serve a subpoena on Kirk A. Thorell, formerly the auditor for one of Adelson’s companies. The WSJ had previously reported that Adelson’s “demeanor” was one of the reasons Thorell’s firm, PriceWaterhouseCoopers, no longer audited the company. She suggested that Thorell might have information to support her assertion, in her article, that Adelson was “foul-mouthed.” The magistrate judge granted the application ex parte, and Adelson then moved to quash.

The magistrate judge denied the motion to quash. The statutory prerequisites under § 1782 were plainly satisfied. The magistrate judge focused on some of the discretionary Intel factors. He discounted the dueling expert affidavits on whether the evidence would be admissible in the Hong Kong courts on the grounds that it could not really resolve the experts’ disagreement but that nothing suggested that the magistrate judge should not exercise his discretion and allow the discovery to proceed despite the disagreement. There was no attempt to circumvent Hong Kong proof-gathering mechanisms; there is no requirement of first resort to the procedures available in the forum of the underlying suit and no requirement to show admissibility or even discoverability of the evidence under the law of the forum. Finally, there was no undue burden, and the judge rejected the claim that the application was a mere fishing expedition. Of particular interest was the magistrate judge’s observation that while the relationship between accountant and client are confidential, they are not privileged, and any issues about confidentiality could be dealt with via appropriate redactions.

Adelson has appealed this magistrate judge’s decision to the court, so this is not the last word.

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 2012), 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.

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