Today we have two cases of the day: In re Application of O’Keeffe (S.D. Fla. 2015), and In re Application of O’Keeffe (D.N.J. 2015). The applicant in both cases, Kate O’Keeffe, is a reporter for the Wall Street Journal. In 2012, she wrote an article about the casino magnate, Sheldon Adelson, that described him as a “scrappy, foul-mouthed billionaire from working class Dorchester, Mass.” Adelson sued her for libel in Hong Kong, where O’Keeffe is based, alleging that the adjective “foul-mouthed” was false and defamatory.
In Florida, O’Keeffe sought discovery from Nikita Zukov, a Palm Beach architect who, she said, “frequently interacted with Adelson while providing architectural services for a project for Adelson’s company.” O’Keeffee claimed that Zukov may have “personally witnessed Adelson use foul or otherwise offensive language.” Zukov, she said, “was terminated from thep roject after approximately nine months and later prevailed in a brach of contract action” against Adelson’s company. Zukov’s dealings with Adelson were in 1989.
In New Jersey, O’Keeffe sought discovery from Kirk A. Thorell, a partner with PricewaterhouseCoopers. PWC was formerly auditor for one of Adelson’s companies. According to O’Keeffe, PWC resigned because of “Adelson’s ‘challenging demeanor and demands on the auditors.’”
In the New Jersey case, the judge denied the motion to quash. The analysis under Intel was straightforward: there was no evidence that the Hong Kong court would be unreceptive to the evidence; nor was there evidence that O’Keeffe was seeking to circumvent Hong Kong’s proof-gathering restrictions (the court specifically rejected the argument that O’Keeffe should have been required to proceed by way of letter rogatory). The request was not unduly burdensome, and in any case, Adelson lacked standing to raise undue burden, as the burden would be felt by Thorell, not by him.
In a somewhat surprising decision, the Florida judge came to the opposite conclusion. He reasoned that the evidence O’Keeffe sought was too old to be relevant. This is a dubious ruling given FRE 401, which provides that evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence. Evidence that Adelson was foul-mouthed in the past surely makes it at least a little more probable that he is, as O’Keeffe wrote, foul-mouthed. Moreover, under FRE 405, when a person’s character trait is an essential element of a claim or defense, as it is in the Hong Kong case, “the character or trait may … be proved by relevant specific instances of the person’s conduct.”
The judge also focused on the Eleventh Circuit’s admonition to examine § 1782 applications to ensure that they are not mere fishing expeditions or vehicles for harassment. The judge found that O’Keeffe was trying to harass Adelson because her subpoena contained search terms “so embarrassing and prejudicial to Adelson that the court will not repeat them in this Order.” In the context of the case, I question this reasoning. Presumably O’Keeffe has some basis for thinking that the search terms could appear in documents in Zukov’s possession or at least that Adelson had used the terms at some time in the past. It seems appropriate to me to inquire about whether that’s so, in a lawsuit Adelson brought in which the matter at issue is precisely whether Adelson is “foul-mouthed.”
A last comment. It appears that O’Keeffe brought other § 1782 applications around the country in connection with this case. I wonder whether this case would have been a good candidate for consolidation by the JPML—a topic I raised back in 2011.