Case of the Day: In re O’Keeffe
Posted on April 18, 2016
The case of the day is In re O’Keeffe (3d Cir. 2016). I’ve written about the case before. Kate O’Keeffe was a reporter with the Wall Street Journal. She wrote an article that described casino magnate Sheldon Adelson as “foul-mouthed.” Adelson sued for defamation in Hong Kong, and O’Keeffe sought issuance of a subpoena to Kirk A. Thorell, who as an auditor who worked on audits for one of Adelson’s companies. Adelson moved to quash the subpoena, but the district court denied the motion, and Adelson appealed.
The Third Circuit affirmed. On the circumvention factor, the court noted, correctly, that there is no requirement to seek discovery in the foreign forum first. The court also rejected the opinion of a Florida court on a related § 1782 application on the relevance of the discovery sought. I discussed the Florida decision in my prior post. The most interesting point, though, was the discussion of the receptivity factor under Intel:
We have never required district courts to determine whether particular evidence would be admissible in a foreign court. Instead, Intel suggests the inquiry is more generally the receptivity to “U.S. federal-court judicial assistance.” Here, the District Court noted that Hong Kong is a signatory to the Hague Evidence Convention, and thus the Hong Kong court is likely “receptive to American judicial assistance.”
This way of putting it suggests that receptivity imposes a very low bar, and indeed, it suggests almost a per se rule that any state that is party to the Evidence Convention will be receptive to evidence obtained in the United States. This is an interesting view, though I wonder whether it’s right to assume that every state that joined the Convention did so in order to make more evidence from abroad available in its courts rather than to regulate requests for evidence coming from abroad (perhaps in light of the expectation, which turned out to be incorrect at least as regards the United States, that courts would require first resort to the Convention before allowing use of their domestic proof-gathering mechanisms).