Lo Ka Chun v. Lo To, 87-6098
| Decision Date | 08 November 1988 |
| Docket Number | No. 87-6098,87-6098 |
| Citation | 858 F.2d 1564 |
| Parties | In re LO KA CHUN (a/k/a Brian Lo), Plaintiff, v. LO TO, Defendant-Appellee, and Law Tsoi, (An action in the Hong Kong High Court, Action # 2015 of 1980), Defendant, and Ida Li, Ira Lo, Ada Lo and Dixon Li, Third Party Witnesses-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David S. Bowman, Pompano Beach, Fla., Harry D. Polatsek, Leonard A. Sclafani, Ft. Lauderdale, Fla., for appellants.
Steven E.M. Hartz, Miami, Fla., Walter B. Stahr, Cleary, Gottlieb, Steen & Hamilton, Hong Kong, for appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HILL and ANDERSON, Circuit Judges, and THOMAS *, Senior District Judge.
This case involves an appeal from the district court's discovery order of May 19, 1987, wherein the district court authorized the issuance of subpoenas duces tecum to residents of the United States who are non-party witnesses in an action pending in Hong Kong. The district court's order was issued pursuant to 28 U.S.C. Sec. 1782(a) which provides:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court ...
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
The history of Section 1782 reveals Congress' wish to strengthen the power of district courts to respond to requests for international assistance. In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1218 (9th Cir.1976). With its action, Congress also attempted to stimulate reciprocity. John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3rd Cir.1985). However, Congress gave the district court the discretion to decide whether to honor the requests for assistance. Letters Rogatory from Tokyo, Japan, 539 F.2d at 1219.
As Congress has given the district courts such broad discretion in granting judicial assistance to foreign countries, this court may overturn the district court's decision only for abuse of discretion. In re Request for Judicial Assistance from the Seoul District Criminal Court, Seoul, Korea, 555 F.2d 720, 724 (9th Cir.1977). Appellant herein charges that the district court abused its discretion in issuing the discovery order in that the discovery contemplated would "neither be permissible nor admissible or usable" under Hong Kong law. To the contrary, the appellee argues that the discovery he requests is both available and admissible pursuant to the laws of Hong Kong.
It is apparent that the district court did not abuse its discretion. 1 However, subsequent to this district court's decision, this court, in interpreting Section 1782 stated:
While a district court generally should not decide whether the requested evidence will be admissible in the foreign court, ... the district court must decide whether the evidence would be discoverable in a foreign country before granting assistance. [citations omitted] (emphasis added).
In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1156 (11th Cir.1988). The district court herein made no determination as to the...
To continue reading
Request your trial
-
In re Commissioner's Subpoenas, No. 02-10418.
...and mandatory limitation of the discretion of a district court to grant requests made under 28 U.S.C. § 1782. See Lo Ka Chun v. Lo To, 858 F.2d 1564, 1566 (11th Cir.1988) (relying on Trinidad and Tobago in a case involving a letter of request of a private litigant and holding that the distr......
-
United Kingdon v. U.S., No. 00-11114
...pursuant to 1782 has been committed by Congress to the sound discretion of the district court. See, e.g., Lo Ka Chun v. Lo To, 858 F.2d 1564, 1565-66 (11th Cir.1988); In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1154 (11th Cir.1988); S. ......
-
APPLICATION OF HÖRLER
...judicial proceeding. 28 U.S.C. § 1782 (West 1966) ("The district court ... may order him to give his testimony ...); Lo Ka Chun v. Lo To, 858 F.2d 1564 (11th Cir.1988) (district court has the discretion to determine whether to honor request for assistance); In re Letters Rogatory from Tokyo......
-
Gianoli Aldunate, Application of
...In re Request from Crown Prosecution Service of United Kingdom, 870 F.2d 686, 692-93 & n. 7 (D.C.Cir.1989); Lo Ka Chun v. Lo To, 858 F.2d 1564, 1566 (11th Cir.1988); In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1156 (11th Cir.1988), cert......
-
The Growing Circuit Split About ' 1782 ' Can It Be Used For Private Arbitration?
...981 F.2d 1 (1st Cir. 1992) (evidence sought under ' 1782 must be discoverable in forum of underlying dispute); Lo Ka Chun v. Lo TO, 858 F.2d 1564 (11th Cir. 1988); In re Trinidad and Tobago, 848 F.2d 1151 (11th Cir. 1988) 6. Compare In re Ishihara Chemical Co., 251 F.3d 120, 125 (2d Cir. 20......
-
The Growing Circuit Split About ' 1782 ' Can It Be Used For Private Arbitration?
...981 F.2d 1 (1st Cir. 1992) (evidence sought under ' 1782 must be discoverable in forum of underlying dispute); Lo Ka Chun v. Lo TO, 858 F.2d 1564 (11th Cir. 1988); In re Trinidad and Tobago, 848 F.2d 1151 (11th Cir. 1988) 6. Compare In re Ishihara Chemical Co., 251 F.3d 120, 125 (2d Cir. 20......
-
28 U.S.C. § 1782: A Powerful Tool In Global Disputes
...the jurisdiction of the foreign tribunal. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004); Lo Ka Chun v. Lo To, 858 F.2d 1564 (11th Cir.1988). Section 1782 may be of particular interest in intellectual property disputes, since these often have the cross-border aspects t......