Opinion · Court of Appeals for the Eleventh Circuit

Lo Ka Chun v. Lo to

858 F.2d 1564

Type
Opinion
Court
Court of Appeals for the Eleventh Circuit
Jurisdiction
Federal
Date
1988-11-08
Topic
general

How later courts describe this case

  • seeking the issuance of subpoenas duces tecum to residents of the United States who were non-party witnesses in an action pending in Hong Kong
  • remanding for determination as to whether evidence sought in the United States is discoverable in Hong Kong
  • remanding case for a determination as to whether evidence sought by foreign litigant in United States is discoverable in foreign jurisdiction
  • relying on Trinidad and Tobago

Citator

UpLaw has not yet analyzed Lo Ka Chun v. Lo to. The absence of a flag is not a finding that it is good law.

Cited by
32 opinions
LO KA CHUN v. LO TO,858 F.2d 1564(11th Cir. 1988)
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.
No. 87-6098.
United States Court of Appeals, Eleventh Circuit.
November 8, 1988.
Page 1565
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 THOMASfn*, Senior District Judge.
DANIEL HOLCOMBE THOMAS, Senior District Judge:
[1] 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 to28 U.S.C. § 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.


[2] 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 theTokyo 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.

[3] As Congress has given the district courts such broad discretion in granting judicial assistance to foreign countries, thisPage 1566court may overturn the district court's decision only for abuse of discretion.In re Request for Judicial Assistance from theSeoul 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.

[4] It is apparent that the district court did not abuse its discretion.1However, 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 mustdecide whether the evidence would be discoverable ina foreign country before granting assistance.[citations omitted] (emphasis added).


[5]In re Request for Assistance from Ministry of Legal Affairs ofTrinidad and Tobago,848 F.2d 1151,1156(11th Cir. 1988). The district court herein made no determination as to the discoverability of the evidence contemplated herein.

[6] Moreover, a decision rendered by the English House of Lords,South Carolina Insurance Co. v. Assurantie Maatschappy "De ZevenProvicien" NV; South Carolina Insurance Co. v. Al Ahlia InsuranceCo., and Another,House of Lords (1987) 1 AC 24, (1986) 3A11 ER 487 (1986) 3 WLR 398, (1986), 2 Lloyd's Rep. 317, calls into question the discoverability of the requested evidence in the courts of Hong Kong.

[7] Therefore, in accordance withIn re Request for Assistance,supra,we hereby REMAND this cause to the district court for a determination as to the discoverability of the evidence sought by appellee Lo To. Should the district court find the evidence discoverable under the laws of Hong Kong, the taking of the testimony and/or production of documents should commence in accordance with the Federal Rules of Civil Procedure, which will afford the appellant all of the protection afforded by Fed.R.Civ.P.26(c). However, if the court finds that the evidence is not discoverable, the subpoenas duces tecum are due to be quashed.Page 733
  1. Honorable Daniel H. Thomas, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation. ↩
  2. The Court correctly determined that the defendant Lo To (appellee herein) is an "interest party" in requesting the court's assistance and that the information sought is "for use in a proceeding" as required by Section 1782. ↩