v. Michael Eric A.B. Mak Shun Ming Hotung

Filing 12

ORDER DENYING GEORGE J. GROVER'S MOTION TO SET ASIDE ISSUANCE OF SUBPOENA. 7 (Illston, Susan) (Filed on 7/16/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 12-80118 SI

IN RE MICHAEL ERIC A.B. MAK,
PETITIONER ,
Plaintiff,

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ORDER DENYING GEORGE J.
GROVER’S MOTION TO SET ASIDE
ISSUANCE OF SUBPOENA.

v.
FOR THE ISSUANCE OF DISCOVERY IN
AID OF FOREIGN PROCEEDING
PURSUANT TO 28 U.S.C. 1782.,
Defendant.

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BACKGROUND

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On May 31, 2012, the Court issued an order granting Petitioner Michael Erik A.B. Mak Shun

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Ming Hotung’s ex parte application for the issuance of a subpoena pursuant to 28 U.S.C. § 1782.

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Petitioner Mak (“Petitioner”) sought to subpoena George J. Grover in connection with a divorce

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proceeding between petitioner and Chan Wei Guang currently taking place in the High Court of the

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Hong Kong Special Administrative Region Court of First Instance. According to petitioner, on April

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3, 2012, Grover presented an affidavit (the “Affidavit”) in which he stated Petitioner owns a collection

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of cars “worth more than US$50,000,000.” Hill Decl., Ex. A ¶ 19. Petitioner contests this assertion and

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petitioned this Court to issue a subpoena pursuant to 28 U.S.C. § 1782 in order to depose Grover.

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On May 31, 2010, the Court granted petitioner’s motion. In its order, the Court gave Grover 21
days to contest the subpoena. On June 25, 2012, Grover, proceeding pro se, filed a timely objection

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requesting this Court to quash the subpoena. Petitioner has filed an opposition to Grover’s motion to

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quash.

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DISCUSSION
Grover moves to quash the subpoena on the grounds that petitioner would not be entitled to take

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his deposition under applicable Hong Kong rules. Mot., Dkt 7 ¶ 1. He also argues that the court

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proceedings in Hong Kong are being held in private, and therefore “it is in the best interest of the

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children and the parties in this case who are both celebrities in Hong Kong, to have this information

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produced in court in private.” Id. ¶ 2. Finally, Grover argues that because he will be available to testify

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United States District Court
For the Northern District of California

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in Hong Kong as a witness, requiring him to testify at a deposition in San Francisco would be “both

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burdensome and duplicative,” and essentially “amoun[t] to a pretrial of a single issue.” Id. ¶¶ 5,7.

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Under 28 U.S.C. § 1782, federal courts are authorized to act upon foreign requests for assistance

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in obtaining documentary and testimonial evidence. A district court has discretion whether to grant

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Section 1782 discovery. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004). In

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issuing its May 31 Order, this Court found that petitioner had stated a compelling need to depose Grover

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in order to contest the assertions in the affidavit, which was to be used in Hong Kong divorce

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proceedings against petitioner.

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The Court is not persuaded that it should change its position in light of the arguments presented

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by Mr. Grover in his motion to quash. Regarding his first contention, it is irrelevant whether petitioner

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would be entitled to take the deposition under Hong Kong rules. The Supreme Court has consistently

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held that § 1782 does not contain a “foreign-discoverability requirement”—i.e., there is no requirement

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that the information sought be discoverable under the law governing the foreign proceeding. Id. at 260.

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The Supreme Court has also held that a § 1782(a) applicant is not required to show that United States

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law would permit “discovery in domestic litigation analogous to the foreign proceeding.” Id. at 263.

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Whether a deposition would be admissible in Hong Kong’s Courts is therefore not an issue in the instant

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request for discovery. If the Hong Kong Court determines that such discovery is not admissible under

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its rules, it may “place conditions on its acceptance of information, thereby maintaining whatever

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measure of parity it deems appropriate.” Id. at 244.

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Grover’s concerns regarding the privacy of his deposition can also be addressed by the Hong

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Kong Court after the deposition has been completed. As discussed above, that court may take steps to

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protect information obtained from Grover as it sees fit. This Court therefore does not anticipate that

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allowing a deposition here would be unduly prejudicial to Grover or the parties in this proceeding.

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Finally, the Court finds that Grover has not established that he would be unduly burdened by the

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discovery sought. Petitioner asserts that Grover is located approximately 20 miles from the location

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where he is requested to appear for the deposition, and that the papers which may be sought are also

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located in the Northern District. While Grover has stated he plans to travel to Hong Kong and testify,

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the Court finds that requiring him to attend a deposition in San Francisco would not be unduly

United States District Court
For the Northern District of California

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burdensome.

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CONCLUSION
For the foregoing reasons, the Court DENIES Grover’s motion to set aside the subpoena.

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IT IS SO ORDERED.

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Dated: July 16, 2012

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SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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