IN RE DIDI GLOBAL INC. SECURITIES LITIGATION

Background

The plaintiffs moved to compel deposition testimony from Didi Global Inc.’s Rule 30(b)(6) witness. Rule 30(b)(6) allows a party to designate a witness to testify on an organization’s behalf about specified topics. The requested testimony concerned Didi’s discussions and communications with Chinese regulators before Didi’s initial public offering and listing on the New York Stock Exchange.

Didi’s witness, Jimin Pang, refused to fully answer dozens of questions about Didi’s interactions with Chinese regulatory agencies. Didi’s counsel asserted that the witness could not discuss the specifics of regulatory meetings. Didi later told the plaintiffs that Chinese law prevented Didi from providing discovery—including documents and interrogatory answers—about those interactions.

The plaintiffs submitted an expert report stating that most of the requested information did not involve topics restricted by Chinese law and that disclosure of information implicating such topics could be permitted unless a Chinese government authority had designated it confidential. Didi submitted two expert reports asserting that Chinese law prohibited disclosure without government authorization and that Didi and its employees could face serious legal consequences. Didi also submitted a declaration from its general counsel describing an instruction allegedly received from a Chinese governmental authority, but the declaration did not identify when or from whom the instruction came, what it said in detail, or its legal basis.

Legal standard

The court explained that a foreign law restricting disclosure does not eliminate an American court’s authority to order a party subject to its jurisdiction to produce evidence. When deciding whether to order discovery despite foreign-law objections, the court weighs the interests of the United States and the foreign country. The relevant considerations include the importance of the information to the case, the specificity of the request, where the information originated, whether other ways of obtaining it are available, and how compliance or noncompliance would affect important national interests. The court gave limited weight to the hardship of compliance because that factor was not among the factors identified by the Supreme Court.

Court’s analysis

The court found that the expert reports left it unclear whether Chinese law actually prohibited the requested testimony. It nevertheless concluded that compelling disclosure was appropriate even if Chinese law did prohibit it.

The court gave substantial weight to the United States’ interest in its securities markets and in fully adjudicating matters in its courts. The action arose from Didi’s 2021 initial public offering and listing on the New York Stock Exchange, and the plaintiffs’ claims heavily relied on Didi’s interactions with Chinese regulators.

The court recognized that China had legitimate interests in enforcing its data-privacy, state-secret, and criminal laws. But it found no reliable evidence that the Chinese government had objected to disclosure or determined that disclosure would threaten its national interests. The court also stated that the broad flexibility of Chinese law in defining state secrets weakened the connection between China’s legitimate interests and withholding the testimony.

The remaining factors also favored disclosure. The requested information was important to the plaintiffs’ ability to prove their claims, and the deposition topics were specific. The court found no other readily available means of obtaining the information. It rejected Didi’s suggestion that the plaintiffs should first use the Hague Convention on Evidence, explaining that courts are not required to use that procedure first and that requests under the Convention could cause uncertain and substantial delays. Although the information originated in China, the court found that this consideration was outweighed by the lack of an effective alternative means of obtaining it.

The court also found that Didi had not shown that disclosure would likely result in the severe criminal penalties described by its experts. The examples cited involved military secrets, cooperation with foreign intelligence services, payment for sensitive information, or information expressly designated confidential by the Chinese government. The court found that none of those circumstances applied here. It also noted that Didi had provided no information showing that a Chinese person or entity had been penalized under the relevant Chinese laws for complying with a discovery demand from a United States court.

Disposition

Judge Lewis A. Kaplan granted the plaintiffs’ motion to compel, identified as Docket 244. The court ordered Didi Global Inc. to produce, on a mutually agreeable date on or before February 21, 2025, a Rule 30(b)(6) witness who would testify about the topics covered by the plaintiffs’ October 4, 2024, modified deposition topics. The opinion resolved a discovery dispute and did not decide the parties’ underlying securities claims.