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In re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation

United States District Court, N.D. California

June 1, 2017

IN RE VOLKSWAGEN “CLEAN DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION This Order Relates To: Dkt. No. 3144.

          ORDER GRANTING MOTION OF VOLKSWAGEN AG AND AUDI AG FOR RELIEF CONCERNING PRETRIAL ORDER NO. 12

          CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

         Before the Court is a motion brought by Volkswagen AG and Audi AG (the “German Defendants”), seeking interpretation and enforcement of Pretrial Order No. 12 (the “Stipulated Protective Order” or “PTO 12”). Having considered the motion and the response of the Plaintiffs' Steering Committee (“PSC”) (Dkt. No. 3179), the Court GRANTS the motion and enters the protective order and declaratory judgment set forth below.

         BACKGROUND

         I. Pretrial Order No. 12

         PTO 12 governs the production and disclosure of Confidential and Highly Confidential material produced as part of this MDL (collectively, “Protected Material”). (See Dkt. No. 1255.) Pursuant to PTO 12, the German Defendants produced Protected Material in response to discovery requests by the PSC. The PSC maintains this Protected Material in a database, which also includes documents produced by Volkswagen Group of America, Inc. (“VWGoA”). (See Dkt. No. 3179.)

         Under limited circumstances, PTO 12 allows the PSC, as a “Receiving Party, ” to disclose Protected Material to litigants in ongoing state court actions, referred to by PTO 12 as “Coordinated Litigation.” (Dkt. No. 1255 § 7.2.11.) PTO 12 provides that the proposed recipient of such Protected Material in the Coordinated Litigation must “agree[] to be bound by this Order and sign[] the certificate attached as Exhibit A.” (Id.) Importantly for purposes of the current dispute, PTO 12 also provides that “the proposed recipient is only permitted to receive Protected Material that was produced by Producing Parties that are also parties in the Coordinated Litigation involving the proposed recipient.” (Id.)

         11. The Virginia Coordinated Litigation

         A number of plaintiffs who opted out of the 2.0-liter settlement approved by this Court have chosen to litigate their claims in Coordinated Litigation in Virginia state court. In December 2016, counsel for plaintiffs in the Virginia Coordinated Litigation (“Virginia Counsel”) sought access to the MDL discovery database maintained by the PSC. (Dkt. No. 3179-1 ¶ 9.) Virginia Counsel agreed to be bound by PTO 12 and executed the certificate attached as Exhibit A to PTO 12. (Dkt. No. 3179-5.) PSC counsel subsequently provided Virginia Counsel with a username and password to the MDL database. The database included Protected Material produced by both the German Defendants and VWGof A. (Id.) However, only VWGoA has been served with process or appeared in the Virginia Coordinated Litigation. (Dkt. No. 3144 at 4.)

         Upon learning that Virginia Counsel had obtained access to the entire MDL discovery database, counsel for the German Defendants requested that the PSC take steps to ensure that Virginia Counsel did not have access to Protected Material produced by the German Defendants. (Dkt. No. 3144-2 ¶ 3.) The PSC subsequently blocked Virginia Counsel's access to the database and asked Virginia Counsel to return or destroy all of the German Defendants' documents. (Id. ¶¶ 6-7.) Counsel for the German Defendants and the PSC have subsequently discussed reactivating the VWGoA-only portion of the PSC database for Virginia Counsel. (Dkt. No. 3144 at 9.)

         III. The German Defendants' Motion

         The German Defendants have indicated that Virginia Counsel has filed a motion in Virginia state court to compel VWGoA to produce not only the German Defendants' documents, but also “all documents previously produced through the PSC database, regardless of the source of the document (i.e., Volkswagen Group of America, Inc., Volkswagen AG, Audi, Porsche, Bosch, etc.)” (Dkt. No. 3192 at 3 (emphasis omitted).) The German Defendants seek a protective order and declaratory relief to prevent Virginia Counsel from obtaining access to the Protected Material produced by them in this MDL.

         DISCUSSION

         I. Jurisdiction

         The Court issued PTO 12 pursuant to its inherent authority and its authority under Federal Rules of Civil Procedure 16 and 26. (See Dkt. No. 1255 § 1.2.) By executing Exhibit A to PTO 12, Virginia Counsel agreed “to submit to the jurisdiction of the United States District Court for the Northern District of California for ...


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