United States District Court, N.D. California
SECOND ORDER ON PARTIES' DISPUTE RE PROTECTIVE
ORDER RE: DKT. NOS. 69, 70
M. Ryu, United States Magistrate Judge.
Sam Rainsy and Filing Victims Before the International
Criminal Court (collectively, “Applicants”) filed
an ex parte application for an order pursuant to 28 U.S.C.
§ 1782 granting leave to obtain documents and
information from Chevron Corporation (“Chevron”)
related to two foreign proceedings: (1) a pending
Communication (complaint) by the Filing Victims to the
International Criminal Court (“ICC”); and (2) a
defamation action brought by a member of the Cambodian
government against Sam Rainsy pending in a Cambodian court.
[Docket No. 1.] Applicants generally sought documents and
information related to the July 2016 murder of Cambodian
political commentator Dr. Kem Ley at a Caltex service station
in Phnom Penh, Cambodia. Caltex is a Cambodian affiliate of
Chevron. See id. The undersigned granted the
application on February 9, 2017. [Docket No. 10.] Following
service of the subpoena on Chevron, Chevron moved to vacate
the order granting the application and to quash the subpoena.
[Docket No. 14.]
August 3, 2017, before the court ruled on Chevron's
motion, the parties filed a joint stipulation and proposed
order resolving their disputes regarding the subpoena, which
the court entered as an order on August 4, 2017. [Docket No.
42 (Aug. 4, 2017 Order).] In relevant part, the parties
agreed that Chevron would produce responsive documents
subject to the court's entry of a proposed production and
protective order. Id.
parties were unable to agree upon the terms of the production
and protective order. [See Docket No. 47.] At a
hearing on September 28, 2017, the court ruled on several
disputes related to the production and protective order.
[Docket Nos. 58 (Sept. 28, 2017 Minute Order); 60 (Hr'g
Tr.).] Following further briefing, on October 24, 2017, the
court ordered the parties to include the following so-called
“use restriction” in the production and
Applicants are entitled to use Discovery Material or
Protected Material in the Underlying Litigation, including to
investigate claims and defenses in those proceedings, and may
share non-confidential Discovery Material with
representatives, consultants, partners and stakeholders
(collectively “Stakeholders”) involved in the
Underlying Litigation. “Underlying Litigation”
shall include not only the pending ICC and Cambodian
Litigation, but also any appeals thereof or applications to
reopen or reconsider, as well as any other legal proceedings,
i.e., new legal action(s) filed by or against one or
more of the Applicants, arising out of or relating to the
subject matter of the Underlying Litigation.
Applicants may not disclose Discovery Material or Protected
Material to a Stakeholder unless all personally identifying
information designated as “Confidential” has been
securely redacted from such document or summary thereof.
Nothing herein shall preclude Applicants from publicly
disclosing their legal filings, provided that Applicants
shall not disclose any personally identifying information
designated as “Confidential” by Chevron.
[Docket No. 68.] The court ordered the parties to meet and
confer to complete the drafting process for the remainder of
the production and protective order in a manner consistent
with its rulings, and ordered the parties to submit a final
document for the court's approval within seven days.
parties were again unable to reach agreement, and instead
submitted individual discovery letter briefs. [Docket Nos. 69
(Applicants' Letter), 70 (Chevron's Letter).]
Unfortunately, since the parties failed to submit a joint
letter setting forth the disputes in accordance with the
court's Standing Order, it is difficult to determine
which issues remain in dispute and each side's position
on those issues. Submitting competing redlined versions of
the proposed production and protective order is no substitute
for a joint letter. Nevertheless, the court has reviewed the
parties' submissions and determines that this matter can
be decided without further oral argument. See Civ.
L.R. 7-1(b). The court makes the following rulings on what
appear to be the four main areas of dispute:
Section 1, language related to use restriction: The
parties appear to have adopted certain language from this
district's model protective order which is set forth
immediately below in non-bolded text. Applicants propose
adding the bolded language to “clarify” the
This Order does not confer blanket protections on all
disclosures or responses to discovery and that [sic] the
protection it affords from public disclosure and use extends
only to the limited information or items that are entitled to
“confidential” treatment or to the extent
disclosures or responses to discovery are subject to the use
restriction adopted by the Court (Dkt. 68) and
herein . . .
paragraph renders the use restriction meaningless and should
be excised in its entirety. The October 24, 2017 order
limited the use of “Discovery Material” or
“Protected Material” to use “in the
Underlying Litigation.” [See Docket No. 68 at
3-4.] In other words, Chevron's entire production is
subject to a use restriction. Some of the confusion in the
proposed paragraph flows from the parties' adoption of
language from the model protective order, which is meant to
address typical civil cases where the protective order does
not confer blanket protection, but instead protects
information that is designated as confidential under the
order. By contrast, in this case, Chevron's entire
production is subject to a blanket use restriction. For this
reason, the whole paragraph cited above, including bold and
non-bold text, should be stricken from the protective order.
Section 1, subject matter of the “Underlying
Litigation”: In its October 24, 2017 order,
the court noted that the “subject matter of the
underlying litigation . . . is the shooting death of Dr.
Ley.” [Docket No. 68 at 4.] Applicants propose to add
the following bolded language in the definition of the
subject matter of the ICC Litigation in Section 1:
. . . any appeals thereof or applications to reopen or
reconsider and/or new proceedings filed by or against one or
more of the Applicants arising out of or relating to the
subject matter of the ICC Litigation or Cambodian Litigation,