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Rainsy v. Chevron Corp.

United States District Court, N.D. California

November 17, 2017

SAM RAINSY, Plaintiff,
v.
CHEVRON CORPORATION, Defendant.

          SECOND ORDER ON PARTIES' DISPUTE RE PROTECTIVE ORDER RE: DKT. NOS. 69, 70

          Donna M. Ryu, United States Magistrate Judge.

         Applicants 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.]

         On 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.

         The 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 protective order:

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. Id.

         The 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:

         1. 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 provision:

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 . . .

         This 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.

         2. 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, i ...

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