Rainsy

Filing 42

Order by Magistrate Judge Donna M. Ryu granting 41 Stipulation re Subpoena to Chevron Corporation.(dmrlc1, COURT STAFF) (Filed on 8/4/2017)

WILLIAM E. THOMSON (SBN 187912)
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
2
333 South Grand Avenue
3 Los Angeles, CA 90071-3197
Telephone: [phone]
4 Facsimile: [phone]
1

5 ANDREA E. NEUMAN (SBN 149733)
[e-mail]
6 GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
7 New York, New York 10166-0193
8 Telephone: [phone]
Facsimile: [phone]
9 Attorneys for Chevron Corporation
10 J. Noah Hagey, Esq. (SBN: 262331)
[e-mail]
BRAUNHAGEY & BORDEN LLP
11
220 Sansome Street, Second Floor
12 San Francisco, CA 94104
Telephone: [phone]
13 Facsimile: [phone]
14 COUNSEL FOR APPLICANTS SAM RAINSY
and ICC FILING VICTIMS
15
UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17
OAKLAND DIVISION
18
Case No. 4:16-mc-80258-DMR
19 In re Ex Parte Application of SAM RAINSY and
FILING VICTIMS BEFORE THE
20 INTERNATIONAL CRIMINAL COURT,
21

Applicants,

22 For an Order Pursuant to 28 U.S.C. § 1782
23 Granting Leave to Obtain Discovery for use in
Foreign Proceedings from:
24
CHEVRON CORPORATION, a
25 Delaware corporation headquartered in San
Ramon, California.
26
27

JOINT STIPULATION AND
[PROPOSED] ORDER

Respondent.

28

STIPULATION AND [PROPOSED] ORDER

Case No. 4:16-mc-80258-DMR

1

Pursuant to N.D. Cal. Local Rule 7-12, by and through their respective undersigned

2 counsel, Applicants Sam Rainsy and the Filing Victims (collectively, the “Applicants”) on the one
3 side, and Respondent Chevron Corporation on the other side, hereby stipulate as follows:
RECITALS

4
5

WHEREAS, Applicants filed an ex parte Application for an order pursuant to 28 U.S.C.

6 § 1782 granting leave to obtain six specified categories of documents from Chevron Corporation on
7 December 13, 2016 (Dkt. 1) related to two then-pending foreign proceedings: (1) A pending
8 Communication (complaint) submitted by attorney Richard Rogers on behalf of the Filing Victims
9 to the International Criminal Court (“ICC”); and (2) a defamation action brought by a member of
10 the Cambodian government against Sam Rainsy pending in a Cambodian court.
11

WHEREAS, the Honorable Donna M. Ryu granted the ex parte application on

12 February 9, 2017 (Dkt. 10, the “Order”), expressly noting Chevron Corporation’s rights to
13 challenge the Order in further proceedings before Magistrate Judge Ryu and/or District Judge
14 Gonzales Rogers.
15

WHEREAS, pursuant to the Order, Applicants served Chevron Corporation with a

16 Subpoena on or about February 14, 2017 (the “Subpoena”), requiring, subject to Chevron
17 Corporation’s objections and/or a Motion to Quash, the production of the same six categories of
18 documents in the possession, custody, and/or control of Chevron Corporation as follows:
19

1.

All audio or video recordings taken during the period of July 1-14, 2016

20 (collectively, the “Surveillance Videos”) in, around and/or at the Caltex gas station and onsite Star
21 Mart cafe therein located at the intersection of Monivong and Mao Tse Toung boulevards in Phnom
22 Penh, Cambodia (the “Caltex Station”).
23

2.

All documents and communications related to the Surveillance Videos,

24 including without limitation, their preservation, dissemination, editing and/or destruction.
25

3.

Documents sufficient to identify the names of managers and employees of the

26 Caltex Station during the period of July 1-14.
27

4.

Documents sufficient to identify managers or employees of the Caltex Station

28 who were terminated or resigned between July 10 and July 31.
1
STIPULATION AND [PROPOSED] ORDER

Case No. 4:16-mc-80258-DMR

1

5.

All communications with any agent, employee or instrumentality of the

2 Cambodian government regarding Dr. Kem Ley or his death.
3

6.

All documents and communications related to the shooting of Dr. Kem Ley.

4

WHEREAS, Chevron Corporation informed Applicants of objections to both the Section

5 1782 Application and the Subpoena’s discovery requests.
6

WHEREAS, an initial hearing was held in this matter on June 8 and the parties were

7 ordered to meet and confer further.
8

WHEREAS, the Parties have engaged in negotiations regarding the application and the

9 requests and seek to enter the following Stipulation and [Proposed] Order regarding Chevron
10 Corporation’s stipulated actions that shall be deemed full and complete compliance with the
11 Subpoena.
12

NOW THEREFORE, the parties hereto stipulate and agree as set forth

13 below.
14

STIPULATION

15

Pursuant to N.D. Cal Local Rule 7-12, the parties hereby stipulate as follows:

16

1.

The Parties agree that Chevron Corporation’s (on behalf of its relevant

17 subsidiar(ies)) search of available documents, including electronically stored information (ESI), of
18 the following identified custodians, using the following agreed upon search terms (in English and
19 Khmer script/unicode) provided to Chevron Corporation by Applicants will constitute full and
20 complete compliance by Chevron Corporation with the diligent search requirement of the
21 subpoena:
22

a. Custodians:

23

•

The two managers whose job responsibilities involved visiting the site

24

where the incident occurred, and their company-issued electronic devices

25

if used to store information or communicate about the Incident via non-

26

email media, if any.

27
28

•

Chevron Corporation’s Policy, Government & Public Affairs custodians
(inside or outside of Cambodia), if any, and Cambodia country
2
STIPULATION AND [PROPOSED] ORDER

Case No. 4:16-mc-80258-DMR

1

manager(s), if any, who had communications about the Incident with any

2

Cambodian governmental officials, agents, or representatives (including

3

police or military).

4

•

5

Global Security and Environmental and Safety personnel, if any, who
conducted or commissioned any investigation into the Incident.

6

•

Any other Chevron Corporation (or subsidiary) custodian identified by

7

reasonable and customary due diligence as having relevant, unique

8

information regarding the Incident (e.g., mere receipt of a news report

9

regarding the Incident does not qualify).

10

b. Search terms (in English and Khmer script/unicode, with the Khmer
script/unicode to be provided by Applicants in Appendix A, attached):

11
12

•

Kem

13

•

Ley

14

•

(Cambodia or Phnom or Bokor or Caltex or Monivong) and (assassin! or

15

kill! or shoot! or murder! or death or victim)

16

•

CCP

17

•

“Hun Sen”

18

c. Chevron Corporation will produce responsive, non-privileged or otherwise

19

unprotected hard copy (non-ESI) documents in the possession, custody or

20

control of the custodians identified in Paragraph 1(a).

21

2.

Chevron Corporation represents that it and its relevant subsidiar(ies)’ interactions

22 with the Cambodian government, agencies and/or officials related to the Incident were limited to
23 cooperating with police inquiries and providing testimony at trial. Chevron Corporation further
24 represents and warrants that (a) neither it nor its relevant subsidiar(ies) prepared any formal
25 investigative report or conducted an investigation into the Incident as it was an external event being
26 investigated and addressed by the Cambodian authorities. Neither Chevron Corporation nor its
27 relevant subsidiar(ies) have any information or belief that documents in such categories (regarding
28
3
STIPULATION AND [PROPOSED] ORDER

Case No. 4:16-mc-80258-DMR

1 communications with the Cambodian government or an investigation or report of the Incident), if
2 they exist, would not be captured by the agreed-upon searches noted in Paragraph 1 above.
3

3.

The Parties agree that Chevron Corporation’s production of all responsive, non-

4 privileged or non-work-product-protected documents located pursuant to Paragraph 1 above,
5 excluding documents or portions of documents related to human resource issues, such as
6 counseling, and business impact and accounting related issues (for avoidance of doubt, statements
7 about details of the Incident itself will be produced, with redactions excluding portions related to
8 human resource issues, such as counseling, and business impact and accounting related issues), and
9 its production of the log described in Paragraph 5 below will constitute full and complete
10 compliance by Chevron Corporation with the subpoena.
11

4.

The time period applicable to the foregoing searches and document productions

12 shall be from July 1, 2016 to December 31, 2016.
13

5.

All responsive documents will be produced within 21 days of the Court’s entry of

14 the [Proposed] Production and Protective Order addressed in paragraph 7 below. Chevron
15 Corporation will produce a privilege log conforming to the Federal Rules of Civil Procedure for
16 any document or thing withheld on the basis of any applicable privilege or protection.
17

6.

Chevron Entities will produce to Applicants a sworn witness declaration in the form

18 appended as Appendix B (the “Chevron Declaration”).
19

7.

Within 21 days of entry of this stipulation, the parties will submit to this Court a

20 [Proposed] Production and Protective Order in substantially the same form as the Model Protective
21 Order for cases in this District. Chevron Corporation may mark relevant documents as
22 “Confidential” pursuant to the terms of the Production and Protective Order.
23

8.

As consideration for this declaration as well as Chevron’s agreement to the other

24 terms of this Stipulation and [Proposed] Order, Applicants agree, represent and warrant that no
25 additional subpoenas have been or shall be served and/or discovery requests shall be made on
26 Chevron Corporation or its subsidiaries or affiliates in connection with any of the foreign
27 proceedings at issue in this matter.
28 IT IS SO STIPULATED.
4
STIPULATION AND [PROPOSED] ORDER

Case No. 4:16-mc-80258-DMR

1 DATED: August 3, 2017

GIBSON, DUNN & CRUTCHER LLP

2

By:

3

/s/ William E. Thomson
William E. Thomson

Attorneys for Respondent Chevron Corporation

4

5 Pursuant to Local Civil Rule 5-1(i)(3), the above-listed filing attorney certifies that all other
6 signatories listed, and on whose behalf this filing is submitted, concur in this filing’s content and
7 have authorized its filing.
8
9
10
11
12

DATED: August 3, 2017

BRAUNHAGEY & BORDEN LLP
By:

/s/ Jonas Noah Hagey
Noah Hagey

Attorneys for Applicants Sam Rainsy and Filing
Victims

S DISTRICT
TE
C
TA

A

LI

ER

FO

onn
Judge D

H

19

RT

18

a M.

NO

17

R NIA

S

UNIT
ED

RT
U
O

13 PURSUANT TO STIPULATION, IT IS SO ORDERED.
4
14 DATED: August 3, 2017
_____________________________________
DERED
SO OR
Honorable Donna M. Ryu
IT IS
15
United Stated Magistrate Judge
16
Ryu

N

F
D IS T IC T O
R

C

20
21
22
23
24
25
26
27
28
5
STIPULATION AND [PROPOSED] ORDER

Case No. 4:16-mc-80258-DMR