Rainsy

Filing 68

ORDER by Magistrate Judge Donna M. Ryu on Parties' Dispute re Protective Order, re 61 , 62 , 65 , 66 Discovery Letter Briefs. (dmrlc1, COURT STAFF) (Filed on 10/24/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAM RAINSY,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-mc-80258-DMR
ORDER ON PARTIES' DISPUTE RE
PROTECTIVE ORDER

v.
CHEVRON CORPORATION,

Re: Dkt. Nos. 61, 62, 65, 66

Defendant.

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Applicants Sam Rainsy and Filing Victims Before the International Criminal Court

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(collectively, “Applicants”) filed an ex parte application for an order pursuant to 28 U.S.C. § 1782

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granting leave to obtain documents and information from Chevron Corporation (“Chevron”)

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related to two foreign proceedings: (1) a pending Communication (complaint) by the Filing

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Victims to the International Criminal Court (“ICC”); and (2) a defamation action brought by a

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member of the Cambodian government against Sam Rainsy pending in a Cambodian court.

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[Docket No. 1.] Applicants generally sought documents and information related to the July 2016

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murder of Cambodian political commentator Dr. Kem Ley at a Caltex service station in Phnom

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Penh, Cambodia. Caltex is a Cambodian affiliate of Chevron. See id. The undersigned granted

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the application on February 9, 2017, noting Chevron’s rights to challenge the order in further

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proceedings. [Docket No. 10.] After Applicants served their subpoena on Chevron, Chevron
moved to vacate the order granting the application and to quash the subpoena. [Docket No. 14.]
In its motion, Chevron argued in part that the February 9, 2017 order must be vacated as to
the ICC Filing Victims because federal law bars the use of section 1782 to obtain discovery for
use in connection with ICC proceedings. 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,

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2017 Order).] In relevant part, the August 4, 2017 order sets forth the parties’ agreements about

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the actions Chevron would take that would be deemed “full and complete compliance with the

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Subpoena.” Id. at 2-4. These actions include specified searches and factual representations by

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Chevron, as well as the production of responsive documents subject to the court’s entry of a

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proposed production and protective order, which the court directed as follows:

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United States District Court
Northern District of California

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Within 21 days of entry of this stipulation, the parties will submit to
this Court a [Proposed] Production and Protective Order in
substantially the same form as the Model Protective Order for cases
in this District. Chevron Corporation may mark relevant documents
as “Confidential” pursuant to the terms of the Production and
Protective Order.
Id. at ¶ 7. The parties were unable to agree upon the terms of the production and protective order
and submitted a joint letter outlining their disputes. [Docket No. 47.]
The court held a hearing on the joint discovery letter on September 28, 2017 and ruled on
several disputes. [Docket Nos. 58 (Sept. 28, 2017 Minute Order); 60 (Hr’g Tr.).] At that
proceeding, the court heard argument regarding whether the production and protective order

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should include a so-called “use restriction” restricting Chevron’s entire production for use only in

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the Sam litigation and the ICC proceedings (the “underlying litigation”). Hr’g Tr. 10 (“[Chevron]

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[is] requesting . . . that all of the documents be subject to the use restriction; that they can only be
for use in the foreign proceedings.”). Chevron explained that its production includes sensitive
information that it seeks to maintain as confidential, namely, information identifying its
Cambodian affiliate’s employees. Chevron described its concerns for the safety of those
individuals. Id. at 21-22, 25. It confirmed that information about Cambodian employees is the
only sensitive information in its production. Id. at 22. Chevron also generally noted that as a third

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party, it did not wish to have its documents and information “used in whatever political battle is

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going on in [Cambodia].” Id. at 27. Chevron conceded that a use restriction “is not automatic in

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every [§] 1782 proceeding,” and that the decision of whether to include a use restriction in the

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production and protective order is within the court’s discretion. Id. at 25, 27. See also In re

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Accent Delight Int’l Ltd., 869 F.3d 121, 134 (2d Cir. 2017) (“Section 1782 leaves to the district

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court’s discretion both the decision to grant discovery and to ‘prescribe the practice and

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procedure’ for its production. . . . [s]ection 1782 entrusts to the district courts many decisions

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about the manner in which discovery under the statute is produced, handled, and used.”).

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In response, Applicants explained that they seek the ability to use Chevron’s production

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“for any litigation appeals or other proceedings” related to the underlying litigation, including

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entirely new proceedings related to Dr. Ley’s murder:

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Let’s say that we discover through Chevron’s documents that there
is a malignant government actor that could be brought in to a
litigation in Cambodia. We would want to be able to use the
materials for that.
Hr’g Tr. 12; see also 28-29. Applicants acknowledged Chevron’s interest in maintaining the

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confidentiality of information identifying specific individuals in Cambodia, and agreed to
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implement heightened protections for such information. Hr’g Tr. 22, 23.

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United States District Court
Northern District of California

At the conclusion of the hearing, the court ordered further briefing on the issue of whether
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a use restriction should be included in the protective order. [Docket No. 58.] The parties timely
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filed the requested briefing. [Docket Nos. 61, 62.] In its briefing, Chevron proposed a “use
restriction” that it claimed would permit the Applicants to use Chevron’s production for other

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matters related to the underlying litigation. [Docket No. 62.] The court ordered the parties to
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meet and confer regarding Chevron’s proposal and to notify the court of any agreement reached.

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[Docket No. 63.] The parties were unable to reach agreement and submitted competing proposals
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governing the use of Chevron’s production. [Docket Nos. 65, 66.]

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The court determines that this matter can be decided without further oral argument. Civil
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L.R. 7-1(b). Having reviewed the parties’ proposals, the court adopts Applicant’s proposal and

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orders the parties to include the following provision in their production and protective order:
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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 nonconfidential 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.
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This provision adequately addresses Chevron’s concerns about protecting the only sensitive
information in its production, i.e. “personally identifying information designated as
‘Confidential.’” Chevron did not articulate other specific concerns about the use of its production
in proceedings related to the subject matter of the underlying litigation, which is the shooting
death of Dr. Ley. Accordingly, while heightened protections for confidential information about
individuals are appropriate, the court declines to exercise its discretion to adopt Chevron’s more
restrictive proposal.
The parties shall immediately meet and confer to complete the drafting process of the
remainder of the production and protective order, consistent with this order and the September 28,
2017 minute order. They shall submit a final proposed production and protective order for the
court’s approval within seven days of the date of this order.

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D

RDERE

OO
IT IS S

______________________________________
Donna M. Ryu . Ryu
aM
UnitedJStates Donn
udge Magistrate Judge

RT

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Dated: October 24, 2017

NO

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IT IS SO ORDERED.

S DISTRICT
TE
C
TA

FO

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UNIT
ED

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S

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RT
U
O

United States District Court
Northern District of California

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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.

R NIA

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H

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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.

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