Rio Tinto PLC v. Vale, S.A. et al

Filing 434

OPINION AND ORDER: The Court has jurisdiction, even post-judgment, to modify the Protective Order. There is good cause for the modification Vale requested, and Thiam has not shown any prejudice from the modification. In the exercise of the Court� 39;s discretion, Vale's requested modification is approved. Any objections to this Order must be filed by March 17, 2016. If no objections are filed by that time, Vale can provide the Thiam documents to the LCIA arbitrators. (Signed by Magistrate Judge Andrew J. Peck on 3/9/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RIO TINTO PLC,
:
Plaintiff,
:

14 Civ. 3042 (RMB)(AJP)
OPINION AND ORDER

-againstVALE S.A., et al.,

:
:

Defendants.

:

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ANDREW J. PECK, United States Magistrate Judge:
The issue before the Court concerns defendant Vale's application to use certain
material produced by co-defendant Thiam (and his banks) pursuant to the "Stipulated Protective
Order" (Dkt. No. 81), in the confidential LCIA arbitration between Vale and BSGR in London. By
Memo Endorsed Orders dated February 1, 2016 and February 19, 2016 (Dkt. Nos. 416, 424 & 426),
I allowed Vale to use the Thiam material in the London arbitration. Thiam filed objections (Dkt.
Nos. 521-22), and Judge Berman referred the matter to me to address whether the Court retained
jurisdiction to modify the Protective Order since the case has been dismissed (Dkt. No. 428). For
the reasons set forth below, I hold that the Court has such jurisdiction.
FACTS
The Protective Order
By letter dated August 11, 2014, Vale's counsel informed the Court that the parties
had agreed on a proposed Protective Order, with two disputed issues. (Dkt. No. 80.) Plaintiff Rio
Tinto did not want its confidential material to be usable in the London arbitration between Vale and
BSGR; the defendants - including Vale, BSGR and Thiam - took the opposite position. (Dkt. No.

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80.) The Court accepted defendants' language (with modification), including that a party could use
"information derived from any Protected Material in any other matter" (without actually disclosing
the Protected Material in such other matter). (Dkt. No. 81: Protective Order, § VI(1).)
The Protective Order further provided that: "Right to Further Relief. Nothing in this
Order abridges the right of any Party to seek its modification or relief from any of its provisions by
the Court in the future." (Dkt. No. 81: Protective Order, § XI(1).) The Protective Order further
provided that: "This Protective Order shall continue to be binding after the conclusion of this
Litigation . . . ." (Id. § XII(1); see also id. § III.)
ANALYSIS
It is black letter law that the Court has jurisdiction over the Protective Order even
after the case has been dismissed. As the Second Circuit repeatedly has held: "It is undisputed that
a district court retains the power to modify or lift protective orders that it has entered." In re Agent
Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir.) (citing cases), cert. denied, 484 U.S. 953, 108
S. Ct. 344 (1987). This remains true even after judgment:
"[A] protective order, like any ongoing injunction, is always subject
to the inherent power of the district court to relax or terminate the order, even
after judgment.
This retained power in the court to alter its own ongoing directives
provides a safety valve for public interest concerns, changed circumstances
or any other basis that may reasonably be offered for later adjustment."
Gambale v. Deutsche Bank AG, 377 F.3d 133, 141 (2d Cir. 2004) (quoting Poliquin v. Garden Way,
Inc., 989 F.2d 527, 535 (1st Cir. 1993)). The Second Circuit in Gambale reiterated that the "court's
supervisory power does not disappear because jurisdiction over the relevant controversy has been
lost." Gambale v. Deutsche Bank AG, 377 F.3d at 141; see, e.g., Pub. Citizen v. Liggett Grp., Inc.,
858 F.2d 775, 782 (1st Cir. 1988) ("[T]he courts and commentators seem unanimous in finding such

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an inherent power to modify discovery-related protective orders, even after judgment, when
circumstances justify." (citing cases & commentaries)), cert. denied, 488 U.S. 1030, 109 S. Ct. 838
(1989); 2 Silberberg, Spiro & Mogul, Civil Practice in the Southern District of New York § 23:15
("It is within the discretion of the district court to modify a protective order . . . . A protective order
may be modified even after settlement, final judgment on the merits, or dismissal."); 6 Moore's
Federal Practice § 26.106[1](3d ed. 2015) ("As long as a protective order remains in effect, the court
that entered the order retains the power to modify it, even if the underlying suit has been
dismissed.").1/
While Thiam concedes that the Court has jurisdiction over the Protective Order postdismissal to enforce confidentiality, Thiam asserts that the Court lacks jurisdiction to modify the
Protective Order. (See Dkt. No. 431: Thiam 3/7/16 Letter at 1-2.) Thiam cities no cases for this
argument, and the case law is to the contrary. See, e.g., Westchester Radiological Ass'n P.C. v. Blue
Cross/Blue Shield of Greater N.Y., Inc., 138 F.R.D. 33, 39 (S.D.N.Y. 1991) (Court exercises postjudgment authority to modify protective order based on paragraph allowing parties to seek
modification, similar to § XI(1) in the Rio Tinto Protective Order). Thiam further concedes the
Court's modification authority, stating:
Rule 26(c) of the Federal Rules of Civil Procedure does not refer to
modification of a protective order. Case law, however, recognizes that a
court has inherit authority to enforce or modify those provisions while they
remain in effect. [citing Agent Orange.] But this is not an unlimited grant of
jurisdiction. Modification is only appropriate if there are changed
circumstances or some compelling need.

1/

See also, e.g., S.E.C. v. One or More Unknown Purchasers of Sec. of Glob. Indus., Ltd., 11
Civ. 6500, 2014 WL 2158507 at *4 (S.D.N.Y. May 23, 2014); Eagle Star Ins. Co. v.
Arrowood Indem. Co., 13 Civ. 3410, 2013 WL 5322573 at *1 (S.D.N.Y. Sept. 23, 2013).

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(Thiam 3/7/16 Letter at 2; see also id. ("In summary, while a district court certainly has inherent
authority to modify or enforce a protective order post-judgment, that grant of jurisdiction is not
plenary or unlimited."); Dkt. No. 432: Thiam 3/9/16 Reply Letter at 1 ("Thiam does not contest that
a District Court has jurisdiction to enforce or modify a protective order that remains in effect postjudgment. . .").)2/
Thus, the real issue is not jurisdictional but rather whether there are "changed
circumstances" or "compelling need" to modify the Protective Order. The Court already has found
that there is (Dkt. Nos. 416, 424 & 426), and further explains its decision.3/
Vale seeks to use only eighty-three Thiam documents in the London arbitration
between Vale and BSGR. The number of documents is limited, BSGR already has seen these
documents, so the only expansion is to allow the London arbitrators to see this material, under the
strict confidentiality of such arbitration proceedings. Thus, the modification of the Protective Order
is limited.

2/

Judge Berman also raised the question of whether dismissal of the action terminated the
order of reference. (See Dkt. No. 428 ¶ 2(1).) There was no order or docket entry "closing"
or terminating the reference. While the reference is referred to in short hand as for "GPT,"
i.e., "general pretrial," such references also can include post-trial matters (e.g., discovery to
enforce a money judgment) or other non-dispositive matters. In any event, since Judge
Berman now referred the parties' disputes about the Protective Order to me (Dkt. No. 428,
¶ 1: "The parties' applications are referred to Judge Peck for consideration. See 28 U.S.C.A.
§ 636(b)(1)(a)."), that issue is moot.

3/

Thiam asserts that Vale violated § XII of the Protective Order, requiring return or destruction
of confidential material with 90 days of "Final Disposition" of the action. (Dkt. No. 431 at
4.) Vale correctly responds that "Final Disposition" is defined as "dismissal of all claims
and defenses in this action, with prejudice" (Dkt. No. 81: Protective Order, § I(8)), and the
Judgment dismissed Rio Tinto's state law claims without prejudice (Dkt. No. 408: Decision
& Order; Dkt. No. 409: Judgment).

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Second, the Protective Order was a "blanket" order and the Court never determined
that these documents (or any others) satisfied the "good cause" standards of Rule 26(c). See, e.g.,
Charter Oak Fire Ins. Co. v. Electrolux Home Prods., Inc., 287 F.R.D. 130, 132 (E.D.N.Y. 2012)
("an example of an 'extraordinary circumstance' [to modify a protective order exists] . . . when the
'[d]efendants were never required to show good cause for sealing various documents'"); Fournier
v. Erickson, 242 F. Supp. 2d 318, 341-42 (S.D.N.Y. 2003).
Third, it was plaintiff Rio Tinto that insisted that "confidential" documents in this
case not be usable in the London arbitration. (See page 1 above.) The defendants – Vale, BSGR
and Thiam – recognized that at least information derived from confidential material produced in this
case might be used in the London arbitration. (See page 2 above.) Thus, Thiam had no or minimal
reliance interest.
Fourth, there is a significant "changed circumstance." While Thiam is not a party to
the Vale - BSGR arbitration, he voluntarily filed a fifty page single spaced Witness Statement in that
arbitration on behalf of BSGR. (See Dkt. No. 430 at 3.) The LCIA tribunal found the Thiam
documents at issue relevant to the arbitration, ordered BSGR to obtain Thiam's consent to their use
in the arbitration, but Thiam refused. (Id. at 4 & n.9.) Modification of the Protective Order thus
assists the LCIA arbitrators, not interferes (as Thiam claims). This Court's modification of the
Protective Order does not allow new "discovery" or put any new obligations or any burden on
Thiam; it merely allows Vale to submit these eighty-three documents to the LCIA tribunal, to
contradict and impeach Thiam's Witness Statement. Thiam's submission of his Witness Statement
on behalf of BSGR in the LCIA arbitration provides good cause and changed circumstance for this
limited modification of the Protective Order.

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Finally, and significantly, Thiam has not shown how he would be prejudiced by the
proposed modification of the Protective Order. See, e.g., S.E.C. v. Merrill Scott & Assocs., Ltd.,
600 F.3d 1262, 1272 (10th Cir. 2010) ("Typically, when considering whether to modify a protective
order, courts examine any tangible prejudice to the party opposing modification that outweighs the
benefits of modification."); Charter Oak Fire Ins. Co. v. Electrolux Home Prods., Inc., 287 F.R.D.
at 134; Infineon Tech. AG v. Green Power Tech. Ltd., 247 F.R.D. 1, 3 (D.D.C. 2005).
CONCLUSION
The Court has jurisdiction, even post-judgment, to modify the Protective Order.
There is good cause for the modification Vale requested, and Thiam has not shown any prejudice
from the modification. In the exercise of the Court's discretion, Vale's requested modification is
approved.
Any objections to this Order must be filed by March 17, 2016. If no objections are
filed by that time, Vale can provide the Thiam documents to the LCIA arbitrators.

SO ORDERED.
Dated:

New York, New York
March 9, 2016

________________________________
Andrew J. Peck
United States Magistrate Judge
Copies by ECF to:

All Counsel
Judge Berman