DocketNumber: Miscellaneous Action H-16-1135
Citation Numbers: 357 F. Supp. 3d 592
Judges: Miller
Filed Date: 1/8/2019
Status: Precedential
Modified Date: 7/25/2022
Pending before the court is a motion filed by petitioners RSM Production Corporation and Jack J. Grynberg's (collectively, "Petitioners") that contains a motion to administratively reopen this case, a motion to compel production of emails, and motion for leave to take third-party deposition. Dkt. 28. Respondent Noble Energy, Inc. ("Noble") filed a response, Petitioners filed a reply, and Noble filed a surreply. Dkts. 39, 40, 42. After considering the briefing, evidence, and applicable law, the court is of the opinion that the motion to reopen the case should be GRANTED, the *594motion to compel production of emails should be GRANTED IN PART, and the motion for leave to take a third-party deposition should be DENIED.
I. BACKGROUND
On May 18, 2016, Petitioners filed an ex parte petition and application for an order under
The briefing and affidavits submitted with the current motion indicate that Noble provided documents prior and produced a Rule 30(b)(6) deponent as required by the court. See, e.g. , Dkt. 28. The parties agreed to focus on the emails of Susan Cunningham after the deposition, and Noble proposed search terms for Susan Cunningham's emails.
Petitioners communicated with Noble in July 2017 after the first motion to dismiss was denied and requested that the parties complete the discovery ordered by the court.
Petitioners request that the court (1) administratively reopen the case; (2) compel Noble to produce Cunningham's emails based on certain search terms; and (3) grant leave for Petitioners to subpoena and depose Cunningham, who is no longer employed by Noble. Dkt. 28. Noble is opposed to all of the requested relief and argues that the two-year delay and amended pleading in Israel has altered the balance of the factors the court originally considered when it granted Petitioners' application for § 1782 discovery. Dkt. 39. Noble thus requests that the court revisit its § 1782(a) determination in light of the changed posture of the case.
II. LEGAL STANDARD
As to Petitioners' motion to reopen this administratively closed case, administrative closure "is merely a case-management tool used by district court judges to obtain an accurate count of active cases." CitiFinancial Corp. v. Harrison ,
As to the request to compel production of emails and authorize Cunningham's deposition, the court must consider not only its inherent authority to manage discovery, but also whether it should reconsider its ruling allowing discovery in aid of a foreign proceeding under
III. ANALYSIS
The court will first determine whether the circumstances have changed sufficiently for it to reconsider its ruling allowing discovery under § 1782. It will then decide whether the discovery requested by Petitioners is warranted and whether to reinstate this case to its active docket.
With regard to the § 1782 factors, the court finds that the only factors that it needs to revisit due to the change in circumstances are the first and the fourth factors.
The fourth factor-whether the discovery is unduly intrusive or burdensome-has changed more significantly. It has been more than two years since Noble proposed search terms to Petitioners, and, since that time, employees with knowledge are no longer employed by Noble. Dkt. 39. Additionally, Noble originally identified and collected emails after the Rule 30(b)(6) deposition, but when Petitioners were unresponsive and appeared to have abandoned the case, Noble placed emails it had been storing into dormant storage status.
Petitioners argue that their delay has not prejudiced Noble because Noble has already identified and collected responsive emails. Dkt. 40. They assert that they "may be willing to share in the cost of production, but only as to reasonable costs as pre-approved by the Court," and they contend that the costs cited by Noble are "clearly excessive." Dkt. 40. They further urge that they need to depose Cunningham because she "alone can authenticate and explain the context of her numerous email communications."
Noble argues that deposing Cunningham is unnecessary because Petitioners have learned what Cunningham knows through the Rule 30(b)(6) deposition of Noble's corporate representative, who prepared extensively with Cunningham prior to the deposition. Dkt. 42. Moreover, Noble asserts that it would be a burden to allow the deposition and document production because, since Cunningham is no longer employed by Noble, it would be required to reestablish a relationship with her, enter a representation agreement with her, and prepare her to testify about events that occurred over ten years ago. Dkt. 39. Additionally, the attorney who assisted in collecting the documents originally is no longer employed by Noble, so another attorney will have to learn about this case and Noble's document collection efforts.
While the court agrees that it is more burdensome at this point for Noble to produce the emails, Noble has already collected the emails, and Petitioners have offered to pay the reasonable costs of production. The court understands that the employees are no longer available if Noble has questions when reviewing the emails, but the court does not find that this added burden is sufficient to change the calculus. Accordingly, Petitioners' motion to compel production of the emails is GRANTED IN PART. Noble shall provide the relevant non-privileged emails it collected with the search terms it originally proposed, but Petitioners must pay the reasonable cost of reactivating the data and reviewing the emails.
Petitioners also seek leave to depose Cunningham even though the court originally only ordered one Rule 30(b)(6) deposition. Petitioners have argued but have not shown that the deponent provided by Noble was inadequately prepared. The court therefore DENIES Petitioners' motion for leave to take Cunningham's deposition.
Finally, as to the motion to reopen, the court finds that it is appropriate to reopen this case for a limited amount of time so that Noble can review and produce relevant and unprivileged documents.
*598IV. CONCLUSION
Petitioners' motion (Dkt. 28) is GRANTED IN PART AND DENIED IN PART.
The motion, to the extent is seeks leave to take Cunningham's deposition, is DENIED.
The motion, to the extent it requests that the court compel Noble to produce documents, is GRANTED IN PART. The parties shall meet and confer about the costs of producing these documents on or before January 15, 2019, and they shall advise the court's case manager if they are unable to come to an agreement. Noble shall provide the relevant non-privileged emails it collected with the search terms it proposed on October 12, 2016 (see Dkt. 29-3), or before February 22, 2019. Petitioners must pay the reasonable cost of reactivating the data and reviewing the emails.
Petitioners' motion, to the extent it request that the court reopen this case, is GRANTED. However, the parties are ORDERED to advise the court on or before March 1, 2019, about the status (and completion) of discovery so that the court may expeditiously enter a final judgment.
Cunningham was the Senior Vice President of Exploration and was in charge of Noble's foreign exploration projects during the relevant time period. Dkt. 28, App. A1, Ex. 2.
Noble argues that the third factor has also changed because, since Noble is now "directly accused ... of misconduct," the attempt to obtain discovery from Noble "is even more of an end-run around Israeli discovery rules." Dkt. 39 at 14. Noble has not provided any evidence, however, that Petitioners' request for § 1782 discovery is an attempt to circumvent Israeli proof-gathering restrictions. Absent evidence about how the change in Noble's status in the Israeli case impacts discovery rules in Israel, the court finds it inappropriate to alter the weight of this factor. Noble additionally asserts that the Israeli court has expressed that the case is "borderline" and that, given the potential lack of merit of Petitioners' claims in that case, the requested discovery here is not proportional. While proportionality is an important consideration in discovery disputes, the court will not endeavor to assess the viability of the Israeli lawsuit with the limited information available. The court will instead assess proportionality, to the extent appropriate in this type of case, by ensuring that the requested discovery is not overly burdensome in accordance with the fourth Intel factor.
In the Israeli lawsuit, Petitioners allege that Noble was a majority participant in a consortium that received licenses and permits to explore natural gas deposits in Israel's exclusive economic zone. See Dkt. 25 (explaining the allegations in the Israeli case).
The court agrees with Petitioners that Noble can review these documents for relevancy and privilege for less than $ 30,000. The court encourages the parties to attempt to reach an agreement regarding the cost before approaching the court to determine how many hours and what rate is appropriate for a routine matter like document review.
If, after Cunningham's emails are produced, Petitioners can show an actual issue with authentication or specific issues that need Cunningham's clarification, the court may entertain a motion to take a very limited deposition on written questions.