Doe v. Exxon Mobil Corp.

JOHN DOE I, et al., Plaintiffs, v. EXXON MOBIL CORPORATION, et al., Defendants.

Case No. 1:01-cv-1357 (RCL/AK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

August 10, 2020

UNDER SEAL

MEMORANDUM OPINION

Before the court is another discovery battle in a nearly two-decade-old war between fourteen individual plaintiffs and defendants Exxon Mobil Corporation (EMC) and its subsidiary Exxon Mobil of Indonesia (EMOI) (together "Exxon"). The plaintiffs allege that that they (or their next of kin) suffered human rights abuses as a result of Exxon's Indonesian operations.

Through three motions (ECF Nos. 657/659, 702, and 711) the plaintiffs present five discovery disputes to the court. They ask the Court to determine (1) whether they may conduct discovery of documents located in Indonesia, (2) whether Exxon representatives must sit for another round of depositions, (3) whether Exxon must respond to their requests to admit that documents are authentic and regularly maintained business records, (4) whether they may take depositions by videoconference, and (5) whether they may take their own trial depositions.

Upon consideration of the motions, briefs, replies, surreply, notices, and exhibits, the Court will (1) deny the request to compel production of documents stored only in Indonesia, (2) permit a limited continuation of Rule 30(b)(6) depositions, (3) defer ruling on the request to compel Exxon to admit that documents are authentic and regularly maintained business records, (4) grant leave to take depositions remotely, and (5) deny without prejudice leave to take trial depositions.

I. BACKGROUND

The Court refers to its previous decisions extensively discussing this case's factual background and procedural history. See Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76 (D.D.C. 2019); Doe v. Exxon Mobil Corp., No. 01-cv-1357-RCL, 2019 WL 2348100, (D.D.C. June 3, 2019); Doe v. Exxon, Mem. Op. (Dec. 7, 2016) (ECF No. 586); Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75 (D.D.C. 2014); Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16 (D.D.C. 2008); Doe v. Exxon Mobil Corp., No. 01-cv-1357-LFO, 2006 WL 1193855, (D.D.C. May 3, 2006); Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005).

Briefly, this case arises out of harms that the plaintiffs allege they (or their next-of-kin) suffered because of Exxon's efforts to secure its natural gas facility in Aceh, Indonesia. The remaining claims are for torts governed by Indonesian law. See Doe, 391 F. Supp. 3d at 93.

II. LEGAL STANDARDS

The Court has "broad discretion" in defining the scope of discovery. Gilmore v. Palestinian Interim Self-Gov't Auth., 843 F.3d 958, 968 (D.C. Cir. 2016).

In general:

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). "When it is necessary to seek evidence abroad, however, the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses." Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court, S.D. Iowa, 482 U.S. 522, 546 (1987). And the Court must "demonstrate due respect for any special problem confronted by the foreign litiganton account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state." Id.

Upon motion and demonstration that the parties cannot resolve their dispute without judicial intervention, the Court may order a party to meet its discovery obligations. Fed. R. Civ. P. 37.

III. ANALYSIS

A. Motion to Discover Documents Located in Indonesia

The plaintiffs request an order permitting discovery of corporate documents stored in Indonesia. The Indonesian Embassy and the State Department, however, have objected to even limited discovery in Indonesia. See Letter from Embassy of the Republic of Indonesia to the Court (Sept. 25, 2018) (ECF No. 644-1); Letter from Hon. John B. Bellinger, III, Legal Advisor, U.S. Dep't of State to the Court (June 15, 2005) (ECF No. 91-1); see also Br. of United States as Amicus Curiae 8-9, Exxon Mobil Corp. v. Doe, 554 U.S. 909 (2008) (No. 07-81). When the State Department expresses its opinion on a particular course of litigation, the Court defers to "the considered judgment of the Executive on a particular question of foreign policy." Cf. Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004).

From the start of this litigation, the Court directed that "[d]iscovery should be conducted in such a manner so as to avoid intrusion into Indonesian sovereignty" and warned that "there will be firm control over any discovery conducted by [the] plaintiffs." Doe, 393 F. Supp. 2d at 29. The Court may limit the scope of discovery for good cause. Fed. R. Civ. P. 26(c). And both protecting American foreign-policy interests and respecting Indonesian sovereignty constitute good cause to limit discovery. See Aérospatiale, 482 U.S. at 546; see also Simon v. Republic of Hungary, No. 10-cv-1770 (BAH), 2012 WL 13069771, at *8 (D.D.C. Sept. 30, 2012) (declining to permit discovery on comity grounds). Therefore, the Court will continue to limit the scope of discoveryto preclude the plaintiffs from compelling the disclosure of documentary evidence located exclusively in Indonesia.

The plaintiffs' counter-arguments are unavailing. First, most of the plaintiffs' arguments go to the Court's authority to issue the order they seek. The Court has no doubt that it may order a party before it to submit to extraterritorial discovery. But the Court declines to exercise its discretion to issue that order given the State Department's concerns. Second, despite the plaintiffs' arguments to the contrary, limiting discovery is consistent with the Court's prior rulings. The Court has permitted the plaintiffs to discover documents when copies exist both within and outwith Indonesia. See Order 2 (May 3, 2006) (ECF No. 158). But it has not permitted discovery of documents located exclusively in Indonesia. Third, whether Exxon has agreed to conduct some depositions in Indonesia does not alter this Court's general prohibition on Indonesian discovery. The Court would consider a foreign-policy based objection to holding those depositions, but it will not ratchet down its protections for American foreign policy interests. Fourth, the fact that discovery in other cases occurs in Indonesia does not change the calculus in this case, which intrinsically concerns the Indonesian military. Finally, in camera review of the documents would not change the harms to Indonesian sovereignty from ordering discovery in Indonesia. In camera review might protect Indonesian confidentiality interests but not would not respect Indonesian sovereignty interests because the Court would substitute its judgment for the Government of Indonesia's. See Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 921 (D.C. Cir. 1984) ("The prerogative of a nation to control and regulate activities within its boundaries is an essential, definitional element of sovereignty.").

The plaintiffs may not compel Exxon to produce documents exclusively stored in Indonesia. To the extent, however, that any documents can be found outside of Indonesia, the plaintiffs may discover those non-Indonesian copies.

B. Motion to Compel Rule 30(b)(6) Testimony

In 2007, the plaintiffs deposed three 30(b)(6) witnesses as part of jurisdictional discovery. The plaintiffs now request an order compelling EMC and EMOI to designate 30(b)(6) representatives to be deposed on fifty-four topics. Exxon argues that the plaintiffs covered or could have covered all of the grounds in their 2007 depositions.

A party deposes a corporation by outlining the topics of the deposition and asking the corporation to designate persons to testify. Fed. R. Civ. P. 30(b)(6). A 30(b)(6) representative "must testify about information known or reasonably available to the [corporation}. Id. Generally, a deponent, including a 30(b)(6) corporate representative, may only be deposed once without leave of court. Fed. R. Civ. P. 30(a)(2)(A)(ii). Upon motion, however, the Court must grant leave unless the second deposition would be unreasonably cumulative or burdensome or the information could be obtained from another source. See Fed. R. Civ. P. 30(a)(2) (citing Fed. R. Civ. P. 26(b)(1)-(2)); see also Judicial Watch, Inc. v. Dep't of Commerce, 34 F. Supp. 2d 47, 55 (D.D.C. 1998).

Consistent with these principles, the Court will direct EMC and EMOI to designate representatives for depositions because the two-stage discovery process curtailed the scope of the 2007 depositions. See Mem. 3-4 (May 3, 2006) (ECF No. 159); Mem. Order (Mar. 6, 2006) (ECF No. 138); see also Pls.' Reply Br. on Mot. Compel 30(b)(6) Testimony 11-12 (collecting examples of limited scope of depositions). To avoid unreasonably cumulative depositions, however, the plaintiffs may not ask the representatives about any documents that it had access to at the time of the original depositions. This condition should address Exxon's concerns about both limiting thescope of the depositions and maintaining the bar on discovering materials located in Indonesia. If Exxon is correct that the plaintiffs have no new ground to cover, preparing for the depositions should pose little burden. If Exxon is incorrect, however, the plaintiffs must have the opportunity to question EMC and EMOI representatives about new evidence — particularly about the allegations of negligent supervision and hiring.¹

C. Motion to Compel Responses to Requests for Admission

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