Doe v. Exxon Mobil Corp.

539 F.Supp.3d 59

John DOE I, et al., Plaintiffs,

v.EXXON MOBIL CORPORATION, et al., Defendants.

Case No. 1:01-cv-1357-RCL

United States District Court, District of Columbia.

Signed April 26, 2021

Filed May 7, 2021

Terrence P. Collingsworth, International Rights Advocates, Kathleen M. Konopka, Office of the Attorney General for D.C., Robert W. Cobbs, Agnieszka M. Fryszman, Joseph M. Sellers, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Charles J. Ogletree, Jr., Charles J. Ogletree Consulting, Cambridge, MA, Paul L. Hoffman, Pro Hac Vice, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA, Poorad Razavi, Pro Hac Vice, Theodore J. Leopold, Cohen Milstein Sellers & Toll PLLC, Palm Beach Gardens, FL, Brent Nelson Rushforth, Potomac, MD, Tarek Farouk Maassarani, Takoma Park, MD, for Plaintiffs John Doe Corporation, John Doe, IV, John Doe VII, Jane Doe I, Jane Doe, II, Jane Doe, III, Jane Doe, IV, Jane Doe.

Agnieszka M. Fryszman, Robert W. Cobbs, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Paul L. Hoffman, Pro Hac Vice, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA, Poorad Razavi, Pro Hac Vice, Theodore J. Leopold, Cohen Milstein Sellers & Toll PLLC, Palm Beach Gardens, FL, Brent Nelson Rushforth, Potomac, MD, for Plaintiffs VII Jane Doe, VIII Jane Doe.

Agnieszka M. Fryszman, Kit A. Pierson, Nicholas J. Jacques, Robert W. Cobbs, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Poorad Razavi, Pro Hac Vice, Cohen Milstein Sellers & Toll PLLC, Palm Beach Gardens, FL, Brent Nelson Rushforth, Potomac, MD, Rylee K. Sommers-Flanagan, State Capitol, Helena, MT, for Plaintiff All Doe Plaintiffs.

Craig Aaron Benson, Justin A. Anderson, Alex Young K. Oh, Mitchell D. Webber, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Jonathan D. Hacker, Walter E. Dellinger, III, Pro Hac Vice, O'Melveny & Myers LLP, Martin J. Weinstein, Robert J. Meyer, Willkie Farr & Gallagher, LLP, Washington, DC, Jaren Janghorbani, Pro Hac Vice, Theodore V. Wells, Jr., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Patrick J. Conlon, Exxon Mobil Corporation, Spring, TX, for Defendants Exxon Mobil Corporation, Exxon Mobil Oil Indonesia Inc.

Craig Aaron Benson, Alex Young K. Oh, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Martin J. Weinstein, Robert J. Meyer, Willkie Farr & Gallagher, LLP, Walter E. Dellinger, III, Pro Hac Vice, O'Melveny & Meyers, LLP, Washington, DC, Theodore V. Wells, Jr., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Defendants Mobil Corporation, Mobil Oil Corporation.

UNSEALED

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

At his deposition, the corporate representative of defendant Exxon Mobil Oil of Indonesia ("EMOI") refused to answer most of the substantive questions posed to him. Instead, he repeatedly read nonresponsive statements verbatim from pre-prepared notes.

After the deposition, the plaintiffs sought sanctions and to compel responsive answers. Astonishingly, the defendants—EMOI and its parent company ExxonMobil Corporation—cross-moved for sanctions. Given the deponent's recalcitrance, the plaintiffs’ motion has merit. The defendants’ motion, however, is meritless.

Upon consideration of the motions (ECF Nos. 777, 782) and the parties’ briefs and evidentiary submissions (ECF Nos. 777, 782, 790/791, 792), by separate order the Court will GRANT the plaintiffs’ motion to compel and motion for sanctions and DENY the defendants’ motion for sanctions.

I. BACKGROUND

The Court refers to its previous decisions, which extensively discuss this case's factual background and extended procedural history. See Doe v. Exxon Mobil Corp. , Mem. Op. (Aug. 10, 2020), ECF No. 719; 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 Mobil Corp. , 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 human rights abuses that the plaintiffs allege they (or their next-of-kin) suffered because of the defendants’ efforts to secure a natural gas facility in Aceh, Indonesia. The remaining claims are for torts governed by Indonesian law. See Doe , 391 F. Supp. 3d at 93.

A. Relevant Procedural History

Last summer, the parties brought several discovery disputes before the Court. See generally Mem. Op. (Aug. 10, 2020). As relevant here, the Court granted leave to take remote depositions because of the COVID-19 pandemic, id. at 7–8, and compelled the defendants to designate representatives to give additional 30(b)(6) depositions, id. at 5–6. It at first limited the depositions by forbidding the plaintiffs from questioning the deponents about documents the plaintiffs had access to before September 18, 2007. Order 1 (Aug. 10, 2020), ECF No. 720; see also id. Upon reconsideration, the Court modified the restrictions on the depositions to prohibit the plaintiffs only from re-asking questions to which a 30(b)(6) deponent previously provided a responsive answer. Order 4 (Oct. 14, 2020), ECF No. 758.

To ensure that it had time to handle any disputes, the Court also set a detailed timeline for litigating the scope of the depositions. It set deadlines for the parties to meet and confer about scope and scheduling, for the plaintiffs to notice the depositions, and for the defendants to seek a protective order. Id. at 4–5. The parties conferred and the plaintiffs noticed the depositions. See Pls.’ Mot., Ex. E, H, I–J. The defendants did not seek a protective order.

The Court also entered an order establishing a protocol for conducting remote depositions. See Order 3–9 (Sept. 24, 2020), ECF No. 750. The protocol requires counsel to act collegially, cooperatively, and reasonably. Id. at 7–8. It also tries to safeguard the integrity of remote depositions by limiting deponents’ ability to consult with other persons, id. at 5–7, and by forbidding deponents, while depositions are on the record, from "hav[ing] access to any form of information related to the litigation other than exhibits specifically marked and identified for the record by either side, including ... materials that contain any notes, files or documents that relate to the subject matter of the litigation," id. at 6.

B. Relevant Factual Background

On February 15, 2021 (Singapore Standard Time), the plaintiffs deposed Mark Snell, ExxonMobil's Asia Pacific regional general counsel. Kit Pierson questioned Mr. Snell for the plaintiffs; Alex Young K. Oh defended the deposition.¹

One telling excerpt from the first hour provides an example of how the deposition proceeded:

Plaintiffs’ Counsel (Mr. Pierson): Now, I want to begin by asking you about the information that was provided to EMOI officials about the human rights record of the Indonesian military in Aceh.

Defense Counsel (Ms. Oh): What topic does this relate to?

Plaintiffs’ Counsel: 2 and 3(d), among others. Now, my first question, sir —

Witness (Mr. Snell): Well, you have 34 topics, so it is probably better to be as specific as possible so that I can answer your questions accurately.

Plaintiffs’ Counsel: Well, sir, I will pose my questions clearly. I will pose my questions clearly. But in general this is encompassed, among other things, by 2 and 3(d). Did EMOI take steps to make sure that senior management was informed about the human rights record of the Indonesian military in Aceh?

Defense Counsel: So that's topic 2 and 3(d) you said, Mr. Pierson?

Plaintiffs’ Counsel: Go ahead, sir.

Defense Counsel: Is that correct?

Plaintiffs’ Counsel: Alex, I'm not going to spend the deposition answering your questions. If you have an objection, make an objection. Go ahead, sir.

Defense Counsel: I'm trying to make things clear, Mr. Pierson, unless you want it extremely muddy. Is it topic 2 and 3(d) that you just said?

Plaintiffs’ Counsel: Alex, I'm not playing those games with you. Sir, the question is —

Defense Counsel: You know what, I'm sorry, you need to check your tone and conduct and remain a professional here, okay? I do not appreciate your tone. You need to calm down, take a deep breath and be a professional here, Mr. Pierson.²

Plaintiffs’ Counsel: You know, that's a highly inappropriate remark, but I'm simply going to pose my question to the witness. Did EMOI take steps to make sure that senior management was informed about the human rights record of the Indonesian military in Aceh?

Defense Counsel: Objection to form.

Witness: If this is a reference to topic 3(d), topic 3(d) is your policies and practices regarding security for the Arun Project between 1 January 1999 and 30 June 13 2001 regarding planning, directions or instructions provided to security personnel, including any restrictions or limits placed on their conduct. It doesn't reference management.

Plaintiffs’ Counsel: Sir, my question is, did EMOI take steps to make sure that senior management was informed about the human rights record of the Indonesian military in Aceh? Will you answer that question?

Defense Counsel: Objection to form.

Witness: So in response to topic 2, EMOI is not aware of any human rights abuses, assaults, batteries, sexual abuse, torture, violence and other torts committed by any EMOI security employees at the Arun field operations. There was a violent civil war raging in Aceh during the relevant time periods between the government of Indonesia and the Aceh separatists who wanted independence from Jakarta, the Free Aceh Movement, or the Gerakan Aceh Merdeka, usually referred to as GAM. The decades-long conflict between the government of Indonesia and GAM erupted in terrible violence after the Suharto regime fell in 1998. I understand that a significant number of GAM fighters came into Aceh from other countries after 1998, and the government

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