1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PACIFIC WINE DISTRIBUTORS, INC., et Case No. 20-cv-03131-JSC al., 8 Plaintiffs, ORDER RE: VITOL MOTION TO 9 COMPEL COMPLIANCE WITH v. SUBPOENA 10 VITOL INC., et al., Re: Dkt. No. 389 11 Defendants.

12 13 Pending before the Court is Defendant Vitol’s motion to compel Chevron to comply with 14 Request No. 2 of Vitol’s Rule 45 subpoena. (Dkt. No. 389.) In particular, Vitol seeks to require 15 non-party Chevron to produce its entire discovery production, including unredacted expert reports 16 and deposition transcripts, made in Persian Gulf Inc. v. BP W. Coast Prod. LLC, No. 3:15-CV- 17 01749-L-BGS (S.D. Cal.). After carefully considering the parties’ written submissions, and 18 having the benefit of oral argument on May 11, 2022, the Court DENIES Vitol’s motion as it has 19 not shown that all of Chevron’s production in Persian Gulf is relevant to a claim or defense in this 20 case. The Court nonetheless orders Chevron to produce what it offered in January 2022. 21 LEGAL STANDARD 22 Federal Rule of Civil Procedure 45 governs discovery of nonparties by subpoena. “The 23 scope of the discovery that can be requested through a subpoena under Rule 45 is the same as the 24 scope under Rule 26(b).” Maplebear Inc. v. Uber Techs., Inc., No. 21-MC-80007-SK, 2021 WL 25 1845535, at *1 (N.D. Cal. Mar. 23, 2021). Under Rule 26(b), a party “may obtain discovery 26 regarding any nonprivileged matter that is relevant to any party’s claim or defense and 27 proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). Evidence is relevant if it has 1 the action.” Fed. R. Evid. 401. Vitol, the party that issued the subpoena, bears the burden of 2 demonstrating relevancy. Pers. Audio LLC v. Togi Ent., Inc., No. 14-MC-80025 RS (NC), 2014 3 WL 1318921, at *2 (N.D. Cal. Mar. 31, 2014). Further, Rule 45 provides that the Court shall 4 quash or modify a subpoena that imposes an undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). 5 DISCUSSION 6 Vitol has not met its burden of showing that every single document, expert report, and 7 deposition transcript (from January 2013 to the present) produced by Chevron in Persian Gulf is 8 relevant to this litigation. While some of the discovery is likely relevant to claims and defenses in 9 this action, Vitol does not even attempt to show how all of it is. This omission is especially 10 glaring given that Vitol has the benefit of the production to the California Attorney General’s 11 Office and the summary judgment briefing in the Persian Gulf litigation. In light of those 12 productions, Vitol should be able to make targeted requests that fill the gaps as opposed to seeking 13 a blanket order directing production of everything produced in Persian Gulf. 14 The cases upon which Vitol relies in is motion are very different from the issue here: each 15 involved clone discovery of litigation involving the same defendant and the same factual 16 allegations. In Schneider v. Chipotle Mexican Grill, Inc., 2017 WL 1101799 (N.D. Cal. Mar. 24, 17 2017), for example, the “clone discovery” involved false advertising claims against the same 18 defendant and based on the same representations. Id. at *2-3; see also Costa v. Wright Med. 19 Tech., Inc., 2019 WL 108884, at *1 (D. Mass. Jan. 4, 2019) (ordering clone discovery in product 20 liability action from a product liability lawsuit involving same defendant and product; denying 21 such discovery for lawsuits involving same defendant but different product or defect); Whitman v. 22 State Farm Life Ins. Co., 2020 WL 5526684 *2 (W.D. Wash. Sept. 15, 2020) (ordering clone 23 discovery from case “the same defendant, the same policy form, the same claims, and the same 24 alleged wrongful conduct alleged in the instant action”). Here, in contrast, the Persian Gulf 25 litigation does not involve any of the same parties and it alleges a different conspiracy. 26 In its reply memorandum, Vitol cites two cases involving discovery from non-parties. 27 Neither is persuasive. In In re McKesson Governmental Entities Average Wholesale Price 1 McKesson and First Databank entered into a scheme to artificially increase the published average 2 wholesale price for prescription drugs. Id. at 597. McKesson served a subpoena for documents 3 produced in another case which challenged the exact same scheme. Id. The producing party did 4 not dispute the relevance of the documents sought; instead, it argued only that the deliberative 5 process privilege applied to many of the documents and it would be an undue burden for the party 6 to have to engage in that privilege review. Id. at 599 (the producing party “does not argue with 7 Defendant’s assertion of relevance or dispute its need for the documents”). Not so here. And, 8 here, unlike McKesson, the allegedly fraudulent scheme in the subpoenaed litigation involves 9 different players, different time periods, and different methods, although it allegedly resulted in a 10 similar result: higher gasoline prices for some of the same time period. 11 In Tessera, Inc. v. Micron Technology, Inc., 2006 WL 733498 (N.D. Cal. March 22, 2006), 12 the non-party objected to production of the requested litigation documents on the grounds that 13 none were relevant. The court rejected that argument. There was no argument, or discussion, as 14 to whether some, but not all, documents were relevant; instead, the non-party made an all or 15 nothing argument. Id. at *3-4. Here, in contrast, Chevron argues that Vitol has not shown that all 16 of the documents Chevron produced in litigation involving a different alleged conspiracy are 17 relevant and that instead Vitol must seek more targeted discovery. The Court agrees. 18 Vitol’s emphasis on the lack of burden to Chevron misses the point. First, before the Court 19 addresses burden, the subpoenaing party must demonstrate relevance. Second, it ignores the 20 burden of producing confidential business information. Every time a business is required to 21 permit its confidential information to be shared there is a risk, and thus a burden, that it will not be 22 maintained as confidential notwithstanding protective orders. Sometimes the need for the 23 information outweighs that burden, but Vitol does not even address that burden, let alone establish 24 its need for all of the information. 25 Accordingly, Vitol’s motion to compel is DENIED. As Chevron no doubt possesses some 26 relevant information, the parties shall meet and confer in person or by video regarding Chevron’s 27 production of documents as offered in its January 31, 2022 correspondence. (Dkt. No. 412-1 at ¶ 1 by its oral argument offer to consider Vitol’s requests that are tethered to gaps left by the summary 2 || judgment record, the California Attorney General’s production, and the productions of the other 3 non-parties. 4 This Order disposes of Docket No. 389. 5 IT IS SO ORDERED. 6 || Dated: May 11, 2022 Set) 7 ne

JKCQUELINE SCOTT CORL

8 United States District Judge 9 10 11 a 12

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