Plaintiffs seek to compel responses to a number of requests for production (“RFPs”) from AXA. The motion was filed with a Joint Stipulation (collectively referred to as Plaintiff's “Motion”). (J.S., Dkt. No. 59–1.) Plaintiffs submitted in support of their Motion a declaration of counsel and a number of exhibits. (Dkt. Nos. 60, 60–1.) AXA submitted two declarations in opposition, each attaching exhibits of their own. (Dkt. Nos. 62, 62–1 to–8, 63, 63–1.) Generally speaking, AXA resists discovery on the grounds that Plaintiffs should pursue discovery under international legal mechanisms because AXA is a French corporation, as well as various objections specific to particular RFPs. Both parties submitted supplemental memoranda regarding the Motion. (Dkt. Nos. 78, 79.) AXA submitted a declaration of counsel to accompany its supplemental briefing. (Dkt. No. 79–1.)

A telephonic hearing on the Motion was held on Wednesday, February 22, 2017.

Plaintiffs commenced this action by filing a complaint (the “Complaint”) against AXA and 10 Doe defendants in the Los Angeles County Superior Court on January 12, 2016. (Compl., Dkt. No. 1–1.) This is an insurance dispute, and the Complaint asserts claims of breach of duty to defend, breach of implied covenant of good faith and fair dealing, fraud, breach of implied-in-law contract or quasi-contract, promissory estoppel, unjust enrichment, breach of contract, and fraudulent concealment. (Id., ¶ 1.)

The Complaint alleges the following: Pursuant to an agreement with Metrolink, Connex operated commuter trains in Southern California between 2005 and 2010. (Compl., ¶¶ 12–13.) Under the Connex–Metrolink agreement, Metrolink agreed to maintain at least $150 million of liability insurance covering itself and Connex, and at the relevant time of the Complaint Metrolink had the necessary coverage from a number of insurers (the “Joint Stack Insurers”). (Id., ¶ 22–23.) Plaintiffs obtained their own insurance coverage for U.S. liabilities. (Id., ¶ 25.) Plaintiffs also were covered by policies issued to Plaintiffs' (apparently former) parent company, Veolia Environnement (“Veolia”),[1] including one such policy issued by AXA. (Id., ¶¶ 26–27.)

On September 12, 2008, a commuter train operated by Connex collided with a freight train operated by Union Pacific near the Chatsworth Station in Los Angeles County (the “Chatsworth Accident”), injuring more than 100 individuals and killing four. (Compl., ¶¶ 15–16.) This collision resulted in multiple lawsuits:

In light of the foregoing allegations, Plaintiffs contend that AXA is liable under various legal theories for its actions in inducing Plaintiffs to agree to their settlement with Metrolink, in inducing Plaintiffs to give up rights to the Joint Stack Insurers, and in refusing to defend Plaintiffs in the Joint Stack Insurers' Action. (Compl., ¶¶ 66–125.)

AXA filed its Answer on April 6, 2016. (Dkt. No. 1–3.) The following day, AXA filed a notice removing the action to the Central District. (Dkt. No. 1.) AXA cited diversity jurisdiction as the basis for federal jurisdiction, stating that both Plaintiffs are Delaware corporations with their principal places of business in Illinois and AXA is a French corporation. (Id., ¶ 4.) AXA also stated that the amount-in-controversy requirement was satisfied because Plaintiffs seek damages of at least $8 million. (Id., ¶ 3.)

*3 On, May 4, 2016, AXA filed a motion to dismiss the case for forum non conveniens. (Dkt. No. 14.) AXA contended that the instant action should proceed in France because AXA is a French corporation; the action stems from a French insurance policy to Plaintiffs' (French) parent company; and the insurance policy includes choice-of-law and forum-selection clauses providing that French law governs the policy and French courts have exclusive jurisdiction over disputes concerning the policy. (Dkt. No. 14–1 at 7.) AXA also noted that some of Plaintiffs' other insurers had filed suit against AXA in the Los Angeles County Superior Court in 2013, and that court had stayed the action on the grounds of forum non conveniens. (Id. at 7–8.) Plaintiffs opposed dismissal. (Dkt. No. 29.) On September 15, 2016, the District Court ruled on the papers and denied AXA's motion to dismiss. (Dkt. No. 47.) The District Court explained that federal law (not French law) applied to the interpretation of the forum-selection clause; because of this, the clause applied to Plaintiffs; but despite this, public interest factors weighed in favor of keeping the litigation in the Central District of California. (Id. at 4–5.) AXA sought (Dkt. No. 49) but was denied (Dkt. No. 53) certification of interlocutory appeal to the Ninth Circuit.

The case currently is in discovery. On January 20, 2017, Plaintiffs filed an ex parte application to shorten the briefing scheduling on its motion to compel production of documents (the instant Motion). (Dkt. No. 55.) Plaintiffs argued that it required prompt production of certain requested documents in order to prepare for depositions of AXA personnel beginning February 22, 2017. (Id. at 3, 5–6.) AXA opposed shortening the briefing schedule. (Dkt. No. 56.) AXA noted that the depositions would be taking place in France and that at the time there were depositions scheduled in both February and March, but that AXA had offered to make all witnesses available during the same week in March. (Id. at 2, 4–5.) The Court denied Plaintiffs' request for an expedited briefing schedule. (Dkt. No. 57.)

On February 6, 2017, the parties jointly filed a number of documents, including an application for the appointment of a commissioner for purposes of taking evidence in France pursuant to an expedited procedure permitted under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, U.S.T. 2555 (the “Hague Convention”). (Dkt. Nos. 67–69, 72.) Pursuant to the parties' agreement and the application, the commissioner would assist in, among other things, the taking of evidence in response to various document requests, the scope of which the parties had already agreed upon. (See Dkt. No. 69–2 at 6; id. Ex. 2.) The Court approved the application. (Dkt. Nos. 75, 76.)

Under the scheduling order in this case, discovery (fact and expert) is set to close on July 5, 2017. (Dkt. No. 41 at 23.) The last date for hearing motions is August 14, 2017, and trial is scheduled to begin on October 3, 2017. (Id.)

Under the Federal Rules of Civil Procedure (“FRCP”), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering [1] the importance of the issues at stake in the action, [2] the amount in controversy, [3] the parties' relative access to relevant information, [4] the parties' resources, [5] the importance of the discovery in resolving the issues, and [6] whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevance for purposes of FRCP 26 is not the same as under the Federal Rules of Evidence, as FRCP 26 states that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that ... the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii).

“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship v. Hearst Corp., 519 F. d 418, 429 (9th Cir. 1975)); see Bible v. Rio Props., Inc., 246 F.R.D. 614, 618 (C.D. Cal. 2007) (same); United States ex rel. O'Connell v. Chapman Univ., 245 F.R.D. 646, 648 (C.D. Cal. 2007) (same); see also United States v. McGraw–Hill Cos., No. CV 13–779–DOC (JCGx), 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (“Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” (citation omitted) (internal quotation marks omitted)). “[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper—especially when a party fails to submit any evidentiary declarations supporting such objections.” A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (citing Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996)).

*4 A party may serve on any other party an RFP within the scope of FRCP 26(b). Fed. R. Civ. P. 34(a). In response to an RFP, a party must either: (1) produce the requested document; (2) indicate that the requested document is not in the party's “possession, custody, or control”; or (3) object and include the reasons for the objection. Fed. R. Civ. P. 34(a)(1), 34(b)(2)(B). “The responding party has an obligation to conduct a reasonabl[e] inquiry into the factual basis of its responses to the request to produce documents.” Superior Commc'ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009); see A. Farber, 234 F.R.D. at 189–90. If the responding party does not offer a valid objection, it must produce all requested documents that are in its possession, custody, or control. Fed. R. Civ. P. 34(a)(1).

FRCP allows a party to avoid producing electronically stored information “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). However, to sustain such an objection in the face of a motion to compel, “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.” Id. However, even “[i]f that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C),” and the court also “may specify conditions for the discovery.” Id.

The Hague Convention “prescribes certain procedures by which a judicial authority in one contracting state may request evidence located in another contracting state.” Société Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 524, 107 S. Ct. 2542, 96 L.Ed. 2d 461 (1987). Under the Hague Convention, a judicial authority in one country can request an authority in another country to obtain evidence by sending to that other authority a Letter of Request. See Hague Convention, supra, art. 1. The Letter of Request must include the authorities both requesting its execution and requested to execute it, information about the parties, the nature of the proceedings in which the evidence is sought, and the evidence to be obtained. See id. art. 3. The judicial authority executing a Letter of Request is to do so “expeditiously” and generally applies its own law in the process. See id. art. 9. Both the United States and France have acceded to the Hague Convention. See Société Nationale, 482 U.S. at 524; Status Table, HHCH, https://www.hcch.net/en/instruments/conventions/status-table/?cid=82 (last updated Jan. 12, 2017).

The Supreme Court has held that the Hague Convention presents only an optional, rather than mandatory, procedure for taking evidence abroad, and the existence of the Hague Convention “[does] not deprive [a] District Court of the jurisdiction it otherwise possesse[s] to order a foreign national party before it to produce evidence physically located within a signatory nation.” Société Nationale, 482 U.S. at 536–40. Moreover, a litigant is not required to attempt discovery first under the Hague Convention before pursuing it by other means. See id. at 541–42.

Nonetheless, “the concept of international comity requires in this context a more particularized analysis of the respective interests of the foreign nation and the requesting nation.” Société Nationale, 482 U.S. at 543–44 (footnote omitted). While comity does not always require resort to the Hague Convention, a court should “scrutin[ize] in each case ... the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective.” Id. at 544. Regarding the last consideration, the Supreme Court recognized that the Hague Convention could be advantageous in some circumstances but unnecessarily burdensome in others. See id. at 542 (“In many situations the Letter of Request procedure authorized by the Convention would be unduly time consuming and expensive, as well as less certain to produce needed evidence than direct use of the Federal Rules.”); id. at 542 n.26 (“We observe, however, that in other instances a litigant's first use of the Hague Convention procedures can be expected to yield more evidence abroad more promptly than use of the normal procedures governing pre-trial civil discovery. In those instances, the calculations of the litigant will naturally lead to a first-use strategy.”).

*5 Providing further guidance, the Supreme Court in Société Nationalequoted the Restatement of Foreign Relations Law of the United States to identify the following factors as relevant to (though not exhaustive concerning) the comity analysis: the importance to the litigation of the documents or other information requested; the degree of specificity of the request; whether the information originated in the United States; the availability of alternative means of securing the information; and the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located. See 482 U.S. at 544 n.28. The Ninth Circuit has identified additional relevant factors: the extent and the nature of the hardship that inconsistent enforcement would impose upon the person, and the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992) (quoting United States v. Vetco Inc., 691 F.2d 1281, 1288 (9th Cir. 1981)).

Some countries have passed so-called blocking statutes “to preclude disclosure of otherwise discoverable information and documentary evidence” in foreign litigation. Lyons v. Bell Asbestos Mines, Ltd., 119 F.R.D. 384, 388 (D.S.C. 1988). “A blocking statute is a law passed by the foreign government imposing a penalty upon a national for complying with a foreign court's discovery request.” Id. (internal quotation marks omitted) (quoting In re Anscheutz & Co., GMbH, 754 F.2d 602, 614 (5th Cir. 1985), cert. granted and judgment vacated, 483 U.S. 1002, 107 S. Ct. 3223, 97 L.Ed. 730 (1987)).

As relevant in this case, France has enacted such a statute (the “French Blocking Statute”). (Dkt. No. 63, ¶¶ 5–10; Dkt. No. 63 Ex. B.) See Société Nationale, 482 U.S. at 526 & n.6, 544 n.29. The French Blocking Statute provides in part the following:

Loi 68–678 du 26 juillet 1968 relative à la communication de documents et renseignements d'order économique, commercial, industriel, financier out technique à des personnes physiques ou morales étrangères [Act no. 68–678 dated 26 of July 1968, related to the disclosure to foreign natural or juridical persons, of economic, commercial, industrial, financial or technical documents and information], art. 1st bis (French and English translation attached as Exhibit B to Mettetal Declaration, Dkt. No. 63–1), translation of prior version provided in Société Nationale, 482 U.S. at 526 n.6. Violation of this law may result in a sentence of not less than six months in prison, a fine of 18,000 euros, or both. See id. art. 3.

The mere existence of a blocking statute does not preclude an American court from ordering discovery from a foreign litigant. Indeed, the Supreme Court has stated that “[i]t is well settled that such statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.” Société Nationale, 482 U.S. at 544 n.29 (citing Société Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204–206, 78 S. Ct. 1087, 1091–1092, 2 L.Ed. 2d 1255 (1958)); see also Richmark, 959 F.2d at 1474 (“Cases since Société Internationale, however, have emphasized that a foreign-law prohibition will not always excuse compliance with a discovery order.”).

*6 There are a total of 56 RFPs at issue, falling into 13 different categories. For 12 of these categories, AXA has argued that the French Blocking Statute requires Plaintiffs to proceed by the Hague Convention to pursue the discovery. AXA also objects to the RFPs for various other reasons. This discussion will first address whether the requested discovery is appropriate under the FRCP (setting aside foreign-law issues), considering the RFPs at issue as they are grouped in the Joint Stipulation. The Court will address the issues surrounding the French Blocking Statute in the following section.

Generally speaking, Plaintiffs contend that each of the RFPs at issue seek relevant information and that the RFPs are sufficiently narrow as written to be proper under the FRCP. AXA largely objects to Plaintiffs' RFPs as seeking irrelevant information and as being duplicative, overly broad, unduly burdensome, and not proportional to the needs of the case.

• RFP No. 49: All COMMUNICATIONS with the JOINT STACK INSURERS concerning the CHATSWORTH METROLINK ACCIDENT.

The Court finds that these RFPs seek relevant information and they are not overbroad. The Court agrees with Plaintiffs that these RFPs are sufficiently narrow, as they seek communications with specific parties on specific topics.[4]

Accordingly, the Court GRANTS Plaintiffs' Motion with respect to these RFPs. AXA shall produce any responsive, nonprivileged documents falling within the scope of these RFPs that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42.[5]AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege.

• RFP No. 34: All DOCUMENTS concerning YOUR decision to file the FIRST COVERAGE ACTION.

For the reasons discussed on the record, the Court DENIES Plaintiffs' Motion with respect to these RFPs.

• RFP No. 54: All COMMUNICATIONS with AIG and the other members of the MASTER PROGRAM concerning the PASSENGER ACTIONS.

The Court finds that these RFPs seek relevant information and they are not overbroad. As with the first category of RFPs (discussed above), the Court finds that these RFPs are sufficiently narrow because they seek communications with specific parties on specific topics.

Accordingly, the Court GRANTS Plaintiffs' Motion with respect to these RFPs. AXA shall produce any responsive, nonprivileged documents falling within the scope of these RFPs that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42. AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege.

• RFP No. 79: All COMMUNICATIONS with Metrolink concerning the CHATSWORTH METROLINK ACCIDENT.

The Court finds that these RFPs seek relevant information and they are not overbroad. As with the first and immediately preceding categories of RFPs, the Court finds that these RFPs are sufficiently narrow because they seek communications with specific parties on specific topics.

Accordingly, the Court GRANTS Plaintiffs' Motion with respect to these RFPs. AXA shall produce any responsive, nonprivileged documents falling within the scope of these RFPs that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42. AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege.

• RFP No. 41: All DOCUMENTS, including but not limited to all COMMUNICATIONS, concerning the CONTRIBUTION ACTION.

The Court finds that RFP No. 41 is overbroad and is not proportional to the needs of the case. However, the Court finds that the remaining RFPs in this category seek relevant information and are sufficiently narrow. Among other things, responsive documents may reflect AXA's positions in the Contribution Action, which are relevant to the instant action,

Accordingly, the Court DENIES Plaintiffs' Motion with respect to RFP No. 41 and GRANTS Plaintiffs' Motion with respect to the remaining RFPs in this category. AXA shall produce any responsive, nonprivileged documents falling within the scope of RFP Nos. 47, 53, 58, 63, 68, 73, 78, 83, 116, and 124 that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42. AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege. AXA need not provide any further response to RFP No. 41. If Plaintiffs believe that discoverable matter falls within the scope of RFP No. 41 but not one of the more specific RFPs, then Plaintiffs may serve an appropriately narrowed RFP.

• RFP No. 86: All DOCUMENTS, including all COMMUNICATIONS, concerning all in-person meetings that were attended on the one hand by YOU or any of YOUR employees, attorneys, or agents, including but not limited to Gerard Honig, and on the other hand, CONNEX, TRANSDEV, and/or the JOINT STACK INSURERS in connection with the PASSENGER ACTIONS.

The Court finds that these RFPs seek relevant information and they are not overbroad. AXA's arguments that responsive documents may be privileged are not persuasive and are not adequately supported at this time.

*9 Accordingly, the Court GRANTS Plaintiffs' Motion with respect to these RFPs. AXA shall produce any responsive, nonprivileged documents falling within the scope of these RFPs that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42. AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege.

• RFP No. 91: All DOCUMENTS concerning YOUR setting of reserves for the PASSENGER ACTIONS.

The Court finds that these RFPs seek relevant information and they are not overbroad. In particular, the Court finds that information regarding AXA's setting of reserves is relevant in light of Plaintiffs' allegations of bad faith. Additionally, because the Court finds that all of the various lawsuits underlying the instant action are intertwined, AXA's loss reserves for each of them are relevant.

Accordingly, the Court GRANTS Plaintiffs' Motion with respect to these RFPs. AXA shall produce any responsive, nonprivileged documents falling within the scope of these RFPs that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42. AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege.

• RFP No. 107: ALL communications with any of AXA's reinsurers concerning the CHATSWORTH METROLINK ACCIDENT.

The Court finds that these RFPs seek relevant information and they are not overbroad. As with the immediately preceding category of RFPs, the Court finds that because all of the various lawsuits underlying the instant action are intertwined, responsive documents relating to each of them are relevant to this action.

Accordingly, the Court GRANTS Plaintiffs' Motion with respect to these RFPs. AXA shall produce any responsive, nonprivileged documents falling within the scope of these RFPs that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42. AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege.

• RFP No. 97: All COMMUNICATIONS with any government authority, including for example any state regulator, concerning the CHATSWORTH METROLINK ACCIDENT.

The Court finds that these RFPs seek information with only minimal relevance to this action, and thus they are not proportional to the needs of the case.

Accordingly, the Court DENIES Plaintiffs' Motion with respect to these RFPs.

• RFP No. 96: All complaints filed in the United States by any policyholder against AXA alleging a tortious breach of AXA's insurance obligations to the policyholder.

This RFP would include some information that is relevant, but it is overly broad. As the Court indicated at the hearing, an appropriately tailored RFP would be limited to claims of bad faith against AXA in situations similar to that alleged by Plaintiffs. Plaintiffs' offer in the Joint Stipulation to limit this RFP to cover only 2008 to 2016 is reasonable and is appropriate, but it does not sufficiently narrow the RFP.

Accordingly, the Court DENIES Plaintiffs' Motion with respect to this RFP. The parties shall meet and confer regarding a narrowed scope for this RFP. The parties may schedule a telephonic conference with the Court if they are unable to reach an agreement as to this RFP.

• RFP No. 88: All COMMUNICATIONS with Union Pacific Railroad Company or its representatives or agents concerning the CHATSWORTH METROLINK ACCIDENT.

The Court finds that these RFPs seek information with only minimal relevance to this action, and thus they are not proportional to the needs of the case.

Accordingly, the Court DENIES Plaintiffs' Motion with respect to these RFPs.

• RFP No. 120: All COMMUNICATIONS with, and all DOCUMENTS concerning all COMMUNICATIONS with, Veolia Environnement SA's broker, Aon, concerning the applicability of the AXA POLICY to PLAINTIFFS' potential liability coverage for the PASSENGER ACTIONS.

The Court finds that these RFPs seek relevant information and they are not overbroad. The Court is not persuaded that Plaintiffs should seek this discovery from third parties by subpoena rather than from AXA.

Accordingly, the Court GRANTS Plaintiffs' Motion with respect to these RFPs. AXA shall produce any responsive, nonprivileged documents falling within the scope of these RFPs that AXA is not already producing pursuant to the parties' agreement with respect to RFP Nos. 38, 39, 40, and 42. AXA shall produce a privilege log to indicate any responsive documents that it is withholding on the basis of attorney-client privilege, work product protection, or some other privilege.

• RFP No. 134: All DOCUMENTS responsive to Requests for Production 38 through 132 that are currently in the possession of AXA's attorneys in this action, McKay, de Lorimier & Acain.

In light of the Court's ruling, detailed below, that Plaintiffs are entitled to pursue the discovery at issue in this Motion under the FRCP, Plaintiffs' Motion is DENIED as moot with respect to RFP No. 134.

Because Plaintiffs are entitled to much of the discovery that they seek in the instant Motion, the Court must decide whether Plaintiffs may obtain that discovery under the FRCP or whether they must resort to the procedures of the Hague Convention due to the French Blocking Statute.

As a preliminary matter, as noted above, it is clear that the existence of the Hague Convention does not preclude Plaintiffs from seeking, or this Court from ordering, discovery pursuant to the FRCP, as the Hague Convention offers only an optional procedure. See Société Nationale, 482 U.S. at 536–42. Indeed, “the power of the district court to conduct discovery in the most appropriate manner is broad,” and in fact the Supreme Court in Société Nationale “emphasized that the district court has complete discretion to determine the most appropriate manner of producing evidence in the case before it.” Baraz v. United States, 181 F.R.D. 449, 452–53 (C.D. Cal. 1998)(citing Société Nationale, 482 U.S. at 544).

AXA has submitted a declaration from French counsel stating that the French Blocking Statute “prohibits French nationals and companies from complying with discovery requests served in foreign litigation unless the discovery is conducted under [the Hague Convention].” (Dkt. No. 63, ¶ 6.) The declaration further states that the RFPs at issue in the instant Motion seek documents and information that “cannot be disclosed under the French Blocking Statute, otherwise, AXA may be subject to criminal prosecution or monetary sanctions.” (Id., ¶ 13.) The declaration attaches a copy of the French Blocking Statute. (Dkt. No. 63–1 Ex. B.) The declaration also attaches a letter from the French Ministry of Justice indicating that production in response to the RFPs at issue could subject AXA to penalties under the French Blocking Statute if the parties do not proceed under the Hague Convention. (Id. Ex. A.) In light of these submissions, the Court may assume that the French Blocking Statute does in fact apply to the RFPs at issue. See Richmark, 959 F.2d at 1474 & n.7 (accepting a company's contention that a blocking statute applied and stating that the court “[has] neither the power nor the expertise to determine for ourselves what [the other country's] law is”); In re Air Crash at Taipei, Taiwan on Oct. 31, 2000, 211 F.R.D. 374, 377 (C.D. Cal. 2002) (quoting Richmark).

*12 However, even if the French Blocking Statute applies, it does not necessarily require Plaintiffs to pursue all discovery under the Hague Convention. Indeed, Société Nationale involved a defendant's argument that the French Blocking Statute precluded certain discovery, and the Supreme Court held that the plaintiff was not required to proceed under the Hague Convention. See 482 U.S. at 525–26 & n.6, 536–40. The Supreme Court specifically stated that statutes such as the French Blocking Statute do not alter an American court's power to compel production of evidence even if the production would violate foreign law. See id. at 544 n.29.

Whether Plaintiffs may seek discovery under the FRCP or whether they must proceed in accordance with the Hague Convention in light of the French Blocking Statute is determined by an analysis of the various factors identified by the Supreme Court in Société Nationale and the Ninth Circuit in Richmark.

For the most part, the parties' arguments regarding the various factors to be considered are the same for all groups of RFPs; where the analysis turns on some aspect particular to the RFPs, the parties' arguments overlap with their arguments regarding the permissibility of the RFPs under the FRCP. The parties' arguments will be summarized below with respect to each factor, and distinctions will be made between different RFPs or groups of RFPs when necessary.

The following analysis applies only to RFPs otherwise deemed discoverable above. Thus, any limitations discussed above apply, and RFPs for which further response is not required (RFP Nos. 34–37, 41, 88–90, 96 as currently written, and 97–102) are excluded from this inquiry.

“Where the outcome of litigation does not stand or fall on the present discovery order, or where the evidence sought is cumulative of existing evidence, courts have generally been unwilling to override foreign secrecy laws.” Richmark, 959 F.2d at 1475 (internal quotation marks omitted) (quoting In re Westinghouse Elec. Corp. Uranium Contracts Litig., 563 F.2d 992, 999 (10th Cir. 1977)). On the other hand, “[w]here the evidence is directly relevant, ... this factor ... weigh[s] in favor of disclosure.” Id. (citing Vetco, 691 F.2d at 1290).

Plaintiffs' arguments regarding the importance of each group of RFPs generally overlap with their arguments as to why the discovery is relevant and why the RFPs are appropriate under the FRCP. (See J.S. at 15, 57, 80, 108–09, 127, 151, 172, 211, 250.) Likewise, AXA makes substantially the same arguments here as under the FRCP. (See id. at 26, 68, 91, 118, 138, 160, 183, 219, 261.)

As discussed above, the information sought by the RFPs at issue is generally relevant and otherwise discoverable under the FRCP. Much of the discovery sought should directly show or disprove some of Plaintiffs' primary allegations, such as what AXA knew and what it represented to others. AXA apparently has already agreed to produce various categories of documents in response to other RFPs (e.g., J.S. at 17), and that production does not appear insubstantial; however, those responses are not cumulative of what is sought by the RFPs at issue here. These RFPs may in some respects go more directly to the issues in this case, at least as framed by Plaintiffs' allegations in their Complaint.

Accordingly, this factor weighs in favor of permitting discovery directly under the FRCP.

This factor involves consideration of “how burdensome it will be to respond” to the discovery request. See Richmark, 959 F.2d at 1475. “Generalized searches for information, the disclosure of which is prohibited under foreign law, are discouraged.” Id. However, where a request is reasonable in scope and tailored to the discovery sought (even if it seeks a great deal of information), an objection based only on the request's illegality will not favor nondisclosure. See id.

*13 Without much elaboration, Plaintiffs argue that each of their RFPs is sufficiently specific, targeting particular categories of documents, occasionally stating that particular groups of RFPs should not capture a large number of documents. (See J.S. at 15, 57, 80, 109, 127, 151, 172–73, 211, 250.) For the RFPs in all groups except one, AXA argues that the RFPs are overly broad, requiring generalized searches for information, and it emphasizes that Plaintiffs have served over 100 RFPs in this action. (Seeid. at 26–27, 68–69, 91–92, 118–119, 138–39, 160–61, 183–84, 219–20, 262.)

This factor appears to have been addressed in the discussion of the RFPs under the FRCP above. The RFPs, subject to any modifications or limitations discussed above, are sufficiently specific that response should be required under the FRCP in the absence of any foreign-law issues, and the fact that these RFPs may include within their scope a large number of documents does not make them less so. The fact that Plaintiffs have served a large number of RFPs overall in this case does not necessarily mean that they are not entitled to this discovery. While that fact may be relevant to other aspects of the comity analysis, see Valois of Am., Inc. v. Risdon Corp., 183 F.R.D. 344, 349 (D. Conn. 1997), the focus of this factor is not on the number of discovery requests but on their specificity. Here, the RFPs are sufficiently specific.

Accordingly, this factor weighs in favor of permitting discovery directly under the FRCP.

“The fact that all the information to be disclosed (and the people who will be deposed or who will produce the documents) are located in a foreign country weighs against disclosure, since those people and documents are subject to the law of that country in the ordinary course of business.” Richmark, 959 F.2d at 1475.

Plaintiffs concede (see J.S. at 15, 57, 81, 109, 127, 151–52, 173, 211, 251), and AXA confirms (see id. at 27, 69, 92, 119, 139, 161, 184, 220, 263), that responsive documents likely originated in France, where AXA is headquartered.

Accordingly, this factor weighs in favor of requiring the discovery to be taken pursuant to the Hague Convention.

“If the information sought can easily be obtained elsewhere, there is little or no reason to require a party to violate foreign law.” Richmark, 959 F.2d at 1475. The Ninth Circuit requires that “the alternative means must be ‘substantially equivalent’ to the requested discovery.” Id. (quoting Vetco, 691 F.2d at 1290). One court has described this factor as concerning whether “alternative domestic means” are available to obtain the discovery. See St. Jude Med. S.C., Inc. v. Janssen–Counotte, 104 F. Supp. 3d 1150, 1167 (D. Or. 2015) (emphasis added). However, other courts have considered whether the Hague Convention qualifies as an alternative to compelling discovery under the FRCP. See, e.g., CE Int'l Resources Holdings, LLC v. S.A. Minerals Ltd. P'ship, No. 12–CV–08087 (CM)(SN), 2013 WL 2661037, at *11–13 (S.D.N.Y. June 12, 2013) (stating that “[w]hether or not the Hague Evidence Convention is indeed a viable alternative is a fact intensive inquiry,” and finding that it was a viable alternative in that case). But cf. In re Cathode Ray Tube (CRT) Antitrust Litig., No. C–13–1173–SC, 2014 WL 5462496, at *5–6 (N.D. Cal. Oct. 23, 2014) (stating that while the requested “documents are nominally available through Hague Convention procedures, at this stage they may be unavailable as a practical matter”). Regardless, subpoenaing information from sources in the United States may be one acceptable alternative, but it will not suffice if those sources do not have the information that is requested. See Richmark, 959 F.2d at 1476.

*14 Plaintiffs argue that the information is theoretically available through the Hague Convention but that AXA has not agreed to produce responsive documents. (See J.S. at 15, 57, 81, 109, 127, 151–52, 173, 211, 251.) In their supplemental briefing, Plaintiffs contend that the Hague Convention “is a particularly inadequate option because it will not provide Plaintiffs with access to all the information they are entitled to review under the Federal Rules.” (Dkt. No. 78 at 3–4.) AXA counters that it would agree to produce any documents that it is ordered to produce in accordance with the expedited procedures of Article 17 of the Hague Convention, and argues that for many of the RFPs at issue, Plaintiffs either already have issued or could issue subpoenas to third parties to obtain responsive documents and communications. (See id. at 27–28, 69–70, 93, 119–20, 139, 161, 184, 220, 263.) AXA attaches to one of its declarations several subpoenas served by Plaintiffs on AIG and two other insurance companies. (Dkt. No. 62–8.) In its supplemental briefing, AXA again points to the subpoenas, stating that the target companies are not subject to the French Blocking Statute or the Hague Convention and that therefore the Court need not compel AXA to produce documents covered by those subpoenas. (Dkt. No. 79 at 2–3.)

Plaintiffs' concern that discovery should proceed under the FRCP because of the perceived unavailability of the Hague Convention procedures is obviated by AXA's agreement that it would follow the Hague Convention procedures if ordered to respond to the RFPs at issue. On the one hand, since Plaintiffs oppose resorting to the Hague Convention procedures, it is possible that this factor should consider whether Plaintiffs can obtain the discovery they seek without resort to the Hague Convention. See St. Jude, 104 F. Supp. 3d at 1167. On the other hand, AXA's indication that it would comply with a court order and proceed under the Hague Convention might make that a viable alternative for purposes of this factor, and would make it unnecessary to expose AXA to any potential liability. See Richmark, 959 F.2d at 1475. Some courts have expressed skepticism about the effectiveness of resort to the Hague Convention. See, e.g., Société Nationale, 482 U.S. at 542 (noting that in some cases, the Hague Convention's procedures may be unduly time consuming or expensive); In re Cathode Ray Tube, 2014 WL 5462496, at *5–6 (finding the Hague Convention procedures unavailable as a practical matter in the case at hand); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010) (“Although there is no dispute that the Hague Convention affords an alternative means for securing the information, the outcome of a request pursuant to the Convention is by no means certain ....”); Valois, 183 F.R.D. at 349 (“[I]t is generally recognized that procedures under the Hague Convention are far more cumbersome than under the Federal Rules of Civil Procedures.”). Here, the parties have already agreed to an expedited procedure under the Hague Convention for other discovery requests, and presumably that approach would alleviate at least some issues with respect to obtaining the discovery at issue. In fact, that Plaintiffs have agreed to those procedures for other discovery requests could suggest that the expedited procedure is sufficient here. Of course, Plaintiffs note in their supplemental briefing that they explicitly agreed to proceed under the Hague Convention for some discovery requests without prejudice to their pursuing other discovery through the FRCP. (Dkt. No. 78 at 2–3.)

An alternative means must be substantially equivalent to the requested discovery. See Richmark, 959 F.2d at 1475. As AXA's papers indicate, the standard for discovery in France under the Hague Convention is narrower than that under the FRCP. (E.g., J.S. at 27 (“[Plaintiffs'] requests do not comply with France's declaration as to Article 23 of the Hague Convention. These requests do not have a direct and precise connection with Plaintiffs' claims, and is not identified with a reasonable degree of specificity.” (citations omitted); Dkt. No. 63, ¶¶ 15–16 (Mettetal Declaration).) While the RFPs at issue are sufficiently pertinent to the action to be proper under the FRCP, the Court is not in a position to evaluate French law on the matter. Taking AXA's assertions as true, it appears that forcing Plaintiffs to pursue this discovery under the Hague Convention would require them to forego some discovery to which they otherwise would be entitled. This weighs against requiring Plaintiffs to proceed under the Hague Convention. SeeSociété Nationale, 482 U.S. at 542 n.26 (“In many situations the Letter of Request procedure authorized by the [Hague] Convention would be ... less certain to produce needed evidence than direct use of the Federal Rules.”); Coloplast A/S v. Generic Med. Devices, Inc., No. C10–227BHS, 2011 WL 6330064, at *4 (W.D. Wash. Dec. 19, 2011) (“With regard to the availability of alternative means of securing the information, the procedures of the Hague Convention are voluntary and production in France may subject an individual to criminal proceeding. Thus, the Court finds that although alternative means are available, it is highly unlikely that Generic would receive a response similar to what it is entitled to under Rule 34. The Court finds that this factor weighs in favor of production.”). The fact that Plaintiffs agreed to cede some discovery within the scope of other RFPs does not necessarily mean that it must do so for the RFPs at issue here. This suggests that resort to the Hague Convention is not a sufficient alternative means to obtain the discovery that Plaintiffs seek.

*15 Documents responsive to roughly half of the RFPs at issue may be available by subpoenaing third parties, who presumably would not face the same issues of foreign law. Specifically, documents relating to AXA's communications with the Joint Stack Insurers (RFP Nos. 49–51); AXA's communications with AIG and other insurers (RFP Nos. 54–57); AXA's communications with other parties in the Passenger and Interpleader Actions (RFP Nos. 79–85); and some documents relating to the Contribution Action, including AXA's communications with the Joint Stack Insurers, AIG and other insurers, and Metrolink (RFP Nos. 53, 58, 83). Plaintiffs have not indicated that subpoenas to these various third parties were (or would be) ineffective or that those third parties do not have the requested information. See Richmark, 959 F.2d at 1476. Moreover, subpoenas would not be necessary for the RFPs seeking AXA's communications with Connex and Transdev regarding the Contribution Action (RFP Nos. 63, 68, 73). While AXA's communications with Plaintiffs may be a valid subject of an RFP under the FRCP, the fact that Plaintiffs should already have most if not all responsive documents weighs against compelling this discovery under the FRCP in the comity analysis.

It is less clear, or even doubtful, that Plaintiffs could obtain by subpoena other documents relating to the Contribution Action, such as AXA's claims file, AXA's analysis of potential liabilities arising out of the Contribution action, and AXA's communications with Veolia and Aon (who are not U.S. companies) (RFP Nos. 47, 78, 116, 124); AXA's documents regarding in-person meetings with Connex (RFP Nos. 86, 87); documents relating to AXA's loss reserves (RFP Nos. 91–95); AXA's communications with its reinsurers (who may or may not be foreign companies) (RFP Nos. 107–11); prior bad faith claims against AXA (RFP No. 96); or AXA's communications with Aon regarding coverage of Plaintiffs (RFP Nos. 120–23). Indeed, AXA does not contend that Plaintiffs could obtain by subpoena documents regarding AXA's in-person meetings with Connex; AXA's setting of reserves; or prior bad faith claims against AXA. (See J.S. at 139, 161, 220.)

In sum, the Hague Convention likely is not an acceptable alternative to proceeding under the FRCP, and only some, but not all, discovery could be obtained by subpoenaing U.S. companies. Accordingly, this factor weighs in favor of permitting discovery directly under the FRCP, but not strongly.

The Ninth Circuit has explained that

Richmark, 959 F.2d at 1476 (footnote, citation, alteration, and emphasis omitted).

“Generally, every foreign state has strong interests in enforcing its secrecy laws.” In re Air Crash at Taipei, 211 F.R.D. at 378–79. However, the other country's interests “must be weighed against the United States' interests in vindicating the rights of American plaintiffs and in enforcing the judgments of its courts. The former interest has been described as ‘substantial,’ and the latter as ‘vital.”’ Richmark, 959 F.2d at 1476 (citations omitted) (quoting In re Ins. Antitrust Litig., 938 F.2d 919, 933 (9th Cir. 1991); Reinsurance Co. of Am., Inc. v. Administratia Asigurarilor de Stat, 902 F.2d 1275, 1280 (9th Cir. 1990)). However, “these interests are not so strong that they would compel disclosure in all cases.” Id.

Plaintiffs argue that the United States has a strong interest in protecting domestic insureds from insurers' bad faith conduct resulting in losses in the United States, citing the District Court's order denying AXA's motion to dismiss for forum non conveniens, but does not address France's interests. (See J.S. at 16, 57–58, 81, 109, 127, 152, 173, 196, 211, 251.) AXA argues that France has been emphatic in disfavoring use of the FRCP, as demonstrated by its enactment of the French Blocking Statute. (See id. at 28, 70, 93, 120, 139, 161, 185, 220, 263–64.)

*16 “To be sure, France has an interest in controlling foreign access to information within its borders, and in protecting its citizens from foreign discovery practices it views as antithetical to the French legal culture.” In re Cathode Ray Tube, 2014 WL 5462496, at *6. France's interest is reflected by the French Blocking Statute. See In re Perrier Bottled Water Litig., 138 F.R.D. 348, 355 (D. Conn. 1991) (stating that France has been “among the most emphatic” of civil-law countries expressing their disfavor with litigants use of the FRCP within its borders). France's interest in this respect may be viewed as strong. See In re Air Crash at Taipei, 211 F.R.D. at 378–79.

Additionally, France has expressed an interest in the disclosure sought by the RFPs at issue. See Richmark, 959 F.2d at 1476. Specifically, AXA has provided a letter from the French Ministry of Justice indicating that disclosure other than pursuant to the Hague Convention would violate the French Blocking Statute. (Dkt. No. 63–1 Ex. A.) However, as with the defendant in In re Air Crash at Taipei, the letter does not mention any of the specific documents requests at issue. See 211 F.R.D. at 379. And, like the defendant in that case, AXA “does not explain how documents produced under an appropriate protective order would impinge on [France's] interests in secrecy.” See id. Thus, the letter's impact on this analysis is somewhat diminished.

France's interests, though strong, do not always outweigh those of the United States. See, e.g., In re Cathode Ray Tube, 2014 WL 5462496, at *6. As noted above, the United States has a strong interest in vindicating the rights of American plaintiffs. See Richmark, 959 F.2d at 1476. And as Plaintiffs noted, the District Court previously found that there were strong local interests in this case, sufficient to defeat AXA's motion to dismiss for forum non conveniens. (Dkt. No. 47 at 4–5.) Those same interests suggest that the United States has a strong interest in allowing Plaintiffs to obtain the discovery that they seek so that this dispute is fully resolved on the merits.

Accordingly, this factor is either neutral or weighs slightly in favor of permitting discovery directly under the FRCP.

“The effect that a discovery order is likely to have on the foreign company is another factor to be considered. If [the company] is likely to face criminal prosecution in the [foreign country] for complying with the United States court order, that fact constitutes a ‘weighty excuse’ for nonproduction.” Richmark, 959 F.2d at 1477 (quoting Société Internationale, 357 U.S. at 211). An instruction from the foreign country to withhold the requested information would weigh in favor of nondisclosure, but “if the hardship is self-imposed, or if [the company] could have avoided it, the fact that it finds itself in an undesirable position will not work against disclosure of the requested information.” Id.

Plaintiffs argue that the French Blocking Statute does not exempt AXA from providing discovery under the FRCP and that this factor weighs only minimally in AXA's favor. (See J.S. at 16, 58, 81, 109, 127–28, 152, 173, 211, 251 (citing In re Cathode Ray Tube, 2014 WL 5462496, at *7).) AXA argues that there is no hardship here because that parties already are proceeding with expedited procedures under the Hague Convention, suggesting that the Court have the parties do likewise with respect to the RFPs at issue here. (See id. at 28–29, 70, 94, 120, 139–40, 161–62, 185, 220, 264.) Elsewhere in its briefing, AXA refers to the penalties for violating the French Blocking Statute and states that the French Ministry of Justice has confirmed that the French Blocking Statute applies to Plaintiffs' RFPs. (See id. at 22, 42–43, 64, 87–88, 114, 133–34, 156, 179, 200, 214–15, 235–36, 257–58.) AXA submits as an attachment to one of its declarations copies in English and French of a French Supreme Court case, In re Advocat Christopher X, addressing the French Blocking Statute. (Dkt. No. 63–1 Ex. D.) The declaration explains that in Christopher X, “a French attorney was criminally prosecuted and fined 10,000 Euros under the French Blocking Statute for failing to conduct discovery pursuant to the Hague Convention.” (Dkt. No. 63, ¶ 12.)

*17 It does not appear that AXA meant to imply there would be no hardship if it were ordered to respond to the RFPs at issue as under the FRCP, given AXA's arguments elsewhere in its briefing. AXA instead appears to argue that the hardship it would experience is unnecessary given the parties' ability to continue to proceed under the Hague Convention as with other discovery requests. (See, e.g., J.S. at 22, 64, 87–88, 114, 133–34, 156, 179, 214–15, 257–58.)

As discussed above, the Court may assume that the French Blocking Statute does in fact apply to the RFPs at issue in light of the multiple authorities presented by AXA. The pertinent question, however, is whether AXA is likely to face criminal prosecution for violating the statute should the Court order it to respond to the RFPs at issue in accordance with the FRCP. See Richmark, 959 F.2d at 1477. That is, even if AXA would violate the statute by complying with the RFPs, the Court must consider the likelihood that it would actually face any penalties.

AXA's letter from the French Ministry of Justice (Dkt. No. 63–1 Ex. A) likely is not sufficient on its own to demonstrate a threat of criminal prosecution. In In re Air Crash at Taipei, the government letter offered by a defendant resisting discovery was “not persuasive proof that defendant or its officers or managing agents will be criminally prosecuted for complying with an order of th[e] Court” because it “merely outline[d] the provisions of [the foreign blocking statute] and request[ed] defendant's compliance.” See 211 F.R.D. at 379. The letter presented by AXA is to somewhat similar effect.

AXA's precise arguments, regarding both the letter and Christopher X, were considered and rejected by the court in In re Cathode Ray Tube. That court explained:

*18 2014 WL 5462496, at *6–7.

Accordingly, as in In re Cathode Ray Tube, this factor weighs only minimally in favor of requiring the discovery to be taken pursuant to the Hague Convention.

“If a discovery order is likely to be unenforceable, and therefore to have no practical effect, that factor counsels against requiring compliance with the order.” Richmark, 959 F.2d at 1478. If the person or entity resisting discovery is a party to the action, a court order likely will be enforceable. Société Nationale, 482 U.S. at 539–40, 544 n.29; see In re Air Crash at Taipei, 211 F.R.D. at 379 (“Here, the defendant has presented no evidence that this Court's discovery order will be unenforceable, and since defendant is a party before this Court the opposite is true.”); see also Fenerjian v. Nong Shim Co., No. 13–cv–04115–WHO (DMR), 2016 WL 245263, at *6 (N.D. Cal. Jan. 21, 2016) (“[The resisting individual] is subject to this court's jurisdiction and does not assert that it will refuse to comply with a court order compelling discovery.”).

Plaintiffs argue that because AXA is a party to this action, it can be expected to comply with a discovery order from this Court. (See J.S. at 16, 58, 81, 109, 128, 152, 173, 211, 251 (citing Vetco, 691 F.2d at 1290; In re Cathode Ray Tube, 2014 WL 5462496, at *4).) AXA argues that there is no basis to believe that the Hague Convention procedures would be ineffective and that if they ultimately are, the Court retains authority to order discovery under the FRCP. (See id. at 29, 71, 94, 121, 140, 162, 185–86, 221, 264 (citing In re Perrier, 138 F.R.D. at 355–56).)

As Plaintiffs contend and AXA appears to concede, this Court has the authority to order AXA to respond to the RFPs at issue pursuant to the FRCP. See Société Nationale, 482 U.S. at 539–40, 544 n.29; Fenerjian, 2016 WL 245263, at *6; In re Air Crash at Taipei, 211 F.R.D. at 379. Whether this discovery also would be available under the Hague Convention procedures is addressed under a different factor.

Accordingly, this factor weighs in favor of permitting discovery directly under the FRCP.

The Supreme Court in Société Nationale directed courts to “scrutin[ize] in each case ... the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective.” 482 U.S. at 544. Société Nationale is not clear regarding the extent to which these are separate factors to consider rather than general guidelines to follow. Indeed, these considerations are largely addressed by the various factors discussed above. Moreover, the Ninth Circuit in Richmark did not separately address them, instead only considering the factors quoted in Société Nationale from the Restatement and the additional factors identified by the Ninth Circuit in that case. See 959 F.2d at 1474–75. Nonetheless, the Société Nationaleand Richmark factors are not exhaustive, see id. at 1475, and so the Court may consider whether any other information regarding this case impacts the comity analysis.

*19 The particular facts of this case are complicated, and they involve many separate entities. There apparently is a large amount of discovery being undertaken. AXA cites Valois to argue that the large number of RFPs propounded by Plaintiffs on AXA weighs in favor of proceeding under the Hague Convention. In Valois, a court in the District of Connecticut held that the propounding party's 96 discovery requests were too burdensome and intrusive to be permitted. See 183 F.R.D. at 349. Although the instant Motion involves only 56 RFPs, Société Nationale does provide that a court “should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position.” 482 U.S. at 545. It therefore is appropriate to consider whether the overall impact of discovery sought from AXA might be unduly burdensome.

The Supreme Court in Société Nationale expressed concern that discovery from foreign parties or entities might increase the risk of discovery abuses or improper uses of discovery requests. See 482 U.S. at 545. By way of example, the Supreme Court suggested that “the additional cost of transportation of documents or witnesses to or from foreign locations may increase the danger that discovery may be sought for the improper purpose of motivating settlement, rather than finding relevant and probative evidence.” Id. Here, however, it does not appear that the RFPs at issue are being pursued for an improper purpose. Rather, they seek pertinent information and are not unduly broad. AXA does not allege any improper motive on the part of Plaintiffs, and one is not apparent from the briefing on the Motion. While the overall amount of documents ultimately produced may be large, that appears to be only a reflection of the complicated nature of the case. Thus, this consideration does not weigh in favor of proceeding under the Hague Convention.

In sum, only two factors weigh in favor of proceeding under the Hague Convention (whether the information originated in the United States, and the extent and nature of the hardship on AXA), with only one of those factors weighing more than minimally. By contrast, at least four factors weigh in favor of permitting discovery directly under the FRCP, and the most important factor—the respective interests of the United States and France—either is neutral or weighs in favor of permitting discovery directly under the FRCP. Accordingly, the Court concludes that Plaintiffs need not resort to the Hague Convention to obtain the discovery being granted by this order; AXA shall respond pursuant to the FRCP.

Plaintiffs are entitled to most but not all of the discovery that they seek in the instant Motion. In particular, AXA is ordered, subject to any limitations or narrowing discussed above, to produce documents responsive to (or else provide a privilege log detailing documents withheld regarding) RFP Nos. 47, 49–58, 63, 68, 73, 78–87, 91–95, 107–11, 116, and 120–24. AXA shall respond to these RFPs as under the FRCP, not under any procedure of the Hague Convention. AXA need not provide any further response to RFP Nos. 34–37, 41, 88–90, 97–102, or 134. The parties shall meet and confer regarding a narrowed scope for RFP No. 96.

In its supplemental briefing, AXA requested that it be given time sufficient time to review documents and comply with the Court's order if the Court determines that AXA must further respond to the RFPs at issue. (Dkt. No. 79 at 4.) AXA estimates, and provides a declaration of counsel affirming, that such review could take up to eight weeks. (Id.; Dkt. No. 79–1, ¶ 10.) Counsel for AXA reiterated this request at the hearing, and further explained that it could begin a rolling document production in two weeks. Counsel for Plaintiffs explained that depositions of AXA's corporate representatives are scheduled to take place in March and that responsive documents would be needed to prepare for those depositions. Counsel for Plaintiffs explained that if the entire production could not be expedited, then it would ask that AXA prioritize its responses to the RFPs regarding AXA's communications with the Joint Stack Insurers (RFP Nos. 49–52), AXA's communications with AIG and the other Master Program insurers (RFP Nos. 54–57), and AXA's loss reserves (RFP Nos. 91–95).

*20 In light of the parties' respective needs, AXA is ordered to begin a rolling production of documents pursuant to this order on or before March 9, 2017. This deadline is not intended to preclude AXA from beginning its document production sooner, and AXA is encouraged to do so if it is able. AXA is directed to prioritize its production of documents responsive to the RFPs regarding AXA's communications with the Joint Stack Insurers, AXA's communications with AIG and the other Master Program insurers, and AXA's loss reserves.

As explained at the hearing, sanctions are not warranted for either party.

IT IS THEREFORE ORDERED that Plaintiffs' Motion is GRANTED IN PART AND DENIED IN PART.

IT IS SO ORDERED.

Transdev is the parent company of Connex and is (or at least was) owned in part by Veolia. (Dkt. No. 19.)

According to the Complaint, AXA and Veolia's other insurers contended that they were obligated to begin paying for losses stemming from the Chatsworth Accident only after the coverage from the Joint Stack Insurers and Plaintiffs' own U.S. insurance was exhausted. The Joint Stack Insurers contended that AXA and Veolia's other insurers were obligated to contribute regardless of whether the Joint Stack Insurers' coverage was exhausted. (Compl., ¶ 31.)

Under the Amtrak Reform and Accountability Act of 1997, there is a $200 million cap on all awards (in the aggregate) to all rail passengers against all defendants for claims arising from a single accident. (Compl., ¶ 33.) See 49 U.S.C. § 28103(a)(2).

At the hearing, the Court heard argument from both parties on each category of RFPs. The Court also provided tentative rulings as well as the reasons for those tentative rulings. The Court's tentative rulings are now made final, and so additional reasons for the Court's rulings are provided in the discussions on the record.

For many of the RFPs at issue, AXA argued that the RFPs are duplicative of other RFPs issued by Plaintiffs that the parties previously agreed to narrow. In particular, Plaintiffs' RFP Nos. 38, 39, 40, and 42 originally sought “ALL DOCUMENTS” concerning various topics pertinent to this litigation. (J.S. at 19; Dkt. No. 60–1 Ex. H at 6; Dkt. No. 62–2 at 6–10.) Had they not been narrowed, those RFPs likely would have subsumed many of the RFPs at issue in the instant Motion. However, the parties agreed that AXA would only produce certain documents or communications concerning AXA's contribution positions in response to RFP Nos. 38, 39, 40, and 42. at 19–20; Dkt. No. 60–1 Ex. D at 1–2; Dkt. No. 60–1 Ex. F at 5; Dkt. No. 62–3 at 2; Dkt. No. 62–4 at 2.)