*1 Hapag-Lloyd Aktiengesellschaft, which is a shipping company, applied ex parte under 28 U.S.C. § 1782 for discovery about what it characterizes as the worst shipping-container losses at sea, ever. The ship involved in the accident is docked in San Francisco Bay now and apparently rolled in November 2020, spilling hundreds of containers and damaging others. Hapag-Lloyd faces claims from the cargo owners and litigation in Germany.[1] The ship's owners — Chidori Ship Holding LLC and Jessica Ship Holding S.A. — opposed discovery on the grounds that they do not reside in this district, the requests are burdensome, Hapag-Lloyd's request for unfettered access to ESI and computers on the ship is inconsistent with the Federal Rules, and they are cooperating with discovery and are in the process of producing more.[2] Hapag-Lloyd responded that it seeks discovery only from the vessel in this district and its requests are not burdensome.[3]

The parties do not dispute Hapag-Lloyd's general entitlement to discovery under § 1782 and contest only whether it is entitled to it here and whether the discovery is too broad. Given the representations about the additional production, the dispute may be moot. A shorter way of resolving any remaining issues is for the parties to follow the court's discovery-dispute procedures by conferring about their disputes and submitting a joint letter if they cannot resolve them.

The ship is a Japanese-flagged containership that is owned by Chidori Ship Holding, a Japanese limited-liability company, and chartered to Jessica Ship Holding, a Panamanian limited-liability company.[4] Hapag-Lloyd had container slots on the ship, and the cargo owners sued it after the accident. It will defend the lawsuits against it in Germany, the mandatory forum designated on its bills of lading.[5] After the accident, the ship docked in Kobe, Japan, and its owners allegedly blocked Hapag-Lloyd from investigating the accident. Relevant lashing equipment allegedly was removed from the ship, and Hapag-Lloyd was not allowed to photograph or view the ship. It is concerned about delay or destruction of relevant discovery.[6]

In April, when the ship docked in Long Beach, Hapag-Lloyd — as part of a case in the Central District — worked out a discovery plan with the owners and others.[7] Then, on April 17, 2021, the ship left before the production was complete, and the Central District held that it no longer had jurisdiction over the ship and closed the case.[8]

The ship is anchored in San Francisco Bay and will be berthed in Oakland. Hapag-Lloyd wants discovery about the voyage at issue, permission to send technicians aboard “as needed” to extract information from the computer systems, and documents, including user manuals, vessel plans, the log book, reports about the accident, crew statements, communications not yet produced for the relevant time period, data files, and electronically stored information or documents about vessel motions, accelerations, and roll angles.[9]

*2 Hapag-Lloyd applies for discovery under 28 U.S.C. § 1782(a), which provides, in relevant part:

A litigant in a foreign action qualifies as an “interested person” under § 1782. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004). In order to apply for discovery under § 1782, a formal proceeding in the foreign jurisdiction need not be pending or even imminent. Id. at 258–59. Instead, all that is necessary is that a “dispositive ruling” by the foreign adjudicative body is “within reasonable contemplation.” Id. at 259 (discovery was proper under § 1782 even though the applicant's complaint against the opposing party was in the investigative stage).

A district court has wide discretion to grant discovery under § 1782. Id. at 260–61. In exercising its discretion, a district court considers the following factors: (1) whether the “person from whom discovery is sought is a participant in the foreign proceeding,” (2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial assistance,” (3) whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States,” and (4) whether the request is “unduly intrusive or burdensome.” Id. at 264–65.

A district court's discretion is to be exercised in view of the twin aims of § 1782: (1) providing efficient assistance to participants in international litigation and (2) encouraging foreign countries by example to provide similar assistance to our courts. Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004). There is no requirement that the party seeking discovery establish that the information sought would be discoverable under the governing law in the foreign proceeding or that United States law would allow discovery in an analogous domestic proceeding. See Intel, 542 U.S. at 247, 261–63.

When considering an application for discovery under § 1782, the court first considers whether it has the statutory authority to grant the request and then whether it should exercise its discretion to do so. Lazaridis v. Int'l Ctr. for Missing & Exploited Child., Inc., 760 F. Supp. 2d 109, 112 (D.D.C. 2011) (citations omitted).

*3 Hapag-Lloyd contends that it satisfies the statutory requirements of § 1782: the persons or entities reside in the Northern District of California; the discovery sought is “for use” in the German lawsuit; and it is an “interested person” in those proceedings. Chidori Ship Holding and Jessica Ship Holding dispute only the statutory requirement that they reside or are found in this district, noting that some of what Hapag-Lloyd seeks is not on the ship or in this district.[10] In its reply, citing In re Mare Shipping Inc., Hapag-Lloyd counters that it wants discovery only from the ship and its crew, not discovery that is not here.[11] No. 13 Misc. 238, 2013 WL 5761104, at *3 (S.D.N.Y. Oct. 23, 2013).

Hapag-Lloyd's limitation of its application to evidence located in this district resolves the statutory issue. Id. In Mare Shipping, the court ordered discovery under § 1782 for information located in New York, even though the real party of interest was the Kingdom of Spain. Id. Another court in this district granted a similar ex parte request under § 1782 for discovery from the same ship for the same accident. (The applicants there were Roanoke Insurance Group and W.E. Cox Claims Group, and the anticipated litigation is in South Korea, Singapore, and Germany.) In re Roanoke Ins. Grp. Inc., No. 21-mc-80110-JCS, ECF No. 6 at 5–6 (May 4, 2021). And the parties do not dispute that discovery is generally appropriate under the discretionary Intel factors.

Chidori Ship Holding and Jessica Ship Holding also made burden and scope objections. These objections may be moot: they said that they were making an additional production that would satisfy Hapag-Lloyd's subpoena.[12] If the dispute is not moot, then there is a live dispute still.

Courts look to the Federal Rules of Civil Procedure to determine the proper scope of discovery in a § 1782 application. In re Letters Rogatory from the Tokyo Dist. Prosecutor's Off., 16 F.3d 1016, 1019–20 & n.3 (9th Cir. 1994); Knaggs v. Yahoo! Inc., No. 15-MC-80281-MEJ, 2016 WL 3916350, at *7 (N.D. Cal. July 20, 2016) (collecting cases). An applicant thus must show that the discovery is relevant to the claims and defenses in the foreign tribunal. Rainsy v. Facebook, Inc., 311 F. Supp. 3d 1101, 1110 (N.D. Cal. 2018). Under the Intel test, “unduly intrusive or burdensome requests may be rejected or trimmed.” 542 U.S. at 265. Requests are “unduly intrusive and burdensome where they are not narrowly tailored, request confidential information[,] and appear to be a broad ‘fishing expedition’ for irrelevant information.” In re Qualcomm Inc., 162 F. Supp. 3d 1029, 1043 (N.D. Cal. 2016); In re Gemeinshcaftspraxis Dr. Med. Schottdorf, No. Civ. M19-88 (BSJ), 2006 WL 3844464, at *8 (S.D.N.Y. Dec. 29, 2006) (courts must look at whether the discovery requested is “sufficiently tailored to the litigation issues for which production is sought.”).

If there are any scope-of-production issues, the parties must confer and raise them in a joint letter brief (as described in the court's standing order, attached).

This disposes of ECF No. 1. Any further disputes may be raised in a joint letter.

IT IS SO ORDERED.

*4 Parties must comply with the procedures in the Federal Rules of Civil and Criminal Procedure, the local rules, the general orders, this standing order, and the Northern District's standing order for civil cases titled “Contents of Joint Case Management Statement.” These rules and a summary of electronic-filing requirements (including the procedures for emailing proposed orders to chambers) are available at http://www.cand.uscourts.gov (click “Rules” or “ECF-PACER”). A failure to comply with any of the rules may be a ground for monetary sanctions, dismissal, entry of judgment, or other appropriate sanctions.

I. CALENDAR DATES AND SCHEDULING

Motions are heard each Thursday: civil motions at 9:30 a.m. and criminal motions at 10:30 a.m. Case-management conferences are every Thursday: criminal cases at 10:30 a.m. and civil cases at 11:00 a.m. Parties must notice motions under the local rules and need not reserve a hearing date in advance if the date is available on the court's calendar (click “Calendars” at http://www.cand.uscourts.gov). Depending on its schedule, the court may reset or vacate hearings. Please call courtroom deputy Elaine Kabiling at (415) 522-3140 with scheduling questions.

II. CHAMBERS COPIES

Under Civil Local Rule 5-1(b), parties must lodge a paper “Chambers” copy of any filing unless another format makes more sense (such as for spreadsheets, pictures, or exhibits that are better lodged electronically). Paper copies must be printed on both sides and three-hole punched, and they must be the electronically filed copies with the PACER/ECF-generated header (with the case number, docket number, date, and ECF page number). Exhibits must be tabbed. Parties do not need to submit copies of certificates of service, certificates of interested entities or persons, consents or declinations to the court's jurisdiction, stipulations that do not require a court order (see Civil Local Rule 6-1), or notices of appearance or substitution of counsel. Please read Civil Local Rule 79-5 regarding the requirements for filing documents under seal and providing copies.

III. CIVIL DISCOVERY

1. Evidence Preservation. After a party has notice of this order, it must take the steps needed to preserve information relevant to the issues in this action, including suspending any document-destruction programs (including destruction programs for electronically maintained material).

2. Production of Documents In Original Form. When searching for material under Federal Rule of Civil Procedure 26(a)(1) or after a Federal Rule of Civil Procedure 34(a) request, parties (a) must search all locations — electronic and otherwise — where responsive materials might plausibly exist, and (b) to the extent feasible, produce or make available for copying and/or inspection the materials in their original form, sequence, and organization (including, for example, file folders).

3. Privilege Logs. If a party withholds material as privileged, see Fed. R. Civ. P. 26(b)(5) and 45(d)(2)(A), it must produce a privilege log that is sufficiently detailed for the opposing party to assess whether the assertion of privilege is justified. The log must be produced as quickly as possible but no later than fourteen days after the party's disclosures or discovery responses are due unless the parties stipulate to, or the court sets, another date. Unless the parties agree to a different logging method, privilege logs must contain the following: (a) the title and description of the document, the number of pages, and the Bates-number range; (b) the subject matter or general nature of the document (without disclosing its contents); (c) the identity and position of its author; (d) the date it was communicated (or prepared, if that is the more relevant date); (e) the identity and position of all addressees and recipients of the communication; (f) the document's present location; (g) the specific basis for the assertion that the document is privileged or protected (including a brief summary of any supporting facts); and (h) the steps taken to ensure the confidentiality of the communication, including an affirmation that no unauthorized persons received the communication.

*5 4. Expedited Procedures for Discovery Disputes. The parties may not file formal discovery motions. Instead, and as required by the federal rules and local rules, the parties must meet and confer to try to resolve their disagreements. See Fed. R. Civ. P. 37(a)(1); Civil L. R. 37-1. Counsel may confer initially by email, letter, or telephone to try to narrow their disputes. After trying those means, lead trial counsel then must meet and confer in person to try to resolve the dispute. (If counsel are located outside of the Bay Area and cannot confer in person, lead counsel may meet and confer by telephone.) Either party may demand such a meeting with ten days’ notice. If the parties cannot agree on the location, the location for meetings will alternate. The plaintiff's counsel will select the first location, defense counsel will select the second location, and so forth. If the parties do not resolve their disagreements through this procedure, lead counsel must file a joint letter brief no later than five days after lead counsels’ in-person meet-and-confer. The letter brief must be filed under the Civil Events category of “Motions and Related Filings > Motions — General > Discovery Letter Brief.” It may be no more than five pages (12-point font or greater, margins of no less than one inch) without leave of the court. Lead counsel for both parties must sign the letter and attest that they met and conferred in person. Each issue must be set forth in a separate section that includes (1) a statement of the unresolved issue, (2) a summary of each parties’ position (with citations to supporting facts and legal authority), and (3) each party's final proposed compromise. (This process allows a side-by-side, stand-alone analysis of each disputed issue.) If the disagreement concerns specific discovery that a party has propounded, such as interrogatories, requests for production of documents, or answers or objections to such discovery, the parties must reproduce the question/request and the response in full either in the letter or, if the page limits in the letter are not sufficient, in a single joint exhibit. The court then will review the letter brief and determine whether formal briefing or future proceedings are necessary. In emergencies during discovery events such as depositions, the parties may contact the court through the court's courtroom deputy pursuant to Civil Local Rule 37-1(b) but first must send a short joint email describing the nature of the dispute to lbpo@cand.uscourts.gov.

IV. CONSENT CASES

1. In cases that are assigned to Judge Beeler for all purposes, the parties must file their written consent or declination of consent to the assignment of a United States Magistrate Judge for all purposes as soon as possible. If a party files a dispositive motion (such as a motion to dismiss or a motion for remand), the moving party must file the consent or declination simultaneously with the motion, and the party opposing the motion must file the consent or declination simultaneously with the opposition.

2. The first joint case-management conference statement in a case must contain all of the information in the Northern District's standing order titled “Contents of Joint Case Management Statement.” Subsequent statements for further case-management conferences must not repeat information contained in an earlier statement and instead must report only progress or changes since the last case-management conference and any new recommendations for case management.

V. SUMMARY-JUDGMENT MOTIONS

*6 The parties may not file separate statements of undisputed facts. See Civil L. R. 56-2. Joint statements of undisputed facts are not required but are helpful. Any joint statement must include — for each undisputed fact — citations to admissible evidence. A joint statement generally must be filed with the opening brief, and the briefs should cite to that statement. A reasonable process for drafting a joint statement is as follows: (1) two weeks before the filing date, the moving party proposes its undisputed facts, and (2) one week later, the responding party replies and the parties meet and confer about any disagreements. For oppositions, a responding party may propose additional undisputed facts to the moving party within seven days after the motion is filed and ask for a response within two business days.

IT IS SO ORDERED.

/s/ LAUREL BEELER

LAUREL BEELER

United States Magistrate Judge