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Petrobras America, Inc. v. Samsung Heavy Industries Co., Ltd.

United States District Court, S.D. Texas, Houston Division

August 9, 2019

PETROBRAS AMERICA, INC., Plaintiff,
v.
SAMSUNG HEAVY INDUSTRIES CO., LTD., Defendant.

          ORDER

          Lee H. Rosenthal Chief United States District Judge

         In March 2019, Petrobras America, Inc. sued Samsung Heavy Industries Co., Ltd. in Texas state court, asserting claims under RICO and for fraudulent inducement and implicit fraud. (Docket Entry No. 1-3). Samsung removed and moved to dismiss Petrobras's petition for failure to state a plausible claim in May 2019. (Docket Entry Nos. 1, 13). Instead of responding to Samsung's motion to dismiss, Petrobras moved for an extension of time to file an amended complaint, which the court granted in June 2019. (Docket Entry Nos. 27, 28). Petrobras moves for leave to refer in its amended complaint to documents that contain confidential information covered by a nondisclosure agreement the parties signed in 2017. (Docket Entry No. 35). Samsung responded, and Petrobras replied. (Docket Entry No. 37, 38). Based on a careful review of the pleadings; the motion, response, and reply; the record; and the applicable law, the court denies Petrobras's motion for leave to refer to the documents at issue. (Docket Entry No. 35).

         Petrobras alternatively asks the court to enforce discovery requests it served on Samsung under Federal Rules of Civil Procedure 26 and 34. (Id. at 9). Responding that the requests are premature, Samsung has refused to produce the documents. (Docket Entry No. 38 at 5). The court will hear argument on Petrobras's requests for production at the initial conference set for August 26, 2019, at 8:30 a.m. Petrobras must submit a premotion dispute letter on this issue no later than August 16, 2019. Samsung must respond no later than August 21, 2019, and Samsung may reply no later than August 23, 2019. Petrobras's deadline to file an amended complaint is continued pending the resolution of the parties' discovery dispute.

         I. Referring to the Documents

         In July 2017, Petrobras and Samsung were defendants in separate arbitration proceedings against affiliates of Ensco Rowan plc. (Docket Entry No. 36-1 at 1). That month, Petrobras and Samsung entered into a nondisclosure agreement to share and make confidential documents relating to the Ensco arbitrations, including “written submissions and exhibits”; “witness statements and exhibits”; “experts reports and exhibits”; certain schedules; and the tribunal's orders or awards. (Id. at 1-2). The agreement required Petrobras to share the documents with Samsung but prohibited Petrobras from disclosing them “to any third party, ” except:

a. Petrobras' Counsel;
b. The members of the tribunal appointed in the Ensco-Petrobras Arbitration, persons assisting such members, and administrative personnel involved in the Ensco-Petrobras Arbitration (including court reporters, interpreters, and videographers);
c. Witnesses, experts, or other persons who in the reasonable and good-faith opinion of Petrobras' Counsel may appear as witness or expert in the Ensco-Petrobras Arbitration;
d. In-house counsel, employees, officers and directors of Petrobras, provided that such persons are directly involved in the Ensco-Petrobras Arbitration;
e. Persons that have been engaged by Petrobras or Petrobras' Counsel for purposes of translating, photocopying, document storage, or other similar litigation-support activities in connection with the Arbitration;
f. Any other person, with the prior written consent of [Samsung];
g. Any other person, if such disclosure is required by law in the reasonable opinion of Petrobras' counsel, provided however that Petrobras shall promptly notify [Samsung] of any such disclosure obligation prior to such disclosure, and provided further that Petrobras shall cooperate with [Samsung] in reasonable efforts to protect the confidential status of the Ensco-[Samsung] Arbitration Materials.

(Id. at 2, 4).

         Section 4 of the nondisclosure agreement, “Use of the ...


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