In re Application of Sampedro

          RULING ON PETITIONER'S RENEWED MOTION FOR PERMISSION TO PROVIDE § 1782 DISCOVERY TO THE SPANISH REGULATOR (DOC. NO. 198) AND RESPONDENTS' MOTION FOR PROTECTIVE ORDER (DOC. NO. 206)

          ROBERT M. SPECTOR, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         The Court presumes familiarity with its prior rulings, as well as the facts and procedural history of this case. On April 8, 2019, Petitioner, Luis Javier Martinez Sampedro, filed his original Motion for Permission to Provide § 1782 Discovery to the Spanish Regulator (Doc. No. 165) and, in a Ruling dated May 20, 2019, the undersigned denied the motion (Doc. No. 181). On May 28, 2019, Petitioner filed a Motion for Clarification of the May 20, 2019 Ruling. (Doc. No. 182). Following telephonic oral argument (see Doc. Nos. 189, 192, 196, and 197), the undersigned construed the Motion for Clarification as a Motion for Reconsideration, granted reconsideration, and vacated the May 20, 2019 Ruling (see Doc. No. 194). The undersigned ordered further that, in light of “new evidence that existed at the time that [the Court] denied Petitioner's [original] Motion for Permission to Provide 1782 Discovery to the Spanish Regulator[, ]” the parties were to submit new briefing on the Motion for Permission and address following issues:

(1) whether the filing of a formal complaint with the CNMV meets the requirement that a proceeding be “within reasonable contemplation[, ]” see In re Furstenberg Fin. SA, No. 18-MC-44 (JGK), 2018 WL 3392882, at *4 (S.D.N.Y. July 12, 2018);

(2) if so, what discovery is appropriate; and (3) any other issues that the parties think would aid the Court in reaching a decision on the Revised Motion for Permission.

(Doc. No. 194). Petitioner submitted this Renewed Motion for Permission to Provide § 1782 Discovery to the Spanish Regulator on July 2, 2019 (Doc. No. 198).^[1] On July 16, 2019, Respondents filed their oppositions to Petitioner's Motion, as well as their own Motion for Protective Order.^[2] (Doc. Nos. 206, 207, and 210). Petitioner filed his reply on July 19, 2019. (Doc. No. 211).

         For the reasons articulated below, Petitioner's Motion to Provide § 1782 Discovery to the Spanish Regulator (Doc. No. 198) is GRANTED, Petitioner's Motion to De-Designate is DENIED as moot, Petitioner's Motion to Seal (Doc. No. 203) is GRANTED, and Respondents' Motion for Protective Order (Doc. No. 206) is DENIED.

         II. DISCUSSION

         In support of his Renewed Motion for Permission, Petitioner makes three arguments. First, Petitioner argues that the Court should grant the motion pursuant to the “special provision” of the Stipulated Protective Order (Doc. No. 108) that governs requests to use the § 1782 discovery in related proceedings. (Doc. No. 199 at 9-19). Second, and in the alternative, Petitioner argues that the Court should grant his Motion pursuant to its “inherent authority” to modify the existing protective order. (Doc. No. 199 at 19-23). Third, Petitioner argues that, if the Court grants the Motion for Permission, the Stipulated Protective Order would remain in effect, as modified, and Petitioner would not require any additional or new discovery. (Doc. No. 199 at 23-24). In opposition to Petitioner's motion, and in support of their Motion for Protective Order (Doc. No. 206), Respondents argue that there is no “proceeding” within reasonable contemplation in which Petitioner can use the discovery (Doc. No. 207 at 11-21), and, in the alternative, that there exists good cause to prohibit disclosure to the CNMV and issue a separate protective order (Doc. No. 207 at 21-25).

         On January 2, 2019, the Court granted the parties' Joint Motion for Protective Order and issued the parties' Stipulated Protective Order. (See Doc. No. 108). The Stipulated Protective Order provides, inter alia, that, if the producing party agrees, the receiving party may use the discovery obtained in this proceeding “in another litigation, arbitration, or other proceeding arising out of or related to the facts and matters at issue in either the Spanish Litigation or the ICC Arbitration[.]” (Doc. No. 108 at 1). However, “[i]f the producing party does not agree, then the receiving party may request permission from the Court for such use.” (Doc. No. 108 at 1). “In that event, ” the parties agreed that

the provisions of this [stipulated] protective order shall not be considered in the Court's resolution of the question whether such further use should be permitted; and neither the existence of this [stipulated] protective order, nor any part thereof, nor the parties' agreement thereto shall affect either (1) which party bears the burden of showing whether use in additional proceedings should be permitted or restricted, or (2) what that burden is.

(Doc. No. 108 at 1). Thus, the Court cannot consider the provisions of the Stipulated Protective Order in resolving this motion and, as a result, must determine (1) whether a proceeding is ongoing or “within reasonable contemplation, ” and (2) whether, even if there is a related proceeding, there is good cause to prevent disclosure of Respondents' documents to the CNMV in connection with that proceeding.

         A. WHETHER THERE EXISTS A PROCEEDING IN WHICH PETITIONER CAN USE THE § 1782 DISCOVERY

         As Petitioner notes, “the first question for the Court is whether Petitioner's [M]otion seeks to use or disclose discovery in connection with a ‘proceeding.'” (Doc. No. 199 at 9). Petitioner argues that he “has already filed a complaint with the CNMV, . . . the CNMV has stated that it is investigating the allegations, ” and “the first stage of the two-stage regulatory process has already been initiated[, ]” creating a ‘“proceeding' in the CNMV.” (Doc. No. 199 at 10-11). Respondents maintain that there is no proceeding within reasonable contemplation because “(i) the CNMV is not presently conducting an investigation and is unlikely ever to do so; and ...