1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

SAN FRANCISCO

1 

Robert A. Julian (SBN 99469) 

Cecily A. Dumas (SBN 111449) 

BAKER & HOSTETLER LLP 

1160 Battery Street, Suite 100 

San Francisco, CA 94111 

Telephone: 628.208.6434 

Facsimile: 310.820.8859 

Email: rjulian@bakerlaw.com 

Email: cdumas@bakerlaw.com 

Eric E. Sagerman (SBN 155496) 

Lauren T. Attard (SBN 320898) 

BAKER & HOSTETLER LLP 

11601 Wilshire Boulevard, Suite 1400 

Los Angeles, CA 90025 

Telephone: 310.820.8800 

Facsimile: 310.820.8859 

Email: esagerman@bakerlaw.com 

Email: lattard@bakerlaw.com 

Counsel for Official Committee of Tort Claimants 

UNITED STATES BANKRUPTCY COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

In re:

PG&E CORPORATION 

-andPACIFIC GAS AND ELECTRIC 

COMPANY, 

 Debtors. 

□ Affects PG&E Corporation 

□ Affects Pacific Gas and Electric Company 

■ Affects both Debtors 

*All papers shall be filed in the Lead Case, 

No. 19-30088 (DM) 

Bankruptcy Case 

No. 19-30088 (DM) 

Chapter 11 

(Lead Case) 

(Jointly Administered) 

MOTION OF THE OFFICIAL 

COMMITTEE OF TORT CLAIMANTS 

FOR ENTRY OF A PROTECTIVE 

ORDER 

Date: June 26, 2019 

Time: 9:30 a.m. (Pacific Time) 

Place: United States Bankruptcy Court 

 Courtroom 17, 16th Floor 

 San Francisco, CA 94102 

Objection Deadline: June 19, 2019, 

 4:00 p.m. (Pacific Time)

 

Case: 19-30088 Doc# 2419 Filed: 06/05/19 Entered: 06/05/19 20:03:53 Page 1 of

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

SAN FRANCISCO

2 

The Official Committee of Tort Claimants (the “TCC”) in the above-captioned chapter 11 

cases (the “Chapter 11 Cases”) of PG&E Corporation and Pacific Gas and Electric Company 

(collectively the “Debtors”) hereby submits this motion for entry of a protective order governing 

the production, review, disclosure, and handling of discovery materials produced by the parties in 

the Chapter 11 Cases (the “Motion”). In support of this Motion, the TCC submits the Declaration 

of Lars Fuller (the “Fuller Declaration”) filed contemporaneously herewith. A proposed form of 

order granting the relief requested is attached hereto as Exhibit A (the “Proposed Protective 

Order”). 

I. INTRODUCTION 

This discovery dispute arises out of the Debtors’ two-month refusal to give the TCC access 

to the documents the Debtors have already produced to the fire victims in the California state court 

North Bay fire litigation. After two months of arguing over the matter, the Debtors have agreed to 

provide the TCC with access to the already-produced documents, that are already in the database, 

provided the TCC agrees to a protective order over certain allegedly “confidential” documents that 

are in that database. The Debtors insist on a protective order that places the burden of whether or 

not the documents are confidential on the receiving party, in this case the TCC. This idea flies in 

the face of the Northern District standard protective order, and every other protective order entered 

in the state, which places the burden on proving confidentiality on the party placing the restriction 

of confidentiality on the documents. After two months of attempting to get access to documents 

the Debtors have already placed in a database for use in litigation, the TCC is now forced to bring 

this dispute to the Court for resolution. 

The parties have agreed substantially on a stipulated proposed protective order to govern 

the production and exchange of discovery in these jointly administered chapter 11 cases. However, 

the Debtors have been unwilling to agree to standard, boilerplate language within this District and 

this Court regarding the provision for “judicial intervention,” i.e., which party shall bear the burden 

of filing a motion to resolve a dispute regarding the designation of materials as confidential. The 

U.S. District Court’s model protective order for the Northern District of California, as well as prior 

Case: 19-30088 Doc# 2419 Filed: 06/05/19 Entered: 06/05/19 20:03:53 Page 2 of

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

SAN FRANCISCO

3 

approved protective orders in other cases by the Court, place the burden of filing a motion, and the 

burden of persuasion regarding the asserted protection, upon the “Designating Party,” i.e., the party 

that seeks to designate the information as confidential. The Debtors have been unwilling to consent 

to this standard language. Instead, the Debtors wish to place the burden of filing a motion and 

removing the designation as confidential, and the attendant protective restrictions, upon the 

“Challenging Party,” i.e., the party that disputes the designation. 

The TCC has conferred with the Debtors and with counsel for the Unsecured Creditors’ 

Committee regarding the Proposed Protective Order attached hereto as Exhibit A. The Debtors 

have indicated that they remain opposed to the “judicial intervention” procedure set forth in the 

TCC’s Proposed Protective Order. The Debtors have also indicated that the UCC supports a 

protective order that utilizes the judicial intervention procedure proposed by the Debtors. 

The Debtors have refused to produce relevant discovery in the Cases absent a protective 

order. Consequently, the TCC files this Motion to obtain the Court’s resolution of the disputed 

proposed language and to enable the parties to proceed with urgent discovery and document 

production with appropriate protective parameters. 

II. PROPOSED PROTECTIVE ORDER STRUCTURE 

The Proposed Protective Order seeks to govern the production, review, disclosure, and 

handling of “Discovery Material,” which is broadly defined to include all information produced 

in disclosures, responses to discovery requests, or provided to the Debtors’ retained advisors and 

consultants. Exhibit A, at Sections 1; 2.4. The Proposed Protective Order provides that the 

“Producing Party,” i.e., the party producing the Discovery Materials, may designate the produced 

information as confidential. Id., at Section 5. The Proposed Protective Order provides four distinct 

categories of confidentiality. Id. at Sections 5.1−5.4. Once a party receives Discovery Material 

marked as confidential under any of these four categories, the Proposed Protective Order provides 

significant restrictions and obligations on the access and use of the confidential information. Id. at 

Section 7. Based on these restrictions and obligations, it is far easier and less expensive on the 

Case: 19-30088 Doc# 2419 Filed: 06/05/19 Entered: 06/05/19 20:03:53 Page 3 of

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

SAN FRANCISCO

4 

Receiving Party to receive, manage, and utilize Discovery Materials that has not been marked as 

confidential. 

The Proposed Protective Order provides that a Producing Party may only designate 

Discovery Materials as confidential in “good faith.” Id. at Sections 5.2−5.3. This limitation 

regarding whether the Producing Party has properly designated material as confidential in good 

faith is susceptible to disagreement between the parties, particularly given the substantial burden 

that is placed upon the Receiving Party upon receipt of Discovery Materials designated as 

confidential. Consequently, the Proposed Protective Order includes a balanced, progressive 

procedure for resolution of these disputes, requiring conferral, explanation for the designation, and 

written challenge. Id. at Section 6. To the extent the parties cannot reach agreement on the 

designation, the process provides for “Judicial Intervention,” so that the Court may resolve the 

disagreement. Id. at Section 6.3. The TCC proposes that the burden of bringing the motion to 

resolve the conflict (the “Resolution Motion”) should fall on the Designating Party, i.e., the party 

claiming the confidential designation. The Debtors have refused to agree to such a procedure, and 

instead want the party seeking the Discovery Materials, i.e., the Challenging Party, as unprotected 

to bear the burden of requesting the Court’s resolution. 

III. THE COURT’S FORM PROTECTIVE ORDER 

The U.S. District Court for the Northern District of California provides a model “Stipulated 

Protective Order for Standard Litigation.” See Fuller Declaration, Ex. 1 (the “Model Order”). The 

TCC used the Model Order to draft the Proposed Protective Order. The TCC drafted the “Judicial 

Intervention” provision of the Proposed Protective Order to mirror the procedure in the Model 

Order. Id. The Model Order’s “Judicial Intervention” procedure requires the Designating Party to 

initiate the Resolution Motion. Id. at Section 6.3. The Model Order also provides that the “burden 

of persuasion in any such challenge proceeding shall be on the Designating Party.” Id. The TCC 

Proposed Protective Order proposes these same procedures. Notwithstanding the similarity to the 

procedure in the Model Order, the Debtors have refused to agree to the Judicial Intervention 

Case: 19-30088 Doc# 2419 Filed: 06/05/19 Entered: 06/05/19 20:03:53 Page 4 of

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

SAN FRANCISCO

5 

procedure proposed in the Proposed Protective Order. Instead, the Debtors want the burden of 

initiating the Resolution Motion, and the burden of persuasion, to be on the Receiving Party. 

IV. THE COURT’S PRIOR PROTECTIVE ORDERS 

The TCC’s Proposed Protective Order utilizes the same Resolution Motion procedure as 

previously approved by this Court in In re Yellow Cab Cooperative, Inc. See Fuller Declaration, 

Ex. 2, at Section 6.3 (the “Yellow Cab Protective Order”). Exhibit C. The procedure requires 

the Designating Party, not the Requesting Party, to initiate the Resolution Motion. It also requires 

the Designating Party to bear the burden of persuasion that the disputed material should be kept 

confidential. The TCC’s proposed Judicial Intervention procedure mirrors the Court’s prior 

approved protective order in the Yellow Cab Protective Order.

V. ARGUMENT 

The Proposed Protective Order best places the burden of filing the Resolution Motion upon 

the party asserting the need for protection. Following this procedure is logical, given that it is the 

Designating Party that is provided the first opportunity to designate the Discovery Material as 

confidential, restricted only by the amorphous concept of “good faith.” Designation as confidential 

places significant burdens upon the Receiving Party to maintain, preserve, and utilize confidential 

Discovery Material. Placing the burden upon the Receiving Party to remove such restrictions 

would allow the Designating Party to abuse the designation as confidential without consequence. 

Placing the burden on the Designating Party, rather than the Receiving Party, is the logical way to 

enforce the Designating Party’s good faith, and appropriate use of discretion. To the extent the 

Designating Party knows it will bear the burden of requesting Judicial Intervention, as well as the 

burden of persuasion, in keeping a confidential designation for Discovery Materials, it will facilitate 

keeping the Designating Party honest in utilizing confidential designations only where it is 

objectively appropriate. Otherwise, the Designating Party will be able to use designations of 

confidentiality to shift burdens, expense, and significant restrictions upon the Receiving Party for 

materials that should not be designated as confidential. 

Case: 19-30088 Doc# 2419 Filed: 06/05/19 Entered: 06/05/19 20:03:53 Page 5 of

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

SAN FRANCISCO

6 

VI. CONCLUSION 

The TCC requests that the Court enter the attached Proposed Protective Order, which 

complies with the Model Order, as well as the Court’s prior approved protective orders, regarding 

the process for judicial intervention to resolve disputes. In the event the parties are unable to resolve 

a dispute regarding whether a particular confidential designation is appropriate, the Designating 

Party should bear the burden of seeking the Court’s intervention, as well as the burden of persuasion 

in demonstrating that the Discovery Materials should be kept confidential. The procedure the 

Debtors seek to impose is contrary to the established practices of this District and this Court. It 

also gives the Designating Party excessive motivation to designate materials as confidential, while 

placing the burden of removing bad faith and unfounded designations on the Receiving Party who 

should be entitled to receive them without such designation. 

VII. NOTICE 

Notice of the Motion will be provided to (i) the Debtors, c/o PG&E Corporation and Pacific 

Gas and Electric Company, PO Box 770000, 77 Beale Street, San Francisco, CA 94105 (Attn: Janet 

Loduca, Esq.); (ii) Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153 

(Attn: Stephen Karotkin, Esq., Jessica Liou, Esq., and Matthew Goren, Esq.), proposed attorneys 

for the Debtors; (iii) Keller & Benvenutti LLP, 650 California Street, Suite 1900, San Francisco, 

CA 94108 (Attn: Tobias Keller, Esq. and Jane Kim, Esq.), attorneys for the Debtors; (iv) Stroock 

& Stroock & Lavan LLP, 180 Maiden Lane, New York, NY 10038-4982 (Attn: Kristopher M. 

Hansen, Esq., Erez E. Gilad, Esq., and Matthew G. Garofalo, Esq.) and 2029 Century Park East, 

Los Angeles, CA 90067-3086 (Attn: Frank A. Merola, Esq.), as counsel for the administrative agent 

under the Debtors’ debtor-in-possession financing facility; (v) Davis Polk & Wardwell LLP, 450 

Lexington Avenue, New York, NY 10017 (Attn: Eli J. Vonnegut, Esq., David Schiff, Esq., and 

Timothy Graulich, Esq.), as counsel for the collateral agent under the Debtors’ debtor-in-possession 

financing facility; (vi) Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the 

Americas, New York, NY 10019-6064 (Attn: Alan W. Kornberg, Esq., Brian S. Hermann, Esq., 

Walter R. Rieman, Esq., Sean A. Mitchell, Esq., and Neal P. Donnelly, Esq.), as counsel to the 

Case: 19-30088 Doc# 2419 Filed: 06/05/19 Entered: 06/05/19 20:03:53 Page 6 of

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

SAN FRANCISCO

7 

California Public Utilities Commission; (vii) the Office of the United States Trustee for Region 17, 

450 Golden Gate Avenue, 5th Floor, Suite #05-0153, San Francisco, CA 94102 (Attn: James L. 

Snyder, Esq. and Timothy Laffredi, Esq.); (viii) the U.S. Nuclear Regulatory Commission, 

Washington, DC 20555-0001 (Attn: General Counsel); (ix) the U.S. Department of Justice, 1100 L 

Street, NW, Room 7106, Washington DC 20005 (Attn: Danielle A. Pham, Esq.,) as counsel for the 

United States on behalf of the Federal Energy Regulatory Commission; (x) Milbank LLP, 55 

Hudson Yards, New York, NY 10001-2163 (Attn: Dennis F. Dunne, Esq. and Sam A. Khalil, Esq.) 

and 2029 Century Park East, 33rd Floor, Los Angeles, CA 90067 (Attn: Paul S. Aronzon, Esq., 

Gregory A. Bray, Esq., and Thomas R. Kreller, Esq.), as counsel for the Official Committee of 

Unsecured Creditors; and (xi) those persons who have formally appeared in these Chapter 11 Cases 

and requested service pursuant to Bankruptcy Rule 2002. The TCC respectfully submits that no 

further notice is required. 

No previous request for the relief sought herein has been made by the TCC to this or any 

other court. 

WHEREFORE, the TCC respectfully requests entry of the Proposed Protective Order, 

attached hereto as Exhibit A. 

Dated June 5, 2019 Respectfully Submitted, 

BAKER & HOSTETLER LLP 

By: /s/ Robert Julian 

Counsel for The Official Committee of Tort 

Claimants

Case: 19-30088 Doc# 2419 Filed: 06/05/19 Entered: 06/05/19 20:03:53 Page 7 of

7