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KLEE, TUCHIN, BOGDANOFF 

& STERN LLP

1999

AVENUE OF THE STARS, THIRTY-NINTH FLOOR

LOS 

ANGELES, CALIFORNIA 90067

TELEPHONE: 310-407-4000

Kenneth N. Klee (State Bar No. 63372)

David M. Stern (State Bar No. 67697)

Samuel M. Kidder (State Bar No. 284015)

KLEE, TUCHIN, BOGDANOFF & STERN LLP

1999 Avenue of the Stars, Thirty-Ninth Floor

Los Angeles, California 90067

Telephone: 310-407-4000

Facsimile: 310-407-9090

Email: kklee@ktbslaw.com

dstern@ktbslaw.com 

skidder@ktbslaw.com

Attorneys for NextEra Energy, Inc. and

NextEra Energy Partners, L.P.

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

In re:

PG&E CORPORATION,

-andPACIFIC GAS AND ELECTRIC COMPANY,

Debtors.

Bankruptcy Case

No. 19-30088 (DM)

Chapter 11

(Lead Case)

(Jointly Administered)

NEXTERA ENERGY’S LIMITED 

OPPOSITION TO (I) MOTION OF THE 

OFFICIAL COMMITTEE OF TORT 

CLAIMANTS FOR ENTRY OF A 

PROTECTIVE ORDER; AND 

(II) DEBTORS’ MOTION FOR ENTRY 

OF PROTECTIVE ORDER PURSUANT 

TO FED. R. BANKR. P. 7026 AND 

9014(c) AND 11 U.S.C. § 105(a) 

GOVERNING DISCOVERY 

MATERIALS AND OTHER 

INFORMATION

Date: June 26, 2019

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

Place: United States Bankruptcy Court

Courtroom 17, 16th Floor

San Francisco, CA 94102

Objection Deadline: June 19, 2019

4:00 p.m. (PST)

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).

Case: 19-30088 Doc# 2617 Filed: 06/19/19 Entered: 06/19/19 12:11:17 Page 1 of

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KLEE, TUCHIN, BOGDANOFF 

& STERN LLP

1999

AVENUE OF THE STARS, THIRTY-NINTH FLOOR

LOS 

ANGELES, CALIFORNIA 90067

TELEPHONE: 310-407-4000

NextEra Energy, Inc. and NextEra Energy Partners, L.P. (together, “NextEra”) hereby 

submit this limited opposition to the (i) Motion of the Official Committee of Tort Claimants for 

Entry of a Protective Order [Docket No. 2419] (the “TCC Motion”), filed by the Official 

Committee of Tort Claimants (the “TCC”); and (ii) Motion for Entry of Protective Order Pursuant 

to Fed. R. Bankr. P. 7026 and 9014(c) and 11 U.S.C. § 105(a) Governing Discovery Materials 

and Other Information [Docket No. 2459] (the “Debtor Motion” and, together with the TCC 

Motion, the “Motions”)1 filed by the Debtors.

I. LIMITED OPPOSITION

Under the guise of a discrete “discovery dispute aris[ing] out of the Debtors’ two-month 

refusal to give the TCC access to [certain] documents,” TCC Motion, 2:10-11, the TCC and the 

Debtors seek to impose their own (competing) sweeping protective orders on any party in interest 

who participates in any “discovery in the Chapter 11 Cases and related proceedings, including 

informal discovery, discovery under Bankruptcy Rule 2004, and discovery in connection with 

judicial or other proceedings, such as contested matters, adversary proceedings and other 

disputes . . . .” Debtor Motion, 2:6-8; Debtor Order, § 1 (same); TCC Order,2 § 1 (same); see also 

Debtor Order § 2.4 (applying protections to “information provided to the Receiving Party orally”); 

TCC Order §§ 1 & 2.4 (same). Although NextEra did not have a seat at the table in negotiating 

the Proposed Orders, it is not conceptually opposed to the entry of a uniform protective order to 

govern all discovery in the Cases. NextEra takes issue, however, with three specific flaws, each as 

detailed below, in the Proposed Orders and on that basis submits this limited opposition to both 

Motions. 

A. The Debtor Order Improperly Shifts the Burden of Challenging Confidentiality 

Designations

The Debtor Order puts the onus on the Challenging Party to file a motion challenging the 

Designating Party’s designation of material as Confidential, Professional Eyes Only, or Highly 

 

1 Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them 

in the applicable Motion.

2 The terms “TCC Order” and “Debtor Order” (together, the “Proposed Orders”) refer to the 

proposed orders attached to the TCC Motion and the Debtor Motion, respectively.

Case: 19-30088 Doc# 2617 Filed: 06/19/19 Entered: 06/19/19 12:11:17 Page 2 of

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KLEE, TUCHIN, BOGDANOFF 

& STERN LLP

1999

AVENUE OF THE STARS, THIRTY-NINTH FLOOR

LOS 

ANGELES, CALIFORNIA 90067

TELEPHONE: 310-407-4000

Confidential Material. See Debtor Order, § 6.3. In other words, under the Debtors’ proposed 

procedure, so long as the producing party “in good faith” designates its documents as confidential, 

the receiving party will be bound by such designation unless it undertakes the burden and expense 

of obtaining an order reversing such designation. 

The Debtors get the designation process backwards. Bankruptcy cases are public matters. 

The Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”) contemplate protection from 

public disclosure of certain limited categories of information, including “trade secret[s] or other 

confidential research, development, or commercial information.” FED. R. CIV. P. 26(c)(1) (made 

applicable to adversary proceedings and contested matters by Bankruptcy Rules 7026 and 9014(c), 

respectively); see also FED. R. BANKR. P. 9018. Rule 26(c)(1) is not self-executing; rather, it 

provides that the “party... from whom discovery is sought may move for a protective order... 

requiring that a trade secret or other confidential research, development, or commercial 

information not be revealed or be revealed only in a specified way....” FED. R. CIV. P. 26(c)(1)(G)

(emphasis added); see also FED. R. BANKR. P. 9018 (material may be protected from public view 

only “on motion or on [the court’s] own initiative”). Similarly, the model protective order (the 

“Model Order”) promulgated by the U.S. District Court for the Northern District of California 

provides that the Designating Party shall be required to initiate any “Resolution Motion” and shall 

bear the burden of persuasion in any such challenge proceeding. See Fuller Decl. [Docket No. 

2420], Ex. 1 (Model Order).

As explained in the TCC Motion,

3 it is illogical and impractical to shift the onus in these 

Cases. Among other problems, the Debtors’ proposed process is ripe for exploitation, as the 

Designating Party would face no consequences for testing the limits of the “good faith” standard 

when making confidentiality designations. Accordingly, the Court should adopt the Judicial 

Intervention procedures set out in Section 6.3 of the TCC Order.

 

3 NextEra adopts in full the arguments made in Section V of the TCC Motion regarding the 

impropriety of the Debtors’ proposed process for initiating a Resolution Motion.

Case: 19-30088 Doc# 2617 Filed: 06/19/19 Entered: 06/19/19 12:11:17 Page 3 of

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KLEE, TUCHIN, BOGDANOFF 

& STERN LLP

1999

AVENUE OF THE STARS, THIRTY-NINTH FLOOR

LOS 

ANGELES, CALIFORNIA 90067

TELEPHONE: 310-407-4000

B. Both Proposed Orders Fail to Provide for Sharing Within Common Interest Groups

As the Court is aware, NextEra has been working collaboratively with, inter alia, similarly 

situated counterparties to power purchase agreements (collectively, “PPA Counterparties”) with 

respect to issues on which they share a common interest, including in Adv. Proc. No. 19-03003-

DM and the recently-filed appeals of the judgment entered therein. Moreover, if the Debtors 

move to reject one or more of the PPA Counterparties’ contracts, NextEra anticipates that 

discovery will be required and that the sharing of discovery material among the common interest 

group will be necessary and appropriate. 

Both of the Proposed Orders, however, include provisions that could make common 

interest sharing excessively burdensome or, with respect to Protected Material, impossible. 

Sections 7.2 and 7.3 of the Proposed Orders enumerate the persons to whom “Confidential” and 

“Highly Confidential” materials, respectively, may be disclosed. For purposes of this limited 

discussion, there is no material difference between the TCC Order and the Debtor Order. Neither 

Proposed Order, read literally, would permit parties in interest who are part of a common interest 

group to share designated materials with other members of the group. 

This oversight may be attributable to the parties’ use of the Model Order as their template 

for the Proposed Orders. As the Debtors observe, the Model Order “expressly contemplates one 

plaintiff and one defendant in the litigation, despite the fact that these Chapter 11 Cases bear no 

resemblance to a standard two-party litigation.” Debtor Motion, 9:16-19. It is therefore 

unsurprising that the Model Order (and the TCC’s and Debtors’ Proposed Orders derived 

therefrom) fails to account for the possibility of information-sharing among parties who share a 

common interest in the litigation. This is problematic not only for the PPA Counterparties, but for 

the numerous other common interest constituencies in the Cases (e.g., the ad hoc committee of 

senior unsecured noteholders and the ad hoc group of subrogation claim holders) who will be 

precluded from sharing confidential discovery materials among themselves absent modifications 

to the Proposed Orders.

Accordingly, it is appropriate to “deviate from the model form to accommodate the unique 

nature and circumstances of complex chapter 11 proceedings such as these that involve multiple 

Case: 19-30088 Doc# 2617 Filed: 06/19/19 Entered: 06/19/19 12:11:17 Page 4 of

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KLEE, TUCHIN, BOGDANOFF 

& STERN LLP

1999

AVENUE OF THE STARS, THIRTY-NINTH FLOOR

LOS 

ANGELES, CALIFORNIA 90067

TELEPHONE: 310-407-4000

parties . . . .” Debtor Motion, 10:7-9. NextEra submits that the problem can be fixed by 

modifying the definition of “Receiving Party” in the applicable Proposed Order by adding the 

following italicized language:

2.10 Receiving Party: a Party that receives Discovery Material directly from the 

Producing Party, or any Party who shares a common interest with the Party 

receiving Discovery Material with respect to the matter to which the Discovery 

Material relates and signs the “Acknowledgment and Agreement to Be Bound 

(Exhibit A).”

Absent the above modification (or other language permitting the sharing of Discovery 

Materials among parties with a common interest), the Proposed Orders would vitiate common 

interest alliances and should not be approved.

C. It is Impractical to Apply a Protective Order to Oral Information

Confidentiality designations are always problematic, but at least if applied only to labelled 

documents, what is protected is clear. It is also easy to contest the confidentiality of a document, 

or, often, the portions which are not entitled to extraordinary protection (and which, not 

infrequently, are the only portions which are relevant to a dispute). Oral conversations, other than 

those which are transcribed (e.g., depositions), do not offer similar clarity. Including them creates 

needless confusion and hazards. Whatever the shape of the protective order, oral non-transcribed 

disclosures cannot be part of it. Cf. Model Order, § 2.5 (definition of “Disclosure or Discovery 

Material” excludes oral communications other than “testimony” and “transcripts”). If either of the 

Proposed Orders becomes the template for an entered protective order, Section 2.4 should be 

modified to delete the reference to “information provided to the Receiving Party orally.”

[Remainder of page intentionally left blank]

Case: 19-30088 Doc# 2617 Filed: 06/19/19 Entered: 06/19/19 12:11:17 Page 5 of

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KLEE, TUCHIN, BOGDANOFF 

& STERN LLP

1999

AVENUE OF THE STARS, THIRTY-NINTH FLOOR

LOS 

ANGELES, CALIFORNIA 90067

TELEPHONE: 310-407-4000

II. CONCLUSION

NextEra requests that the Court deny both Motions unless the ultimate protective order 

includes provisions (i) permitting parties sharing a common interest to share Protected Material 

with each other, and (ii) substantially similar to the Judicial Intervention procedures set forth in 

Section 6.3 of the TCC Motion. Additionally, NextEra requests that non-transcribed oral 

communications be excluded from the definition of “Discovery Material.”

DATED: June 19, 2019 /s/ David M. Stern

Kenneth N. Klee

David M. Stern

Samuel M. Kidder

KLEE, TUCHIN, BOGDANOFF & STERN LLP

Attorneys for NextEra Energy, Inc. and NextEra 

Energy Partners, L.P..

Case: 19-30088 Doc# 2617 Filed: 06/19/19 Entered: 06/19/19 12:11:17 Page 6 of

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