Resolute Forest Products, Inc. v. Greenpeace International

1                                                                         
2                                                                         
3                                                                         
4                      UNITED STATES DISTRICT COURT                       
5                     NORTHERN DISTRICT OF CALIFORNIA                     
6                                                                         
7    RESOLUTE FOREST PRODUCTS, INC.,  Case No.  17-cv-02824-JST   (KAW)   
     et al.,                                                              
8                                                                         
               Plaintiffs,            ORDER REGARDING JOINT               
9                                     DISCOVERY LETTER                    
           v.                                                             
10                                     Re: Dkt. No. 297                    
     GREENPEACE INTERNATIONAL, et al.,                                    
11                                                                         
               Defendants.                                                
12                                                                         
13        Plaintiffs are corporate entities who harvest wood for the manufacture and sale of paper 
14   products.  (First Amended Compl. (“FAC”) ¶¶ 24-30, Dkt. No. 185.)  Defendants are non-profit 
15   environmental advocacy organizations and several of their employees.  (FAC ¶¶ 31-33, 36-39.)  
16   Following a motion to dismiss, Plaintiffs’ surviving claims are for defamation (and the 
17   corresponding Unfair Competition Law claim) based on Defendants’ December 2016 and May 
18   2017 statements that Plaintiffs were operating in the Montagnes Blanches.  (FAC ¶¶ 304-09; see 
19   also Dismissal Ord. at 34, Dkt. No. 246.)  These statements were made after the Quebec Minister 
20   of Forests, Wildlife, and Parks issued a statement explaining that a map featured in a 2010 
21   Greenpeace Canada report, to show that Plaintiffs logged in the Montagnes Blanches, was 
22   misleading.  (FAC ¶ 217; Dismissal Ord. at 5.)                        
23        Pending before the Court is the parties’ January 9, 2020 joint discovery letter.  (Discovery 
24   Letter, Dkt. No. 297.)  Plaintiffs seek discovery related to the Montagnes Blanches starting from 
25   June 1, 2012, “two months prior to [the] earliest known effort by Greenpeace to accuse Resolute 
26   of operating in the Montagnes Blanches . . . .”  (Id. at 2.)  Defendants assert that discovery should 
27   start from January 1, 2013, citing to the Court’s prior discovery order.  (Id. at 1-2.) 
1   figure, a plaintiff must demonstrate “‘actual malice’; that is, ‘with knowledge of their falsity or 
2   with reckless disregard for the truth.’”  Makaeff v. Trump Univ., LLC, 715 F.3d 254, 265 (9th Cir. 
3   2013) (internal quotation omitted).  Reckless disregard, in turn, exists where “the defendant . . . 
4   made the false publication with a high degree of awareness of probable falsity, or must have 
5   entertained serious doubts as to the truth of his publication.”  Harte-Hanks Commc’ns, Inc. v. 
6   Connaughton, 491 U.S. 657, 667 (1989) (internal quotations omitted).  Applying these principles, 
7   the Court found that “information about how Greenpeace Defendants defined Montagnes Blanches 
8   is directly relevant to actual malice . . . .”  (Discovery Ord. at 7, Dkt. No. 269.)  Thus: 

9             The Court . . . disagrees with Greenpeace Defendants that the 
              discovery should primarily consist “of the materials and information 
10             considered and relied upon by the speaker when authoring the 
              allegedly defamatory statements regarding the Montagnes Blanches 
11             forest region in 2016 and 2017.”  As Plaintiffs argue, the statements 
              regarding the Montagnes Blanches appear to be part of a campaign 
12             against [Plaintiffs], going back to December 2012.  For example, a 
              2013 report by Greenpeace Canada accusing Plaintiffs of violating 
13             the CBFA -- and later distributed by Defendant Brindis -- contained 
              claims that Plaintiffs were logging in the Montagnes Blanches.   
14             Thus, information about the Montagnes Blanches preceding the 
              2016 and 2017 statements, even as far back as 2013, may be  
15             relevant to actual malice, as it goes to Defendants’ motivation and 
              knowledge base when making the challenged statements.       
16                                                                         
17   (Id. (citations omitted).)                                            
18        In so finding, the Court did not conclude that information prior to 2013 was necessarily not 
19   discoverable.  Indeed, Plaintiffs point to a December 2012 article published by non-party 
20   Greenpeace Canada, which asserted that Plaintiffs built logging roads in the Montagnes Blanches.  
21   (Discovery Letter at 1.)  The December 2012 article included photographs and video, which the 
22   article stated had been taken by Greenpeace employees in August 2012.  (Id.)  The December 
23   2012 article was then disseminated by Defendants in early 2013.  (Id. at 2; FAC ¶ 113.)  Thus, 
24   information related to the December 2012 article, including the photographs and video taken in 
25   August 2012, is discoverable because it may lead to relevant information as to Defendants’ 
26   definition of the Montagnes Blanches and their knowledge about its borders when they made the 
27   actionable 2016 and 2017 statements.                                  
   1    information is not discoverable because the presiding judge dismissed claims based on statements 
   2  || made prior to the Quebec Minister’s May 2016 statement.  (Discovery Letter at 4.)  That, however, 
   3  || does not mean all prior information is irrelevant.  This is particularly the case where Defendants 
   4  || have argued that their definition of the Montagnes Blanches may differ from the Quebec 
   5  || government’s.  (See Discovery Ord. at 7.)  Thus, how Defendants define Montagnes Blanches is 
   6  || discoverable, even if it predates the May 2016 statement. 
   7          Second, Defendants deny Plaintiffs’ allegation that Defendants were engaged in a 
   8  || longstanding “campaign” to accuse Plaintiffs of logging in the Montagnes Blanches.  (Discovery 
   9  ||  Letter at 4.)  Plaintiffs, however, are not required to rely on Defendants’ assertions. 
  10          Third, Defendants contend that the December 2012 article was “of a wholly different 
  11    character” than the actionable 2016 and 2017 statements.  (Discovery Letter at 4.)  Defendants 
   12    argue that the December 2012 article concerned logging in a zone prohibited under the Canadian 
   13  || Boreal Forest Agreement (“CBFA”) while the 2016 and 2017 statements concern logging in the 
   14  || Montagnes Blanches Endangered Forest, a region that has been identified since 2010.  □□□□ 
3    15    Plaintiffs dispute this characterization, and further point out that the actionable 2016 and 2017 
a    16  || statements do not refer to the “Montagnes Blanches Endangered Forest.”  (/d. at 3.)  This appears 
3    17    to be a factual dispute, and not a basis for withholding discovery. 
   18          Finally, Defendants generally argue that the presiding judge already dismissed claims 
  19    based on other statements, such as those related to the CBFA.  (Discovery Letter at 5.)  While 
  20  || accurate, the discovery at issue concerns Defendants’ knowledge about the Montagnes Blanches. 
  21    Even if such information was obtained when making non-actionable statements, it still goes to 
  22  || what Defendants knew when they made the actionable statements. 
  23          Accordingly, Defendants are allowed to seek documents related to the Montagnes 
  24 || Blanches beginning in June 1, 2012. 
  25          IT IS SO ORDERED. 
  26    Dated: January 21, 2020                                   ' 

  28                                              United States Magistrate Judge