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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`WHATSAPP INC., et al.,
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`Plaintiffs,
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`v.
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`NSO GROUP TECHNOLOGIES
`LIMITED, et al.,
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`Case No. 19-cv-07123-PJH
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`ORDER GRANTING MOTION TO
`STAY, DENYING MOTION TO
`COMPEL, AND GRANTING MOTIONS
`TO FILE UNDER SEAL
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`Defendants.
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`Re: Dkt. Nos. 116, 117, 133, 143
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`Before the court is defendants NSO Group Technologies Ltd. (“NSO”) and Q
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`Cyber Technologies Ltd.’s (together with NSO, “defendants”) motion to stay pending
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`appeal, (Dkt. 117), and plaintiffs WhatsApp Inc. (“WhatsApp”) and Facebook, Inc.’s
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`(“Facebook” and together with WhatsApp, “plaintiffs”) motion to compel discovery, (Dkt.
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`116). The matters are fully briefed and suitable for decision without oral argument.
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`Having read the parties’ papers and carefully considered their arguments and the
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`relevant legal authority, and good cause appearing, the court rules as follows.
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`BACKGROUND
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`On October 29, 2019, plaintiffs filed a complaint (“Compl.”) alleging that
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`defendants sent malware, using WhatsApp’s system, to approximately 1,400 mobile
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`phones and devices designed to infect those devices for the purpose of surveilling the
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`users of those phones and devices. Dkt. 1, ¶ 1. The complaint alleges four causes of
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`action: (1) violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030;
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`(2) violation of the California Comprehensive Computer Data Access and Fraud Act, Cal.
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`Penal Code § 502; (3) breach of contract; and (4) trespass to chattels.
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`Northern District of California
`United States District Court
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 2 of 15
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`On April 4, 2020, defendants filed a motion to dismiss the complaint, moving to
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`dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6), and 12(b)(7).
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`Dkt. 45. On July 16, 2020, the court issued an order granting in part and denying in part
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`defendants’ motion to dismiss and, as relevant to the present motion, determined that
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`defendants could not assert any sovereign immunity derived from their clients who are
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`sovereign nations. Dkt. 111. On July 21, 2020, defendants filed a notice of appeal,
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`appealing the court’s sovereign immunity finding. Dkt. 112.
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`Meanwhile, plaintiffs have attempted to take discovery of defendants and served
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`their first requests for production on June 2, 2020. Dkt. 116. Defendants have refused to
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`produce any documents and, as a result, plaintiffs have filed a motion to compel
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`discovery, (id.) with the same briefing schedule as the motion to stay pending appeal.1
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`A.
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`Legal Standard
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`DISCUSSION
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`As a general rule, “[t]he filing of a notice of appeal is an event of jurisdictional
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`significance—it confers jurisdiction on the court of appeals and divests the district court of
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`its control over those aspects of the case involved in the appeal.” Griggs v. Provident
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`Consumer Disc. Co., 459 U.S. 56, 58 (1982) (citations omitted). As a corollary to the
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`divestiture rule, “where an appeal is taken from a judgment which does not finally
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`determine the entire action, the appeal does not prevent the district court from
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`proceeding with matters not involved in the appeal.” Britton v. Co-op Banking Grp., 916
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`F.2d 1405, 1411 (9th Cir. 1990).
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`A court may stay proceedings as part of its inherent power “to control the
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`disposition of the causes on its docket with economy of time and effort for itself, for
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`counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Use of this
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`power “calls for the exercise of judgment, which must weigh competing interests and
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`1 In addition, defendants filed a second motion to dismiss plaintiffs’ request for injunctive
`relief under Rule 12(b)(1), (Dkt. 105), and plaintiffs filed a motion to strike portions of
`defendants’ answer, (Dkt. 140).
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`2
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`Northern District of California
`United States District Court
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 3 of 15
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`maintain an even balance.” Id. at 254–55; see also Mediterranean Enters., Inc. v.
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`Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (“[T]he district court did not abuse
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`its discretion by staying the action pending receipt of the results of arbitration.”).
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`In determining whether it should exercise its discretion to grant a stay, the court
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`should consider “the possible damage which may result from the granting of a stay, the
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`hardship or inequity which a party may suffer in being required to go forward, and the
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`orderly course of justice measured in terms of the simplifying or complicating of issues,
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`proof, and questions of law which could be expected to result from a stay.” CMAX, Inc. v.
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`Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citing Landis, 299 U.S. at 254–55). Additionally,
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`“[a] stay should not be granted unless it appears likely the other proceedings will be
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`concluded within a reasonable time in relation to the urgency of the claims presented to
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`the court.” Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979).
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`B.
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`Analysis
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`The ultimate question before the court is the extent to which defendants’ appeal
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`divests the court of jurisdiction over pretrial discovery and any pretrial proceedings. Both
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`defendants’ motion to stay pending appeal and plaintiffs’ motion to compel discovery
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`implicate this question. Defendants argue that their appeal involves claims of foreign
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`sovereign immunity and because foreign sovereign immunity is immunity from suit, the
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`aspects of the case involved in the appeal are quite broad. Mtn. at 2–3. In other words,
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`if defendants prevail on their appeal, they would be able to assert sovereign immunity
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`such that they would be free from all burdens of litigation, including discovery. Id. at 3.
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`Plaintiffs respond that an appeal regarding the specific sovereign immunity defenses
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`asserted by defendants does not warrant an automatic stay and those defenses only
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`operate as affirmative defenses to liability, rather than the right not to be sued. Opp. at 1.
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`The Supreme Court has held that certain types of immunity cases are immediately
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`appealable based on the collateral order doctrine. In Nixon v. Fitzgerald, 457 U.S. 731
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`(1982), and Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court determined that orders
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`denying individual officials’ claims of absolute and qualified immunity could be
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`Northern District of California
`United States District Court
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 4 of 15
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`immediately appealed. In Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy,
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`Inc., 506 U.S. 139, 147 (1993), the Court held that States and state entities that claim to
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`be “arms of the State” could also take advantage of the collateral order doctrine based on
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`their Eleventh Amendment immunity.2 The common element of these cases is that they
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`involve immunity from suit rather than a defense to liability. Thus, in Metcalf & Eddy, the
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`Court explained the import of Fitzgerald and Mitchell:
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`We found that, absent immediate appeal, the central benefits
`of qualified
`immunity—avoiding
`the costs and general
`consequences of subjecting public officials to the risks of
`discovery and trial—would be forfeited . . . . “The entitlement is
`an immunity from suit rather than a mere defense to liability;
`and like an absolute immunity, it is effectively lost if a case is
`erroneously permitted to go to trial.”
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`506 U.S. at 143–44 (quoting Mitchell, 472 U.S. at 526).
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`The Ninth Circuit has held that orders denying motions to dismiss for lack of
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`jurisdiction under the Foreign Sovereign Immunity Act (“FSIA”) are also immediately
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`appealable under the collateral order doctrine. Doe v. Holy See, 557 F.3d 1066, 1074
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`(9th Cir. 2009) (per curiam) (citing Schoenberg v. Exportadora de Sal, S.A., 930 F.2d
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`777, 779 (9th Cir. 1991)). “An interlocutory appeal insures that ‘a foreign state shall be
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`immune from the jurisdiction of the courts of the United States and of the States except
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`as provided [in the FSIA].’” Compania Mexicana De Aviacion, S.A. v. U.S. Dist. Ct. for
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`Cent. Dist. of Cal., 859 F.2d 1354, 1358 (9th Cir. 1988) (per curiam) (quoting 28 U.S.C.
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`§ 1604). Thus, the reason foreign sovereign immunity under the FSIA is immediately
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`appealable is because it is immunity from suit.3
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`2 The term Eleventh Amendment immunity is a shorthand for state sovereign immunity.
`Del Campo v. Kennedy, 517 F.3d 1070, 1075 (9th Cir. 2008). Eleventh Amendment
`immunity is “something of a misnomer, for the sovereign immunity of the States neither
`derives from, nor is limited by, the terms of the Eleventh Amendment. Instead, immunity
`is a fundamental aspect of the sovereignty which the States enjoyed before the
`ratification of the Constitution and which they retain today[,] except as altered by the plan
`of the Convention or certain constitutional amendments.” Id. (alteration in original)
`(citations and quotation marks omitted).
`3 The reason that cases involving immunity from suit are immediately appealable under
`the collateral order doctrine is because the value of immunity “is for the most part lost as
`litigation proceeds past motion practice.” Metcalf & Eddy, 506 U.S. at 145. Conversely,
`when an immunity is simply a defense to liability, “the benefits of immunity are not lost if
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`Northern District of California
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 5 of 15
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`Plaintiffs acknowledge this line of cases and characterize them as relating to
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`status-based immunities, e.g., absolute immunity, qualified immunity, Eleventh
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`Amendment immunity, and double jeopardy. Opp. at 4. Nonetheless, they argue that
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`defendants cannot avail themselves of these status-based immunities because the
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`foreign sovereign immunity on which defendants rely is not immunity from suit. Id. at 5–
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`6. As plaintiffs point out, not all types of immunities necessarily require immunity from
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`suit. For example, in Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir. 1995), the
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`Ninth Circuit noted that “federal sovereign immunity is a defense to liability rather than a
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`right to be free from trial” and held that an order denying federal sovereign immunity was
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`not immediately appealable under the collateral order doctrine.
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`With that framing in mind, the court must determine whether either of the two types
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`of foreign sovereign immunities asserted by defendants would qualify as immunity from
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`suit, i.e., Compania Mexicana (foreign sovereign immunity), Fitzgerald (absolute
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`immunity), Mitchell (qualified immunity), and Metcalf & Eddy (Eleventh Amendment), or
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`immunity from liability, i.e., Alaska (federal sovereign immunity).
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`1.
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`Foreign Official Immunity
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`In its prior order, the court examined whether defendants could assert a common
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`law foreign official immunity. Dkt. 111 at 10–12. Beginning with the Supreme Court’s
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`opinion in The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (1812), up
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`until the enactment of the FSIA in 1976, the doctrine of foreign sovereign immunity was
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`entirely a matter of common law. See Samantar v. Yousuf, 560 U.S. 305, 311 (2010).
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`The Schooner Exchange “came to be regarded as extending virtually absolute immunity
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`to foreign sovereigns.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)
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`(citations omitted). The enactment of the FSIA generally “codifie[d], as a matter of
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`federal law, the restrictive theory of sovereign immunity.” Id. at 488. Yet, until the
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`review is postponed.” Alaska, 64 F.3d at 1356. It is not for this court to decide whether
`defendants meet the collateral order doctrine, but if they prevail on appeal, that decision
`would necessarily entail a holding that their immunity entails the immunity from suit, not
`just immunity from liability.
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`Northern District of California
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 6 of 15
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`Supreme Court’s decision in Samantar, lower courts disputed whether a foreign official
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`could assert the FSIA’s immunity from suit. See, e.g., Chuidian v. Philippine Nat. Bank,
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`912 F.2d 1095, 1103 (9th Cir. 1990).
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`While Samantar held that the FSIA did not apply to foreign officials, 560 U.S. at
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`325, the Court did not consider whether a foreign official could still assert a common law
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`foreign official immunity, id. at 325–26 (remanding to consider whether official may be
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`entitled to immunity under the common law). In Yousuf v. Samantar, 699 F.3d 763, 774
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`(4th Cir. 2012), the Fourth Circuit determined that a foreign official could assert common
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`law foreign official immunity and in Doğan v. Barak, 932 F.3d 888, 894 (9th Cir. 2019),
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`the Ninth Circuit adopted the same rule.
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`Plaintiffs contend that Doğan did not purport to confer a “right not to be tried” upon
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`common law foreign official immunity. Opp. at 6. Plaintiffs also distinguish defendants’
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`citation of Compania Mexicana, 859 F.2d 1354, as only relating to the FSIA. Id.
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`Defendants respond that Doğan expressly held that common law foreign official immunity
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`is immunity from suit rather than a defense to liability. Reply at 3.
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`Doğan, 932 F.3d at 891, dealt with whether a former Israeli Minister of Defense
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`could assert common law foreign official immunity as a defense against claims arising
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`under the Alien Tort Claims Act, the Torture Victim Protection Act (“TVPA”), and the Anti-
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`Terrorism Act. Citing the Restatement (Second) of Foreign Relations Law, the court
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`determined that the defendant could assert common law foreign sovereign immunity. Id.
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`at 893–94. Then, the Ninth Circuit examined whether the TVPA abrogated common law
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`foreign official immunity. Id. at 894. While it cited several reasons why the TVPA did not
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`abrogate foreign official immunity, as relevant here, the court stated, “[b]ecause the
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`whole point of immunity is to enjoy ‘an immunity from suit rather than a mere defense to
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`liability,’ the [plaintiffs’] reading of the TVPA would effectively extinguish the common law
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`doctrine of foreign official immunity.” Id. at 895 (quoting Compania Mexicana, 859 F.2d
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`at 1358). While dicta, the Doğan court considered foreign official immunity to be
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`immunity from suit rather than a defense to liability.
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`6
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`Northern District of California
`United States District Court
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 7 of 15
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`Other cases indicate that if it applies,4 foreign official immunity would be virtually
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`absolute because it derives from the immunity of the foreign sovereign. As discussed,
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`foreign sovereign immunity is “virtually absolute.” Verlinden, 461 U.S. at 486. In turn,
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`foreign officials derive their immunity from the immunity of the sovereign so long as the
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`official’s act was performed as an act of that sovereign. After remand from the Supreme
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`Court, the Fourth Circuit in Yousuf v. Samantar noted that
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`[C]onduct-based immunity for a foreign official derives from the
`immunity of the State: “The doctrine of the imputability of the
`acts of the individual to the State . . . in classical law . . .
`imputes the act solely to the state, who alone is responsible for
`its consequence. In consequence any act performed by the
`individual as an act of the State enjoys the immunity which the
`State enjoys.”
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`699 F.3d at 774 (second and third alterations in original) (quoting Hazel Fox, The Law of
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`State Immunity, 455 (2d ed. 2008)); see also Matar v. Dichter, 563 F.3d 9, 14 (2d Cir.
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`2009) (“[E]ven if Dichter, as a former foreign official, is not categorically eligible for
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`immunity under the FSIA[,] . . . he is nevertheless immune from suit under common-law
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`principles that pre-date, and survive, the enactment of that statute.” (emphasis added)).
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`In Mireskandari v. Mayne, 2016 WL 1165896, at *17–20 (C.D. Cal. Mar. 23, 2016),
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`the district court determined that four individuals who worked for a foreign government
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`were foreign officials acting in their official capacities such that they could assert common
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`law sovereign immunity. The district court determined for each defendant that they were
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`immune from suit and it could not exercise subject matter jurisdiction over the claims
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`asserted against them. On appeal, the Ninth Circuit affirmed the district court’s dismissal
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`of the defendants based on common law foreign sovereign immunity. Mireskandari v.
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`Mayne, 800 Fed. App’x 519, 519–20 (9th Cir. 2020) (citing Doğan, 932 F.3d at 893–94).
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`4 To reiterate, this entire analysis assumes that defendants would prevail on appeal.
`With regard to immunity defenses, the collateral order doctrine presupposes that there is
`immunity from suit, as opposed to a defense to liability. Indeed, in Metcalf & Eddy, the
`Court reasoned that if Eleventh Amendment immunity was “merely a defense to liability,”
`then the litigant asserting the immunity “arguably would not be entitled to avail itself of the
`collateral order doctrine.” 560 U.S. at 145 (citing Van Cauwenberghe v. Biard, 486 U.S.
`517, 526–527 (1988)).
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`Northern District of California
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 8 of 15
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`The foregoing demonstrates that, if defendants prevail in establishing common law
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`foreign official immunity, that immunity would operate as immunity from suit, not simply
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`immunity from liability.
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`2.
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`Derivative Foreign Sovereign Immunity
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`This court’s prior order also determined that defendants could not avail themselves
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`of any derivative sovereign immunity. Dkt. 11 at 13–15. The court first noted that the
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`Ninth Circuit has not adopted a rule of derivative foreign sovereign immunity whereby a
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`contractor could derive immunity from a foreign sovereign based on the Supreme Court’s
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`decision in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), and applied by
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`the Fourth Circuit in Butters v. Vance International, Inc., 225 F.3d 462, 466 (4th Cir.
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`2000). The court also determined that, even if the Ninth Circuit were to adopt the Butters
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`rule, defendants still could not avail themselves of the rule because they are foreign
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`contractors trying to assert foreign sovereign immunity as opposed to a U.S. contractor
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`asserting foreign sovereign immunity. Dkt. 111 at 14–15.
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`In passing, plaintiffs cite Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), for
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`the proposition that federal contractors do not share the government’s unqualified
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`immunity from liability and litigation and Martin v. Halliburton, 618 F.3d 476 (5th Cir.
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`2010), for the proposition that denial of derivative sovereign immunity is not subject to
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`immediate review under the collateral order doctrine. Opp. at 5 n.4. In response,
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`defendants cite cases where contractors asserting derivative sovereign immunity were
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`able to assert immunity from suit, not just immunity from liability. Reply at 6.
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`The parties cite two types of domestic derivative immunity as persuasive: federal
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`sovereign immunity and state sovereign immunity. With respect to the former, a few
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`appellate decisions5 have recognized the Supreme Court’s decision in Yearsley, as
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`5 The Ninth Circuit has also recognized the Yearsley contractor immunity, though the
`proper scope remains an open question. In Cabalce v. Thomas E. Blanchard &
`Associates, Inc. the court noted that, “[w]e have held that derivative sovereign immunity,
`as discussed in Yearsley, is limited to cases in which a contractor ‘had no discretion in
`the design process and completely followed government specifications.’” 797 F.3d 720,
`732 (9th Cir. 2015) (quoting In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1001
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`Northern District of California
`United States District Court
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 9 of 15
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`establishing a derivative immunity for federal contractors. See Ackerson v. Bean
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`Dredging LLC, 589 F.3d 196, 204–07 (5th Cir. 2009). As previously discussed, federal
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`sovereign immunity is not appealable under the collateral order doctrine, Alaska, 64 F.3d
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`at 1357, and it follows that derivative federal contractor immunity, which is narrower than
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`federal sovereign immunity, Campbell-Ewald, 136 S. Ct. at 672, is likewise not
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`appealable under the collateral order doctrine. Indeed, in a federal contractor case, the
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`Fifth Circuit has held that “a denial of [derivative] sovereign immunity is not subject to
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`immediate review under the collateral order doctrine.” Martin, 618 F.3d at 485 (alteration
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`in original) (quoting United States v. Rose, 587 F.3d 695, 705 (2009) (per curiam)).
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`Thus, if derivative foreign sovereign immunity is similar to derivative federal sovereign
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`immunity, then plaintiffs have a plausible argument that derivative foreign sovereign
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`immunity is not immunity from suit.
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`With respect to state sovereign immunity, the Ninth Circuit has previously
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`permitted interlocutory review under the collateral order doctrine to determine whether a
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`private company contracted by a state or state entity could assert derivative state
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`sovereign immunity. See Del Campo, 517 F.3d 1070. Defendants cite Del Campo as
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`demonstrating that derivative sovereign immunity is immunity from suit, because if it were
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`otherwise, then the defendant would not have been able to appeal under the collateral
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`order doctrine. Reply at 6–7. Presumably, if state sovereign immunity is similar to
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`foreign sovereign immunity, then comparison to Del Campo is helpful to defendants.
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`In some respects, this discussion is academic because it presupposes that the
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`Ninth Circuit, on appeal in this case, would adopt a rule similar to the Fourth Circuit’s rule
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`in Butters. In Butters, the court cited Yearsley for the proposition that “contractors and
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`common law agents acting within the scope of their employment for the United States
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`(9th Cir. 2008)). In Gomez v. Campbell-Ewald Co., 768 F.3d 871, 879 (9th Cir. 2014),
`the Ninth Circuit characterized Yearsley as establishing “a narrow rule regarding claims
`arising out of property damage caused by public works projects.” However, on appeal to
`the Supreme Court, the Court rejected this interpretation, noting “[c]ritical in Yearsley was
`not the involvement of public works, but the contractor’s performance in compliance with
`all federal directives.” Campbell-Ewald, 136 S. Ct. at 673 n.7.
`9
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`Northern District of California
`United States District Court
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`have derivative sovereign immunity. 225 F.3d at 466. This might suggest that a similar
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`derivative sovereign immunity is not immediately appealable and not a complete defense,
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`as recognized in Alaska and Martin. Yet, the contractor in Butters derived its immunity
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`not from the United States, but from the Kingdom of Saudi Arabia, which was immune
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`from suit under the FSIA. Id. at 465 (citing 28 U.S.C. § 1604). Unlike federal sovereign
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`immunity, foreign sovereign immunity under the FSIA is appealable under the collateral
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`order doctrine, Compania Mexicana de Aviacion, 859 F.2d at 1358, and is a complete
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`defense from suit.
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`In sum, it is not clear whether this case is closer to derivative federal sovereign
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`immunity (immunity from liability) or foreign sovereign immunity (immunity from suit). The
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`lack of clarity illustrates the hazard of opining on an issue that the Ninth Circuit has not
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`adopted, hence this court’s prior determination. However, it is plausible that, if the Ninth
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`Circuit were to adopt the Butters’ rule, the contractor immunity would be immunity from
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`suit because it derives from a foreign sovereign and not the federal government.
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`3. Whether the Court Retains Any Jurisdiction
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`Having determined that either of defendants’ sovereign immunity defenses could
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`provide immunity from suit, the court turns to plaintiffs’ arguments that, notwithstanding
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`such a finding, the court can still exercise jurisdiction. First, plaintiffs contend that even if
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`the immunity defenses asserted by defendants provide a right not to be tried, there is no
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`blanket rule that any and all discovery should be denied pending appeal. Opp. at 6.
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`They argue that courts have allowed discovery to proceed even where doing so imposed
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`some burdens of litigation on a defendant that otherwise has the right not to be tried. Id.
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`at 6–7.
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`Plaintiffs cite J.P. by & through Villanueva v. County of Alameda, 2018 WL
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`3845890, at *3 (N.D. Cal. Aug. 13, 2018), as an example where a court permitted
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`discovery to proceed because the prejudice to the plaintiff of an open-ended stay. J.P.
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`dealt with qualified immunity, which is immunity from liability, and not immunity from suit.
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`See id. (“[I]f the County Defendants are correct that they are immune from liability and the
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`Northern District of California
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 11 of 15
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`Ninth Circuit so finds, then, in fact, there will be no prejudice as the case will not be
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`allowed to proceed against them.”). Here, defendants have a plausible contention that, if
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`they prevail on appeal, they are immune from suit and the prejudice to them is entirely
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`different than the lack of prejudice in J.P.
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`Plaintiffs also cite Schering Corp. v. First DataBank Inc., 2007 WL 1747115, at *4
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`(N.D. Cal. June 18, 2007), where the district court found that, despite an interlocutory
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`appeal of a denial of an anti-SLAPP motion to strike, the court retained jurisdiction over
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`pretrial and case-management issues including discovery. The court recognized that
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`California law treated anti-SLAPP immunity as akin to substantive immunity from suit, id.
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`(citing Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)),6 but reasoned that “because
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`discovery and other pretrial matters are not relevant to the subject of the appeal—[the
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`defendant’s] claim of immunity under the anti-SLAPP statute—this Court retains
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`jurisdiction over all other matters.” In support of this conclusion, the Schering court cited
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`the Ninth Circuit’s opinion in United States v. Claiborne, 727 F.2d 842 (9th Cir. 1984).
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`There, the court determined that it was harmless error for a trial court to hear pretrial
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`motions even where the defendant raised a meritorious “right not to be tried” claim. Id. at
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`844. The Schering court acknowledged that the anti-SLAPP statute provided a “right not
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`to be dragged through the courts,” but determined that harm to the defendant in
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`complying with “pretrial procedures would be negligible or at least must be evaluated
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`matter by matter.” 2007 WL 1747115, at *4 (citation omitted).
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`The Schering court’s reasoning is not persuasive considering dicta from the
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`Supreme Court. In discussing qualified immunity, the Court in Mitchell noted that
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`motivating concerns in applying immunity were “not limited to liability for money
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`damages; they also include[d] ‘the general costs of subject officials to the risks of
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`6 After the Ninth Circuit’s decision in Batzel, the California legislature amended the anti-
`SLAPP law and “effectively stripped the right of immediate appealability from all cases in
`which the trial court determined a public interest exception applie[d].” Breazeale v. Victim
`Servs., Inc., 878 F.3d 759, 767 (9th Cir. 2017) (citing Cal. Civ. Proc. Code § 425.17(e)).
`This change in the law does not impact the Schering court’s reasoning at the time it
`issued its opinion.
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`Northern District of California
`United States District Court
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`trial . . . .” 472 U.S. at 526 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)).
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`“Indeed, Harlow emphasizes that even such pretrial matters as discovery are to be
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`avoided if possible, as ‘[i]nquiries of this kind can be peculiarly disruptive of effective
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`government.’” Id. (alteration in original) (quoting Harlow, 457 U.S. at 817). Thus, even in
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`cases involving immunity from liability, as opposed to immunity from suit, imposing
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`discovery on officials is to be avoided.
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`That concern is more acute in cases involving immunity from suit For example,
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`the Metcalf & Eddy court, examining Eleventh Amendment immunity, stated “the value to
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`the States of their Eleventh Amendment immunity, like the benefit conferred by qualified
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`immunity to individual officials, is for the most part lost as litigation proceeds past motion
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`practice.” 506 U.S. at 145 (footnote omitted) (emphasis added); see also Town of
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`Browning v. Sharp, 2015 WL 1246543, at *2 (D. Mont. Mar. 17, 2015) (retaining
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`jurisdiction but noting that the “case ha[d] not proceeded beyond motion practice, so the
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`value of Defendants’ sovereign immunity will not be lost even if the Ninth Circuit reverses
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`this Court’s decision”).
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`Finally, Claiborne, 727 F.2d at 851, upon which Schering relies, determined it was
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`harmless error for a district court to retain jurisdiction and decide pre-trial motions while a
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`double jeopardy collateral order appeal was pending. Neither Claiborne nor Schering
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`dealt with foreign sovereign immunity and their persuasiveness is limited.
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`Next, plaintiffs argue that defendants have the burden of establishing the factual
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`predicates for their immunity defenses and those claimed immunities require discovery in
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`order to make factual findings regarding NSO’s conduct. Opp. at 7. The Supreme Court
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`considered a similar argument in Metcalf & Eddy. There, the respondent argued that “a
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`distinction should be drawn between cases in which the determination of a State or state
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`agency’s claim to Eleventh Amendment immunity is bound up with factual complexities
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`whose resolution requires trial and cases in which it is not.” Metcalf & Eddy, 506 U.S. at
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`147. The Court rejected this argument, id., noting that the sovereignty inquiry would
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`likely not be fact intensive. The Court also cited with approval its reasoning in Mitchell,
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`12
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`Northern District of California
`United States District Court
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`Case 4:19-cv-07123-PJH Document 155 Filed 09/29/20 Page 13 of 15
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`see id., that the “question of immunity is separate from the merits of the underlying action
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`for purposes of the [collateral appeal doctrine], even though a reviewing court must
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`consider the plaintiff’s factual allegations in resolving the immunity issue,” Mitchell, 472
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`U.S. at 528–29.
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`Despite plaintiffs’ contention that there have been no factual findings,