First Citizens Bank and Trust Company v. Taipei Investments LLC

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10 UNITED STATES DISTRICT COURT

11 CENTRAL DISTRICT OF CALIFORNIA

12 WESTERN DIVISION

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14 FIRST CITIZENS BANK & TRUST Case No. 2:19-cv-07582-PSG-AFM

COMPANY, a North Carolina Hon. Magistrate Judge Alexander F.

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corporation, MacKinnon

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Plaintiff, DISCOVERY MATTER

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v.

18 [PROPOSED] STIPULATED

TAIPEI INVESTMENTS LLC, a PROTECTIVE ORDER

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California limited liability company;

20 SERGIO GARCIA-MUNGUIA, an

individual; PROMATE PRODUCE

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USA, INC., a California corporation; and

22 DOES 1-10, inclusive,

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Defendants.

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AND RELATED COUNTERCLAIMS.

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1 1. A. PURPOSES AND LIMITATIONS

2 Discovery in this action is likely to involve production of confidential,

3 proprietary or private information for which special protection from public

4 disclosure and from use for any purpose other than prosecuting this litigation may

5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

6 enter the following Stipulated Protective Order. The parties acknowledge that this

7 Order does not confer blanket protections on all disclosures or responses to

8 discovery and that the protection it affords from public disclosure and use extends

9 only to the limited information or items that are entitled to confidential treatment

10 under the applicable legal principles.1

11 This Stipulated Protective Order is based substantially on the model

12 protective order provided under Magistrate Judge Alexander F. MacKinnon’s

13 Procedures.

14 B. GOOD CAUSE STATEMENT

15 This action is likely to involve confidential bank account information and

16 other valuable commercial, financial, and/or proprietary information for which

17 special protection from public disclosure and from use for any purpose other than

18 prosecution of this action is warranted. Such confidential and proprietary materials

19 and information consist of, among other things, confidential business or financial

20 information, information regarding confidential business practices, or other

21 confidential commercial information (including information implicating privacy

22 rights of third parties), information otherwise generally unavailable to the public, or

23 which may be privileged or otherwise protected from disclosure under state or

24 federal statutes, court rules, case decisions, or common law. Accordingly, to

25 expedite the flow of information, to facilitate the prompt resolution of disputes over

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1 This Stipulated Protective Order is based substantially on the model protective

1 confidentiality of discovery materials, to adequately protect information the parties

2 are entitled to keep confidential, to ensure that the parties are permitted reasonable

3 necessary uses of such material in preparation for and in the conduct of trial, to

4 address their handling at the end of the litigation, and serve the ends of justice, a

5 protective order for such information is justified in this matter. It is the intent of the

6 parties that information will not be designated as confidential for tactical reasons

7 and that nothing be so designated without a good faith belief that it has been

8 maintained in a confidential, non-public manner, and there is good cause why it

9 should not be part of the public record of this case.

10 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

11 SEAL

12 The parties further acknowledge, as set forth in Section 12.3, below, that this

13 Stipulated Protective Order does not entitle them to file confidential information

14 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

15 and the standards that will be applied when a party seeks permission from the court

16 to file material under seal.

17 There is a strong presumption that the public has a right of access to judicial

18 proceedings and records in civil cases. In connection with non-dispositive motions,

19 good cause must be shown to support a filing under seal. See Kamakana v. City and

20 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

21 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,

22 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

23 require good cause showing), and a specific showing of good cause or compelling

24 reasons with proper evidentiary support and legal justification, must be made with

25 respect to Protected Material that a party seeks to file under seal. The parties’ mere

26 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

27 without the submission of competent evidence by declaration, establishing that the

1 material sought to be filed under seal qualifies as confidential, privileged, or

2 otherwise protectable—constitute good cause.

3 Further, if a party requests sealing related to a dispositive motion or trial, then

4 compelling reasons, not only good cause, for the sealing must be shown, and the

5 relief sought shall be narrowly tailored to serve the specific interest to be protected.

6 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For

7 each item or type of information, document, or thing sought to be filed or introduced

8 under seal in connection with a dispositive motion or trial, the party seeking

9 protection must articulate compelling reasons, supported by specific facts and legal

10 justification, for the requested sealing order. Again, competent evidence supporting

11 the application to file documents under seal must be provided by declaration.

12 Any document that is not confidential, privileged, or otherwise protectable in

13 its entirety will not be filed under seal if the confidential portions can be redacted.

14 If documents can be redacted, then a redacted version for public viewing, omitting

15 only the confidential, privileged, or otherwise protectable portions of the document,

16 shall be filed. Any application that seeks to file documents under seal in their

17 entirety should include an explanation of why redaction is not feasible.

18 2. DEFINITIONS

19 2.1 Action: this pending federal lawsuit.

20 2.2 Challenging Party: a Party or Non-Party that challenges the designation

21 of information or items under this Order.

22 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

23 how it is generated, stored or maintained) or tangible things that qualify for

24 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

25 the Good Cause Statement.

26 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

27 their support staff).

1 2.5 Designating Party: a Party or Non-Party that designates information or

2 items that it produces in disclosures or in responses to discovery as

3 “CONFIDENTIAL.”

4 2.6 Disclosure or Discovery Material: all items or information, regardless

5 of the medium or manner in which it is generated, stored, or maintained (including,

6 among other things, testimony, transcripts, and tangible things), that are produced or

7 generated in disclosures or responses to discovery in this matter.

8 2.7 Expert: a person with specialized knowledge or experience in a matter

9 pertinent to the litigation who has been retained by a Party or its counsel to serve as

10 an expert witness or as a consultant in this Action.

11 2.8 House Counsel: attorneys who are employees of a party to this Action.

12 House Counsel does not include Outside Counsel of Record or any other outside

13 counsel.

14 2.9 Non-Party: any natural person, partnership, corporation, association or

15 other legal entity not named as a Party to this action.

16 2.10 Outside Counsel of Record: attorneys who are not employees of a party

17 to this Action but are retained to represent or advise a party to this Action and have

18 appeared in this Action on behalf of that party or are affiliated with a law firm that

19 has appeared on behalf of that party and includes support staff.

20 2.11 Party: any party to this Action, including all of its officers, directors,

21 employees, consultants, retained experts, and Outside Counsel of Record (and their

22 support staffs).

23 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

24 Discovery Material in this Action.

25 2.13 Professional Vendors: persons or entities that provide litigation support

26 services (e.g., photocopying, videotaping, translating, preparing exhibits or

27 demonstrations, and organizing, storing, or retrieving data in any form or medium)

1 2.14 Protected Material: any Disclosure or Discovery Material that is

2 designated as “CONFIDENTIAL.”

3 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

4 from a Producing Party.

5 3. SCOPE

6 The protections conferred by this Stipulation and Order cover not only

7 Protected Material (as defined above), but also (1) any information copied or

8 extracted from Protected Material; (2) all copies, excerpts, summaries, or

9 compilations of Protected Material; and (3) any testimony, conversations, or

10 presentations by Parties or their Counsel that might reveal Protected Material.

11 Any use of Protected Material at trial shall be governed by the orders of the

12 trial judge. This Order does not govern the use of Protected Material at trial.

13 4. DURATION

14 Once a case proceeds to trial, information that was designated as

15 CONFIDENTIAL or maintained pursuant to this protective order used or introduced

16 as an exhibit at trial becomes public and will be presumptively available to all

17 members of the public, including the press, unless compelling reasons supported by

18 specific factual findings to proceed otherwise are made to the trial judge in advance

19 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

20 showing for sealing documents produced in discovery from “compelling reasons”

21 standard when merits-related documents are part of court record). Accordingly, the

22 terms of this protective order do not extend beyond the commencement of the trial.

23 5. DESIGNATING PROTECTED MATERIAL

24 5.1 Exercise of Restraint and Care in Designating Material for Protection.

25 Each Party or Non-Party that designates information or items for protection under

26 this Order must take care to limit any such designation to specific material that

27 qualifies under the appropriate standards. The Designating Party must designate for

1 communications that qualify so that other portions of the material, documents,

2 items or communications for which protection is not warranted are not swept

3 unjustifiably within the ambit of this Order.

4 Mass, indiscriminate or routinized designations are prohibited. Designations

5 that are shown to be clearly unjustified or that have been made for an improper

6 purpose (e.g., to unnecessarily encumber the case development process or to impose

7 unnecessary expenses and burdens on other parties) may expose the Designating

8 Party to sanctions.

9 If it comes to a Designating Party’s attention that information or items that it

10 designated for protection do not qualify for protection, that Designating Party must

11 promptly notify all other Parties that it is withdrawing the inapplicable designation.

12 5.2 Manner and Timing of Designations. Except as otherwise provided in

13 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

14 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

15 under this Order must be clearly so designated before the material is disclosed or

16 produced.

17 Designation in conformity with this Order requires:

18 (a) for information in documentary form (e.g., paper or electronic documents,

19 but excluding transcripts of depositions or other pretrial or trial proceedings), that

20 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

21 “CONFIDENTIAL legend”), to each page that contains protected material. If only a

22 portion of the material on a page qualifies for protection, the Producing Party also

23 must clearly identify the protected portion(s) (e.g., by making appropriate markings

24 in the margins).

25 A Party or Non-Party that makes original documents available for inspection

26 need not designate them for protection until after the inspecting Party has indicated

27 which documents it would like copied and produced. During the inspection and

1 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

2 documents it wants copied and produced, the Producing Party must determine which

3 documents, or portions thereof, qualify for protection under this Order. Then,

4 before producing the specified documents, the Producing Party must affix the

5 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

6 portion of the material on a page qualifies for protection, the Producing Party also

7 must clearly identify the protected portion(s) (e.g., by making appropriate markings

8 in the margins).

9 (b) for testimony given in depositions that the Designating Party identifies the

10 Disclosure or Discovery Material on the record, before the close of the deposition all

11 protected testimony.

12 (c) for information produced in some form other than documentary and for

13 any other tangible items, that the Producing Party affix in a prominent place on the

14 exterior of the container or containers in which the information is stored the legend

15 “CONFIDENTIAL.” If only a portion or portions of the information warrants

16 protection, the Producing Party, to the extent practicable, shall identify the

17 protected portion(s).

18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

19 failure to designate qualified information or items does not, standing alone, waive

20 the Designating Party’s right to secure protection under this Order for such material.

21 Upon timely correction of a designation, the Receiving Party must make reasonable

22 efforts to assure that the material is treated in accordance with the provisions of this

23 Order.

24 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

25 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

26 designation of confidentiality at any time that is consistent with the Court’s

27 Scheduling Order.

1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process under Local Rule 37-1 et seq.

3 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

4 joint stipulation pursuant to Local Rule 37-2.

5 6.4 The burden of persuasion in any such challenge proceeding shall be on

6 the Designating Party. Frivolous challenges, and those made for an improper

7 purpose (e.g., to harass or impose unnecessary expenses and burdens on other

8 parties) may expose the Challenging Party to sanctions. Unless the Designating

9 Party has waived or withdrawn the confidentiality designation, all parties shall

10 continue to afford the material in question the level of protection to which it is

11 entitled under the Producing Party’s designation until the Court rules on the

12 challenge.

13 7. ACCESS TO AND USE OF PROTECTED MATERIAL

14 7.1 Basic Principles. A Receiving Party may use Protected Material that is

15 disclosed or produced by another Party or by a Non-Party in connection with this

16 Action only for prosecuting, defending or attempting to settle this Action. Such

17 Protected Material may be disclosed only to the categories of persons and under the

18 conditions described in this Order. When the Action has been terminated, a

19 Receiving Party must comply with the provisions of section 13 below (FINAL

20 DISPOSITION).

21 Protected Material must be stored and maintained by a Receiving Party at a

22 location and in a secure manner that ensures that access is limited to the persons

23 authorized under this Order.

24 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

25 otherwise ordered by the court or permitted in writing by the Designating Party, a

26 Receiving Party may disclose any information or item designated

27 “CONFIDENTIAL” only to:

1 (a) the Receiving Party’s Outside Counsel of Record in this Action,

2 as well as employees of said Outside Counsel of Record to whom it is reasonably

3 necessary to disclose the information for this Action;

4 (b) the officers, directors, and employees (including House Counsel)

5 of the Receiving Party to whom disclosure is reasonably necessary for this Action;

6 (c) Experts (as defined in this Order) of the Receiving Party to

7 whom disclosure is reasonably necessary for this Action and who have signed the

8 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

9 (d) the court and its personnel;

10 (e) court reporters and their staff;

11 (f) professional jury or trial consultants, mock jurors, and

12 Professional Vendors to whom disclosure is reasonably necessary for this Action

13 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

14 A);

15 (g) the author or recipient of a document containing the information

16 or a custodian or other person who otherwise possessed or knew the information;

17 (h) during their depositions, witnesses, and attorneys for witnesses,

18 in the Action to whom disclosure is reasonably necessary provided: (1) the deposing

19 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)

20 they will not be permitted to keep any confidential information unless they sign the

21 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

22 agreed by the Designating Party or ordered by the court. Pages of transcribed

23 deposition testimony or exhibits to depositions that reveal Protected Material may

24 be separately bound by the court reporter and may not be disclosed to anyone except

25 as permitted under this Stipulated Protective Order; and

26 (i) any mediator or settlement officer, and their supporting

27 personnel, mutually agreed upon by any of the parties engaged in settlement

1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2 IN OTHER LITIGATION

3 If a Party is served with a subpoena or a court order issued in other litigation

4 that compels disclosure of any information or items designated in this Action as

5 “CONFIDENTIAL,” that Party must:

6 (a) promptly notify in writing the Designating Party. Such notification shall

7 include a copy of the subpoena or court order;

8 (b) promptly notify in writing the party who caused the subpoena or order to

9 issue in the other litigation that some or all of the material covered by the subpoena

10 or order is subject to this Protective Order. Such notification shall include a copy of

11 this Stipulated Protective Order; and

12 (c) cooperate with respect to all reasonable procedures sought to be pursued

13 by the Designating Party whose Protected Material may be affected.

14 If the Designating Party timely seeks a protective order, the Party served with

15 the subpoena or court order shall not produce any information designated in this

16 action as “CONFIDENTIAL” before a determination by the court from which the

17 subpoena or order issued, unless the Party has obtained the Designating Party’s

18 permission. The Designating Party shall bear the burden and expense of seeking

19 protection in that court of its confidential material and nothing in these provisions

20 should be construed as authorizing or encouraging a Receiving Party in this Action

21 to disobey a lawful directive from another court.

22 9. A NON-PARTY’SPROTECTED MATERIAL SOUGHT TO BE

23 PRODUCED IN THIS LITIGATION

24 (a) The terms of this Order are applicable to information produced by a Non-

25 Party in this Action and designated as “CONFIDENTIAL.” Such information

26 produced by Non-Parties in connection with this litigation is protected by the

27 remedies and relief provided by this Order. Nothing in these provisions should be

1 (b) In the event that a Party is required, by a valid discovery request, to

2 produce a Non-Party’s confidential information in its possession, and the Party is

3 subject to an agreement with the Non-Party not to produce the Non-Party’s

4 confidential information, then the Party shall:

5 (1) promptly notify in writing the Requesting Party and the Non-

6 Party that some or all of the information requested is subject to a confidentiality

7 agreement with a Non-Party;

8 (2) promptly provide the Non-Party with a copy of the Stipulated

9 Protective Order in this Action, the relevant discovery request(s), and a reasonably

10 specific description of the information requested; and (3) make the information

11 requested available for inspection by the Non-Party, if requested.

12 (c) If the Non-Party fails to seek a protective order from this court within 14

13 days of receiving the notice and accompanying information, the Receiving Party

14 may produce the Non-Party’s confidential information responsive to the discovery

15 request. If the Non-Party timely seeks a protective order, the Receiving Party shall

16 not produce any information in its possession or control that is subject to the

17 confidentiality agreement with the Non-Party before a determination by the court.

18 Absent a court order to the contrary, the Non-Party shall bear the burden and

19 expense of seeking protection in this court of its Protected Material.

20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

22 Protected Material to any person or in any circumstance not authorized under this

23 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

24 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

25 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

26 persons to whom unauthorized disclosures were made of all the terms of this Order,

27 and (d) request such person or persons to execute the “Acknowledgment and

1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

2 PROTECTED MATERIAL

3 When a Producing Party gives notice to Receiving Parties that certain

4 inadvertently produced material is subject to a claim of privilege or other protection,

5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever

7 procedure may be established in an e-discovery order that provides for production

8 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

9 (e), insofar as the parties reach an agreement on the effect of disclosure of a

10 communication or information covered by the attorney-client privilege or work

11 product protection, the parties may incorporate their agreement in the stipulated

12 protective order submitted to the court.

13 12. MISCELLANEOUS

14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

15 person to seek its modification by the Court in the future.

16 12.2 Right to Assert Other Objections. By stipulating to the entry of this

17 Protective Order, no Party waives any right it otherwise would have to object to

18 disclosing or producing any information or item on any ground not addressed in this

19 Stipulated Protective Order. Similarly, no Party waives any right to object on any

20 ground to use in evidence of any of the material covered by this Protective Order.

21 12.3 Filing Protected Material. A Party that seeks to file under seal any

22 Protected Material must comply with Local Civil Rule 79-5. Protected Material

23 may only be filed under seal pursuant to a court order authorizing the sealing of the

24 specific Protected Material at issue. If a Party’s request to file Protected Material

25 under seal is denied by the court, then the Receiving Party may file the information

26 in the public record unless otherwise instructed by the court.

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1 ||/13. FINAL DISPOSITION

2 After the final disposition of this Action, as defined in paragraph 4, within 60

3 || days of a written request by the Designating Party, each Receiving Party must return

4 || all Protected Material to the Producing Party or destroy such material. As used in

5 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

6 ||summaries, and any other format reproducing or capturing any of the Protected

7 || Material. Whether the Protected Material is returned or destroyed, the Receiving

8 || Party must submit a written certification to the Producing Party (and, if not the same

9 || person or entity, to the Designating Party) by the 60-day deadline that (1) identifies

10 || (by category, where appropriate) all the Protected Material that was returned or

11 || destroyed and (2) affirms that the Receiving Party has not retained any copies,

12 || abstracts, compilations, summaries or any other format reproducing or capturing any

13 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to

14 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

15 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

16 || reports, attorney work product, and consultant and expert work product, even if such

17 || materials contain Protected Material. Any such archival copies that contain or

18 || constitute Protected Material remain subject to this Protective Order as set forth in

19 ||Section 4 (DURATION).

20 }}14. VIOLATION

21 Any violation of this Order may be punished by appropriate measures

22 |}including, without limitation, contempt proceedings and/or monetary sanctions.

23 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

Cty Me k——

25 || Dated: 1/29/2020

6 Alexander F, MacKinnon

United States Magistrate Judge

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1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, [print or type full name], of

4 [print or type full address], declare under penalty of

5 perjury that I have read in its entirety and understand the Stipulated Protective Order

6 that was issued by the United States District Court for the Central District of

7 California on [date] in the case of First Citizens

8 Bank & Trust Company v. Taipei Investments, LLC, et al., Case No. 2:19-cv-07582-

9 PSG-AFM.

10 I agree to comply with and to be bound by all the terms of this Stipulated

11 Protective Order and I understand and acknowledge that failure to so comply could

12 expose me to sanctions and punishment in the nature of contempt. I solemnly

13 promise that I will not disclose in any manner any information or item that is subject

14 to this Stipulated Protective Order to any person or entity except in strict compliance

15 with the provisions of this Order.

16 I further agree to submit to the jurisdiction of the United States District Court

17 for the Central District of California for enforcing the terms of this Stipulated

18 Protective Order, even if such enforcement proceedings occur after termination of

19 this action.

20 I hereby appoint [print or type full name] of

21 [print or type full address and telephone number] as my

22 California agent for service of process in connection with this action or any

23 proceedings related to enforcement of this Stipulated Protective Order.

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25 Date:

26 City and State where sworn and signed:

27 Printed name:

28 Signature: