Opinion

Nano Foundation, Ltd. v. David C. Silver

Court
District Court, C.D. California
Filed
Nov 13, 2019
Cited by
0 cases
Authority
More cited than 31.2%

The opinion

1|| RYAN M. LAPINE, ESQ. (Cal. Bar No. 239316)

ryan.lapine@diamondmccarthy.com

JOSHUA H. HERR, ESQ. (Cal. Bar No. 301775)

3|| Joshua. herr@diamondmccarthy.com

DIAMOND MCCARTHY LLP

4|| 333 South Hope Street, 18" Floor

Los Angeles, CA 90071

5|| Telephone: (424) 278-2335

6 Facsimile: (424) 278-2339

Attorneys for Plaintiffs NANO FOUNDATION, LTD. and

COLIN LEMAHIEU

8|| BRIDGET B. HIRSCH, ESQ. (Cal. Bar No. 257015)

bhirsch@andersonkill.com

ANDERSON KILL CALIFORNIA L.L-P.

10|| 39> South Grand Avenue

Los Angeles, CA 90071

11|| Telephone: (213) 943-1444

12|| STEPHEN D. PALLEY, ESQ. (pro hac vice motion forthcoming)

13 spalley@andersonkill.com

ANDERSON KILL L.L.P.

14|| 1717 Pennsylvania Ave., NW, Suite 200

Washington, DC 20006

15|| Telephone: (202) 416-6500

Facsimile: (202) 416-6555

16/| Attorneys for Defendant DAVID C. SILVER

18 UNITED STATES DISTRICT COURT

19 CENTRAL DISTRICT OF CALIFORNIA

20

21 NANO FOUNDATION, LTD., a New Case No. 2:19-cv-04237 MRW

York non-profit corporation; and

COLIN LeMAHIEU, an individual, STIPULATED PROTECTIVE

23 ORDER

Plaintiffs,

24 Check if submitted without material

vs modifications to MRW form

25

26|| DAVID C. SILVER, an individual,

27 Defendant.

28

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1. INTRODUCTION

2 1.1. PURPOSES AND LIMITATIONS

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

4|| proprietary, or private information for which special protection from public

5|| disclosure and from use for any purpose other than prosecuting this litigation may be

6|| warranted. Accordingly, the parties hereby stipulate to and petition the Court to

7\| enter the following Stipulated Protective Order. The parties acknowledge that this

8|| Order does not confer blanket protections on all disclosures or responses to discovery

9|| and that the protection it affords from public disclosure and use extends only to the

10|| limited information or items that are entitled to confidential treatment under the

applicable legal principles. The parties further acknowledge, as set forth in Section

12|| 12.3, below, that this Stipulated Protective Order does not entitle them to file

13]| confidential information under seal; Civil Local Rule 79-5 sets forth the procedures

14|| that must be followed and the standards that will be applied when a party seeks

permission from the court to file material under seal.

16 1.2. GOOD CAUSE STATEMENT

17 The claims in this case are based on alleged defamatory statements by

Defendant David Silver against Plaintiffs Colin LeMahieu and Nano Foundation

19|| related to both the nature Nano Foundation’s business and Mr. LeMahieu’s divorce.

20|| Without waiver of any right to obtain or object to such discovery, the parties note

that: Discovery already requested in this case includes, for example, private

financial records, tax returns and account information that may contain sensitive

23|| private information including social security numbers, confidential communications

that may contain trade secrets or other commercial communication, documents

submitted to federal law enforcement, private communications between a husband

26]| and wife, court filings related to Mr. LeMahieu’s divorce, and other sensitive

27|| documents for which there is good cause to designate confidential at least during the

28|| discovery process, if not longer. Cf. Oliner v. Kontrabecki, 745 F.3d 1024, 1026 (9th

Cir. 2014), There is a reasonable chance that the disclosure of some of such

2|| documents could cause embarrassment to the parties or reveal trade secrets, without

any corresponding public interest, and there is good cause to permit the parties to

designate certain material as confidential.

5|| 2. DEFINITIONS

6 2.1. Action: this pending federal law suit.

7 2.2. Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Order.

9 2.3. “CONFIDENTIAL” Information or Items: information (regardless of

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

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

12|| Good Cause Statement.

13 2.4. Counsel: Outside Counsel of Record and House Counsel (as well as

14/| their support staff).

15 2.5. Designating Party: a Party or Non-Party that designates information or

16|| items that it produces in disclosures or in responses to discovery as

“CONFIDENTIAL.”

18 2.6. Disclosure or Discovery Material: all items or information, regardless

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

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

21|| generated in disclosures or responses to discovery in this matter.

22 2.7. Expert: a person with specialized knowledge or experience in a matter

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

an expert witness or as a consultant in this Action.

25 2.8. House Counsel: attorneys who are employees of a party to this Action.

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

27\| counsel.

28

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

2\| other legal entity not named as a Party to this action.

3 2.10. Outside Counsel of Record: attorneys who are not employees of a party

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

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

6|| has appeared on behalf of that party, and includes support staff.

7 2.11. Party: any party to this Action, including all of its officers, directors,

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

9|| support staffs).

10 2.12. Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material ‘n this Action.

12 2.13. Professional Vendors: persons or entities that provide litigation support

13]| services (e.g., photocopying, videotaping, translating, preparing exhibits or

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

and their employees and subcontractors.

16 2.14. Protected Material: any Disclosure or Discovery Material that is

17|| designated as “CONFIDENTIAL.”

18 2.15. Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.

3. SCOPE i

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

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

23]| extracted from Protected Material; (2) all copies, excerpts, summaries, or

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

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

26 Any use of Protected Material at trial will be governed by the orders of the

27]| trial judge. This Order does not govern the use of Protected Material at trial.

28

1/4. DURATION

2 Even after final disposition of this litigation, the confidentiality obligations

imposed by this Order will remain in effect until a Designating Party agrees

4|| otherwise in writing or a court order otherwise directs. Final disposition will be

5|| deemed to be the later of (1) dismissal of all claims and defenses in this Action, with

or without prejudice; and (2) final judgment herein after the completion and

7|| exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

including the time limits for filing any motions or applications for extension of time

pursuant to applicable law.

10

5. | DESIGNATING PROTECTED MATERIAL

12 5.1. Exercise of Restraint and Care in Designating Material for Protection.

13|) Each Party or Non-Party that designates information or items for protection under

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

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

protection only those parts of material, documents, items, or oral or written

17|| communications that qualify so that other portions of the material, documents, items,

18|| or communications for which protection is not warranted are not swept unjustifiably

within the ambit of this Order.

20 Mass, indiscriminate, or routinized designations are prohibited. Designations

21)| that are shown to be clearly unjustified or that have been made for an improper

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

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

24!) Party to sanctions.

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

26|| designated for protection do not qualify for protection, that Designating Party must

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

28

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

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

3| stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

4!| under this Order must be clearly so designated before the material is disclosed or

produced.

6 Designation in conformity with this Order requires:

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

8|| documents, but excluding transcripts of depositions or other pretrial or trial

9|| proceedings), that the Producing Party affix at a minimum, the legend

10|| “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

11|) contains protected material. If only a portion or portions of the material on a page

qualifies for protection, the Producing Party also must clearly identify the protected

portion(s) (e.g., by making appropriate markings in the margins).

14 A Party or Non-Party that makes original documents available for

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

16|| indicated which documents it would like copied and produced. During the inspection

17|| and before the designation, all of the material made available for inspection will be

18]| deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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

20|} documents, or portions thereof, qualify for protection under this Order. Then, before

21/| producing the specified documents, the Producing Party must affix the

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

23|| portion or portions of the material on a page qualifies for protection, the Producing

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

25|| markings in the margins).

26 (b) for testimony given in depositions that the Designating Party identify

27|| the Disclosure or Discovery Material on the record, before the close of the deposition

28)| all protected testimony.

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

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

3)| exterior of the container or containers in which the information is stored the legend

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

protection, the Producing Party, to the extent practicable, will identify the protected

6] portion(s).

7 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent

8|| failure to designate qualified information or items does not, standing alone, waive the

9|| Designating Party’s right to secure protection under this Order for such material.

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

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

12|| Order,

13

14|16. © CHALLENGING CONFIDENTIALITY DESIGNATIONS

15 6.1. Timing of Challenges. Any Party or Non-Party may challenge a

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

17|| Scheduling Order.

18 6.2. Meet and Confer. The Challenging Party will initiate the dispute

19|| resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1

et seq.

21 6.3. The burden of persuasion in any such challenge proceeding will be on

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

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

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

25|| Party has waived or withdrawn the confidentiality designation, all parties will

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

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

challenge.

-

7, ACCESS TO AND USE OF PROTECTED MATERIAL

2 7.1. Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

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

8|| DISPOSITION).

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

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

authorized under this Order.

12 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

14|| Receiving Party may disclose any information or item designated

“CONFIDENTIAL” only to:

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

17|| as employees of said Outside Counsel of Record to whom it is reasonably necessary

18]| to disclose the information for this Action;

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

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

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

22|| disclosure is reasonably necessary for this Action and who have signed the

23]| “Acknowledgment and Agreement to Be Bound” (Exhibit A);

24 (d) the Court and its personnel;

25 (e) court reporters and their staff;

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

Vendors to whom disclosure is reasonably necessary for this Action and who have

28]| signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

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

3 (h) during their depositions, witnesses ,and attorneys for witnesses, in the

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

5|| requests that the witness sign the form attached as Exhibit A hereto; and (2) they will

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

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

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

9|| deposition testimony or exhibits to depositions that reveal Protected Material may be

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

permitted under this Stipulated Protective Order; and

12 (i) | any mediator or settlement officer, and their supporting personnel,

13|) mutually agreed upon by any of the parties engaged in settlement discussions.

14

15]| 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

16|| OTHER LITIGATION

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

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

19|| “CONFIDENTIAL,” that Party must:

20 (a) promptly notify in writing the Designating Party. Such notification will

21)| include a copy of the subpoena or court order;

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

23/| to issue in the other litigation that some or all of the material covered by the

subpoena or order is subject to this Protective Order. Such notification will include a

25|| copy of this Stipulated Protective Order; and

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

27|| by the Designating Party whose Protected Material may be affected.

28

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

2|| the subpoena or court order will not produce any information designated in this

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

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

5|| permission. The Designating Party will bear the burden and expense of seeking

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

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

8|| disobey a lawful directive from another court.

9

10/19, © ANON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION

12 (a) The terms of this Order are applicable to information produced by a

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

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

15|] remedies and relief provided by this Order. Nothing in these provisions should be

16|| construed as prohibiting a Non-Party from seeking additional protections.

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

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

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

20]| confidential information, then the Party will:

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

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

agreement with a Non-Party;

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

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

specific description of the information requested; and

27 (3) make the information requested available for inspection by the

28|| Non-Party, if requested.

Ww

l (c) Ifthe Non-Party fails to seek a protective order from this court within

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

3)| may produce the Non-Party’s confidential information responsive to the discovery

4/| request. If the Non-Party timely seeks a protective order, the Receiving Party will

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

6|/ confidentiality agreement with the Non-Party before a determination by the court.

Absent a court order to the contrary, the Non-Party will bear the burden and expense

8|| of seeking protectivii in this court of its Protected Material.

9

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

Agreement to Be Bound” that is attached hereto as Exhibit A.

19

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

21|| PROTECTED MATERIAL

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

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

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

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

may be established in an e-discovery order that provides for production without prior

privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

28/| parties reach an agreement on the effect of disclosure of a communication or

ne

1|| information covered by the attorney-client privilege or work product protection, the

2|| parties may incorpvu:ate their agreement in the stipulated protective order submitted

3}| to the court.

4

12. MISCELLANEOUS

6 12.1. Right to Further Relief. Nothing in this Order abridges the right of any

7\| person to seek its modification by the Court in the future.

8 12.2. Right to Assert Other Objections. By stipulating to the entry of this

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

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

11!) Stipulated Protectiyg,Order. Similarly, no Party waives any right to object on any

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

13 12.3. Filing Protected Material. A Party that seeks to file under seal any

14|| Protected Material must comply with Civil Local Rule 79-5. Protected Material may

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

16|| specific Protected Material at issue. If a Party's request to file Protected Material

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

in the public record unless otherwise instructed by the court.

19

20!) 13, FINAL DISPOSITION

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

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

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

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

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

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

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

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

14

1!) (by category, where appropriate) all the Protected Material that was returned or

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

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

4)! of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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

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

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

8] materials contain Protected Material. Any such archival copies that contain or

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

10] Section 4 (DURATION).

1]

12 14. Any willful violation of this Order may be punished by civil or criminal

contempt proceedings, financial or evidentiary sanctions, reference to disciplinary

14|| authorities, or other appropriate action at the discretion of the Court.

15|| IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

16

17|patep: _ I} /JX/ A014 d =.

18 Attorneys for Plaintiff

19 } z

20|| DATED: it | | Na [tr ok i C

7] Attorneys for Defendant

22

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

24

25|| DATED: November 13, 2019 MALE

26 HON. MICHAEL R. WILNER

a United States Magistrate Judge

28

13

STIPULATED PROTECTIVE ORDER

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, [full name], of

4 [full address], declare under penalty of perjury that I have read in its entirety and

> understand the Stipulated Protective Order that was issued by the United States

District Court for the Central District of California on [date] in the case of Nano

3 Foundation, Ltd. et al. v. David Silver. I agree to comply with and to be bound by

all the terms of this Stipulated Protective Order and I understand and acknowledge

that failure to so comply could expose me to sanctions and punishment in the nature

of contempt. I solemnly promise that I will not disclose in any manner any

i information or item that is subject to this Stipulated Protective Order to any person or

entity except in strict compliance with the provisions of this Order.

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

for the Central District of California for the purpose of enforcing the terms of this

i Stipulated Protective Order, even if such enforcement proceedings occur after

termination of this action. I hereby appoint [full

hk name| of [full address and

telephone number] as my California agent for service of process in connection with

this action or any proceedings related to enforcement of this Stipulated Protective

al Order.

Date:

City and State where signed:

Printed name:

95 Signature:

26

27

28

□□

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