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.
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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.
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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
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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
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