distinguishing “good cause” 5 showing for sealing documents produced in discovery from “compelling reasons” 6 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 5 showing for sealing documents produced in discovery from “compelling reasons” 6 standard when merits-related documents are part of court record
- even stipulated protective orders 26 require good cause showing
Written by the judges who cited it.
The opinion
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 1 of 20 Page ID #:761
MORGAN, LEWIS & BOCKIUS LLP UNITED STATES SECURITIES
Joseph E. Floren, Bar No. 168292 AND EXCHANGE COMMISSION
1 joseph.floren@morganlewis.com
One Market Street Ariella O. Guardi (pro hac vice)
2 Spear Street Tower guardia@sec.gov
San Francisco, CA 94105-1596 Charles J. Kerstetter (pro hac vice)
3 Telephone: (415) 442-1391 kerstetterc@sec.gov
Fax: (213) 612-2501 Jonathan A. Epstein (pro hac vice)
4 epsteinjo@sec.gov
MORGAN, LEWIS & BOCKIUS LLP 175 West Jackson Blvd., Suite 1450
5 G. Jeffrey Boujoukos (pro hac vice) Chicago, Illinois 60604
jeff.boujoukos@morganlewis.com Telephone: (312) 353-7390
6 1701 Market Street Facsimile: (312) 353-7398
Philadelphia, PA 19103-2921
Donald W. Searles (Cal. Bar No.
7 Telephone: (215) 963-5000
135705)
Fax: (215) 963-5001 searlesd@sec.gov
8
444 S. Flower Street, Suite 900
MORGAN, LEWIS & BOCKIUS LLP
Los Angeles, California 90071
9 Jason S. Pinney (pro hac vice)
Telephone: (323) 965-3998
jason.pinney@morganlewis.com
Facsimile: (213) 443-1904
10 Andrew M. Buttaro (pro hac vice)
andrew.buttaro@morganlewis.com
11 One Federal Street
Attorneys for Plaintiff United States
Boston, MA 02110-1726
Securities and Exchange Commission
12 Telephone: (617) 341-7700
Fax: (617) 341-7701
13
Attorneys for Defendant
14 WESTERN INTERNATIONAL
SECURITIES, INC.
15
MURPHY COOKE LLP
16 PATRICK T. MURPHY, #178189
(patrick@murphycooke.com)
17 CHRISTOPHER COOKE, #142342
(ccooke@murphycooke.com)
18 533 Airport Blvd., Suite 400
Burlingame, CA 94010
19 Tel: (650) 401-2220
20 MARKUN ZUSMAN & COMPTON LLP
JEFFREY K. COMPTON,#142969
21 (jcompton@mzclaw.com)
NATHAN SMITH, #279124
22 (nsmith@mzclaw.com)
DAVID J. SHINDER, #323499
23 (dshinder@mzclaw.com)
17383 W. Sunset Blvd., Suite A-380
24 Pacific Palisades, CA 90272
Tel: (310) 454-5900
25
Attorneys for Defendants
26 NANCY COLE, PATRICK EGAN,
ANDY GITIPITYAPON, STEVEN
27 GRAHAM, AND THOMAS SWAN
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-cv-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 2 of 20 Page ID #:762
1 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
2
3
4 UNITED STATES SECURITIES AND Case No. 2:22-cv-04119-ODW-AFM
EXCHANGE COMMISSION,
5 Judge Otis D. Wright, II
Plaintiff, Magistrate Alexander F. MacKinnon
6
v.
7
WESTERN INTERNATIONAL [PROPOSED] STIPULATED
8 SECURITIES, INC., NANCY COLE, PROTECTIVE ORDER1
PATRICK EGAN, ANDY
9 GITIPITYAPON, STEVEN GRAHAM,
and THOMAS SWAN,
10
Defendants.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
1 This Stipulated Protective Order is based substantially on the model protective
28 order provided under Magistrate Judge Alexander F. MacKinnon’s Procedures.
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 2 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 3 of 20 Page ID #:763
1
1.
2
A. 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, Plaintiff United States Securities and Exchange
7
Commission (“SEC”), Defendants Western International Securities, Inc. (“WIS”),
8
Nancy Cole, Patrick Egan, Andy Gitipityapon, Steven Graham, and Thomas Swan
9
(“Individual Defendants” and collectively, the “Parties”) hereby stipulate to and
10
petition the court to enter the following Stipulated Protective Order (“Order”). The
11
Parties acknowledge that this Order does not confer blanket protections on all
12
disclosures or responses to discovery and that the protection it affords from public
13
disclosure and use extends only to the limited information or items that are entitled
14
to confidential treatment under the applicable legal principles.
15
16
B. GOOD CAUSE STATEMENT
17
This action is likely to involve trade secrets, customer and pricing lists and
18
other valuable research, development, commercial, financial, technical and/or
19
proprietary information for which special protection from public disclosure and from
20
use for any purpose other than prosecution of this action is warranted. Such
21
confidential and proprietary materials and information consist of, among other
22
things, confidential business or financial information, information regarding
23
confidential business practices, or other confidential research, development, or
24
commercial information (including information implicating privacy rights of third
25
26
27
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-cv-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 4 of 20 Page ID #:764
1
parties), information otherwise generally unavailable to the public, or which may be
2
privileged or otherwise protected from disclosure under state or federal statutes, court
3
rules, case decisions, or common law. Accordingly, to expedite the flow of
4
information, to facilitate the prompt resolution of disputes over confidentiality of
5
discovery materials, to adequately protect information the parties are entitled to keep
6
confidential, to ensure that the parties are permitted reasonable necessary uses of
7
such material in preparation for and in the conduct of trial, to address their handling
8
at the end of the litigation, and serve the ends of justice, a protective order for such
9
information is justified in this matter. It is the intent of the parties that information
10
will not be designated as confidential for tactical reasons and that nothing be so
11
designated without a good faith belief that it has been maintained in a confidential,
12
non-public manner, and there is good cause why it should not be part of the public
13
record of this case.
14
15
C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
16
The Parties further acknowledge, as set forth in Section 13.3, below, that this
17
Order does not entitle them to file confidential information under seal; Local Civil
18
Rule 79-5 sets forth the procedures that must be followed and the standards that will
19
be applied when a Party seeks permission from the court to file material under seal.
20
There is a strong presumption that the public has a right of access to judicial
21
proceedings and records in civil cases. In connection with non-dispositive motions,
22
good cause must be shown to support a filing under seal. See Kamakana v. City and
23
County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
24
Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
25
Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
26
require good cause showing), and a specific showing of good cause or compelling
27
reasons with proper evidentiary support and legal justification, must be made with
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 4 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 5 of 20 Page ID #:765
1
respect to Protected Material that a party seeks to file under seal. The parties’ mere
2
designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
3
without the submission of competent evidence by declaration, establishing that the
4
material sought to be filed under seal qualifies as confidential, privileged, or
5
otherwise protectable—constitute good cause.
6
Further, if a party requests sealing related to a dispositive motion or trial, then
7
compelling reasons, not only good cause, for the sealing must be shown, and the
8
relief sought shall be narrowly tailored to serve the specific interest to be protected.
9
See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each
10
item or type of information, document, or thing sought to be filed or introduced under
11
seal in connection with a dispositive motion or trial, the party seeking protection must
12
articulate compelling reasons, supported by specific facts and legal justification, for
13
the requested sealing order. Again, competent evidence supporting the application to
14
file documents under seal must be provided by declaration.
15
Any document that is not confidential, privileged, or otherwise protectable in
16
its entirety will not be filed under seal if the confidential portions can be redacted. If
17
documents can be redacted, then a redacted version for public viewing, omitting only
18
the confidential, privileged, or otherwise protectable portions of the document, shall
19
be filed. Any application that seeks to file documents under seal in their entirety
20
should include an explanation of why redaction is not feasible.
21
2. DEFINITIONS
22
2.1 Action: the civil enforcement action captioned SEC v. Western Int'l
23
Securities, Inc., et al., Case No. 2:22-cv-04119-ODW-AFM (C.D. Cal.).
24
2.2 Challenging Party: a Party or Non-Party that challenges the designation
25
of information or items under this Order.
26
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
27
how it is generated, stored or maintained) or tangible things that qualify for protection
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 5 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 6 of 20 Page ID #:766
1
under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
2
Cause Statement.
3
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
4
their support staff).
5
2.5 Designating Party: a Party or Non-Party that designates information or
6
items that it produces in disclosures or in responses to discovery as
7
“CONFIDENTIAL.”
8
2.6 Disclosure or Discovery Material: all items or information, regardless
9
of the medium or manner in which it is generated, stored, or maintained (including,
10
among other things, testimony, transcripts, and tangible things), that are produced or
11
generated in disclosures or responses to discovery in this matter, as well as all
12
documents or information that were produced or generated by WIS or the Individual
13
Defendants in connection with the SEC investigation captioned In the Matter of
14
GWG Holdings, Inc. (C-8693) (“Investigation Material”).)
15
2.7 Expert: a person with specialized knowledge or experience in a matter
16
pertinent to the litigation who has been retained by a Party or its counsel to serve as
17
an expert witness or as a consultant in this Action.
18
2.8 House Counsel: attorneys who are employees of a party to this Action.
19
House Counsel does not include Outside Counsel of Record or any other outside
20
counsel.
21
2.9 Non-Party: any natural person, partnership, corporation, association, or
22
other legal entity not named as a Party to this Action.
23
2.10 Outside Counsel of Record: attorneys who are not employees of a party
24
to this Action but are retained to represent or advise a party to this Action and have
25
appeared in this Action on behalf of that party or are affiliated with a law firm that
26
has appeared on behalf of that party, and includes support staff.
27
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 6 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 7 of 20 Page ID #:767
1
2.11 Party: any Party to this Action, including all of its officers, directors,
2
employees, consultants, retained experts, Commissioners, and Counsel of Record
3
(and their support staffs).
4
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
5
Discovery Material in this Action.
6
2.13 Professional Vendors: persons or entities that provide litigation support
7
services (e.g., photocopying, videotaping, translating, preparing exhibits or
8
demonstrations, and organizing, storing, or retrieving data in any form or medium)
9
and their employees and subcontractors.
10
2.14 Protected Material: any Disclosure or Discovery Material that is
11
designated as “CONFIDENTIAL.”
12
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
13
from a Producing Party.
14
3. SCOPE
15
The protections conferred by this Stipulation and Order cover not only
16
Protected Material (as defined above), but also (1) any information copied or
17
extracted from Protected Material; (2) all copies, excerpts, summaries, or
18
compilations of Protected Material; and (3) any testimony, conversations, or
19
presentations by Parties or their Counsel that might reveal Protected Material.
20
Nothing in this Order shall be construed to limit any Producing Party’s use or
21
disclosure, outside the context of this litigation, of its own produced documents or
22
information that are subject to this Order.
23
Any use of Protected Material at trial shall be governed by the orders of the
24
trial judge. This Order does not govern the use of Protected Material at trial.
25
4. DURATION
26
Once a case proceeds to trial, information that was designated as
27
CONFIDENTIAL or maintained pursuant to this protective order used or introduced
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 7 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 8 of 20 Page ID #:768
1
as an exhibit at trial becomes public and will be presumptively available to all
2
members of the public, including the press, unless compelling reasons supported by
3
specific factual findings to proceed otherwise are made to the trial judge in advance
4
of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
5
showing for sealing documents produced in discovery from “compelling reasons”
6
standard when merits-related documents are part of court record). Accordingly, the
7
terms of this protective order do not extend beyond the commencement of the trial.
8
5. DESIGNATING PROTECTED MATERIAL
9
5.1 Confidential Information. A Party or Non-Party shall designate as
10
CONFIDENTIAL only such information that the Designating Party in good faith
11
believes in fact is confidential. Information and documents that may be designated
12
as CONFIDENTIAL include, but are not limited to, personal identifying information,
13
personal information that is protected by law, non-public information related to
14
criminal or regulatory matters, and other sensitive information that, if not restricted
15
as set forth in this order, may subject persons to potential injury or liability.
16
5.2 Non-Confidential Information. CONFIDENTIAL information shall
17
NOT include information that (a) is in the public domain at the time of disclosures,
18
as evidenced by a written document; (b) becomes part of the public domain through
19
no fault of the recipient, as evidenced by a written document; (c) the receiving party
20
can show by written document was in its rightful and lawful possession at the time
21
of disclosure; (d) lawfully comes into the recipient’s possession subsequent to the
22
time of disclosure from another source without restriction as to disclosure, provided
23
such third party as the right to make the disclosure to the receiving party.
24
5.3 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. Mass, indiscriminate, or routinized
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 8 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 9 of 20 Page ID #:769
1
designations are prohibited. If it comes to a Designating Party’s attention that
2
information or items that it designated for protection do not qualify for protection,
3
that Designating Party must promptly notify all other Parties that it is withdrawing
4
the inapplicable designation.
5
5.4 Manner and Timing of Designations. Except as otherwise provided in
6
this Order (see, e.g., section 5.5 below), or as otherwise stipulated or ordered,
7
Disclosure or Discovery Material that qualifies for protection under this Order must
8
be clearly so designated before the material is disclosed or produced, except for the
9
Investigation Material, which can be designated at a later date.
10
Designation in conformity with this Order requires:
11
(a) For information in documentary form (e.g., paper or electronic
12
documents, but excluding transcripts of depositions or other pretrial or trial
13
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each
14
page that contains protected material.
15
(b) for testimony given in depositions or in other pretrial or trial
16
proceedings, that the Designating Party identifies all protected testimony.
17
(c) for information produced in some form other than documentary and for
18
any other tangible items, that the Producing Party affix in a prominent place on the
19
exterior of the container or containers in which the information is stored the legend
20
“CONFIDENTIAL.”
21
5.5 Inadvertent Failures to Designate. If timely corrected, an inadvertent
22
failure to designate qualified information or items does not, standing alone, waive
23
the Designating Party’s right to secure protection under this Order for such material.
24
Upon timely correction of a designation, the Receiving Party must make reasonable
25
efforts to assure that the material is treated in accordance with the provisions of this
26
Order.
27
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 9 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 10 of 20 Page ID #:770
1
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
2
designation of confidentiality at any time that is consistent with the Court’s
3
Scheduling Order. Unless a prompt challenge to a Designating Party’s confidentiality
4
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary
5
economic burdens, or a significant disruption or delay of the Action, a Party does not
6
waive its right to challenge a confidentiality designation by electing not to mount a
7
challenge promptly after the original designation is disclosed.
8
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
9
resolution process under Local Rule 37-1 et seq.
10
6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
11
joint stipulation pursuant to Local Rule 37-2.
12
6.4 The burden of persuasion in any such challenge proceeding shall be on
13
the Designating Party. Frivolous challenges, and those made for an improper purpose
14
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
15
expose the Challenging Party to sanctions. Unless the Designating Party has waived
16
or withdrawn the confidentiality designation, all parties shall continue to afford the
17
material in question the level of protection to which it is entitled under the Producing
18
Party’s designation until the Court rules on the challenge.
19
7. ACCESS TO AND USE OF PROTECTED MATERIAL
20
7.1 Basic Principles. A Receiving Party may use Protected Material that is
21
disclosed or produced by another Party or by a Non-Party in connection with this
22
Action only for prosecuting, defending, or attempting to settle this Action. Such
23
Protected Material may be disclosed only to the categories of persons and under the
24
conditions described in this Order. When the Action has been terminated, a Receiving
25
Party must comply with the provisions of section 14 below (FINAL DISPOSITION).
26
27
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 10 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 11 of 20 Page ID #:771
1
Protected Material must be stored and maintained by a Receiving Party at a
2
location and in a secure manner that ensures that access is limited to the persons
3
authorized under this Order.
4
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
5
otherwise ordered by the court, permitted by law, necessary to comply with the order
6
of a court of competent jurisdiction, permitted in writing by the Designating Party,
7
or otherwise authorized herein, a Receiving Party may disclose any information or
8
item designated “CONFIDENTIAL” only to:
9
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
10
as employees of said Outside Counsel of Record to whom it is reasonably necessary
11
to disclose the information for this Action;
12
(b) the SEC personnel and Commissioners to whom disclosure is
13
reasonably necessary for this Action;
14
(c) the officers, directors, employees (including House Counsel) of the
15
Receiving Party to whom disclosure is reasonably necessary for this Action;
16
(d) Experts (as defined in this Order) of the Receiving Party to whom
17
disclosure is reasonably necessary for this Action and who have signed the
18
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
19
(e) the court and its personnel;
20
(f) court reporters and their staff;
21
(g) professional jury or trial consultants, mock jurors, and Professional
22
Vendors to whom disclosure is reasonably necessary for this Action and who have
23
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);;
24
(h) the author or recipient of a document containing the information or a
25
custodian or other person who otherwise possessed or knew the information;
26
(i) during their depositions, witnesses, and attorneys for witnesses, in the
27
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 11 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 12 of 20 Page ID #:772
1
requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
2
not be permitted to keep any confidential information unless they sign the
3
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
4
agreed by the Designating Party or ordered by the court. Pages of transcribed
5
deposition testimony or exhibits to depositions that reveal Protected Material may be
6
separately bound by the court reporter and may not be disclosed to anyone except as
7
permitted under this Stipulated Protective Order;
8
(j) any mediator or settlement officer, and their supporting personnel,
9
mutually agreed upon by any of the parties engaged in settlement discussions; and
10
(k) any person who is called, or whom counsel for a Party in good faith
11
believes may be called, to testify at trial in this Action and who have signed the
12
“Acknowledgment and Agreement to Be Bound” (Exhibit A).
13
8. SEC USES OF PROTECTED MATERIAL
14
Notwithstanding anything in this Order to the contrary, this Order does not:
15
(a) apply to any documents, testimony, or other information produced to
16
or received by the SEC during its pre-filing investigation, including documents
17
previously marked as “CONFIDENTIAL” or “CONFIDENTIAL — FOIA
18
EXEMPT,” unless (i) the SEC now designates the information as
19
CONFIDENTIAL under this Order, or (ii) the producing party now designates
20
material they provided to the SEC in the pre-filing investigation as
21
CONFIDENTIAL under this Order;
22
(b) limit or restrict the retention, use, or disclosure of CONFIDENTIAL
23
information for any of the “Routine Uses of Information” identified in SEC Form
24
1662 (“Supplemental Information for Persons Requested to Supply Information
25
Voluntarily or Directed to Supply Information Pursuant to a Commission
26
Subpoena”), or as required for law enforcement activities or to otherwise regulate,
27
administer, or enforce the federal securities laws; or
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 12 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 13 of 20 Page ID #:773
1
(c) limit or restrict the retention, use, or disclosure of CONFIDENTIAL
2
information to the extent the SEC or its staff determines that such retention, use, or
3
disclosure is required by the Freedom of Information Act, 5 U.S.C. § 552, et seq.,
4
or to fulfill the SEC’s recordkeeping, governmental reporting, or archival
5
obligations.
6
9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
7
IN OTHER LITIGATION
8
If a Party is served with a subpoena or a court order issued in other litigation
9
that compels disclosure of any information or items designated in this Action as
10
“CONFIDENTIAL,” that Party must:
11
(a) promptly notify in writing the Designating Party. Such notification shall
12
include a copy of the subpoena or court order;
13
(b) promptly notify in writing the party who caused the subpoena or order
14
to issue in the other litigation that some or all of the material covered by the subpoena
15
or order is subject to this Protective Order. Such notification shall include a copy of
16
this Stipulated Protective Order; and
17
(c) cooperate with respect to all reasonable procedures sought to be pursued
18
by the Designating Party whose Protected Material may be affected.
19
If the Designating Party timely seeks a protective order, the Party served with
20
the subpoena or court order shall not produce any information designated in this
21
action as “CONFIDENTIAL” before a determination by the court from which the
22
subpoena or order issued, unless the Party has obtained the Designating Party’s
23
permission. The Designating Party shall bear the burden and expense of seeking
24
protection in that court of its confidential material and nothing in these provisions
25
should be construed as authorizing or encouraging a Receiving Party in this Action
26
to disobey a lawful directive from another court.
27
28
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 13 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 14 of 20 Page ID #:774
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10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
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PRODUCED IN THIS LITIGATION
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(a) The terms of this Order are applicable to information produced by a
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Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
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produced by Non-Parties in connection with this litigation is protected by the
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remedies and relief provided by this Order. Nothing in these provisions should be
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construed as prohibiting a Non-Party from seeking additional protections.
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(b) In the event that a Party is required, by a valid discovery request, to
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produce a Non-Party’s confidential information in its possession, and the Party is
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subject to an agreement with the Non-Party not to produce the Non-Party’s
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confidential information, then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-
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Party that some or all of the information requested is subject to a
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confidentiality agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a
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reasonably specific description of the information requested; and
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(3) make the information requested available for inspection by the
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Non-Party, if requested.
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(c) If the Non-Party fails to seek a protective order from this court within
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14 days of receiving the notice and accompanying information, the Receiving Party
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may produce the Non-Party’s confidential information responsive to the discovery
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request. If the Non-Party timely seeks a protective order, the Receiving Party shall
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not produce any information in its possession or control that is subject to the
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confidentiality agreement with the Non-Party before a determination by the court.
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Absent a court order to the contrary, the Non-Party shall bear the burden and expense
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of seeking protection in this court of its Protected Material.
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[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 14 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 15 of 20 Page ID #:775
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11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this
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Stipulated Protective Order, the Receiving Party must immediately (a) notify in
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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
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persons to whom unauthorized disclosures were made of all the terms of this Order,
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and (d) request such person or persons to execute the “Acknowledgment and
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Agreement to Be Bound” that is attached hereto as Exhibit A.
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12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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PROTECTED MATERIAL
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Pursuant to Federal Rule of Evidence 502(d) and (e), the Parties agree to the
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following procedure to address the inadvertent disclosure of a communication or
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information covered by the attorney-client privilege or work product protection. The
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production of Disclosure or Discovery Material, electronically stored information, or
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other information, whether inadvertent or otherwise, is not a waiver of the privilege
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or protection from discovery in this case or in any other federal or state proceeding.
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This Order shall be interpreted to provide the maximum protection allowed by
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Federal Rule of Evidence 502(d).
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The Producing Party must notify the Receiving Party promptly, in writing,
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upon discovery that privileged or protected information has been produced. Upon
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receiving written notice from the Producing Party that privileged and/or protected
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information has been produced, all such information, and all copies thereof, shall be
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returned to the Producing Party within ten (10) business days of receipt of such notice
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and the Receiving Party shall not use such information for any purpose until further
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Order of the Court. The Receiving Party shall also attempt in good faith, to retrieve
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and return or destroy all copies of the documents in electronic format.
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[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 15 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 16 of 20 Page ID #:776
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The Receiving Party may contest the privilege or protected designation by the
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Producing Party. However, the Receiving Party may not challenge the privilege or
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protection claim by arguing that the disclosure itself was a waiver of any privilege or
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protection. The Challenging Party shall give the Producing Party written notice of
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the reason it contests the privilege or protected designation. The Challenging Party
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shall seek an order from the court compelling the production of the information
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within fifteen (15) days of the notice by the Producing Party.
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13. MISCELLANEOUS
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13.1 Right to Further Relief. Nothing in this Order abridges the right of any
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person to seek its modification by the Court in the future.
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13.2 Right to Assert Other Objections. By stipulating to the entry of this
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Protective Order, no Party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in this
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Stipulated Protective Order. Similarly, no Party waives any right to object on any
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ground to use in evidence of any of the material covered by this Protective Order.
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13.3 Filing Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Local Civil Rule 79-5. Protected Material may
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only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Material at issue. If a Party’s request to file Protected Material
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under seal is denied by the court, then the Receiving Party may file the information
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in the public record unless otherwise instructed by the court.
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14. FINAL DISPOSITION
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After the final disposition of this Action, as defined in paragraph 4, within 60
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days of a written request by the Designating Party, each Receiving Party must return
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all Protected Material to the Producing Party or destroy such material. As used in this
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subdivision, “all Protected Material” includes all copies, abstracts, compilations,
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summaries, and any other format reproducing or capturing any of the Protected
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[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 16 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 17 of 20 Page ID #:777
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Material. Whether the Protected Material is returned or destroyed, the Receiving
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Party must submit a written certification to the Producing Party (and, if not the same
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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
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(by category, where appropriate) all the Protected Material that was returned or
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destroyed and (2) affirms that the Receiving Party has not retained any copies,
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abstracts, compilations, summaries or any other format reproducing or capturing any
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of the Protected Material. Notwithstanding this provision, Counsel are entitled to
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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
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reports, attorney work product, and consultant and expert work product, even if such
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materials contain Protected Material. Any such archival copies that contain or
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constitute Protected Material remain subject to this Protective Order as set forth in
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Section 4 (DURATION).
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15. VIOLATION
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Any violation of this Order may be punished by appropriate measures
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including, without limitation, contempt proceedings and/or monetary sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 17 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 18 of 20 Page ID #:778
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Dated: February 23, 2023 Respectfully submitted,
2 UNITED STATES SECURITIES AND
MORGAN, LEWIS & BOCKIUS LLP, EXCHANGE COMMISSION,
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By: /s/ Joseph E. Floren By: /s/Ariella Omholt Guardi_______
5 Joseph E. Floren Ariella Omholt Guardi (pro hac vice)
One Market Street Charles J. Kerstetter (pro hac vice)
6 Spear Street Tower Jonathan A. Epstein (pro hac vice)
San Francisco, CA 94105-1596 175 West Jackson Blvd., Suite 1450
7 Telephone: (415) 442-1391 Chicago, Illinois 60604
joseph.floren@morganlewis.com guardia@sec.gov
8 kerstetterc@sec.gov
G. Jeffrey Boujoukos (pro hac vice) epsteinjo@sec.gov
9 1701 Market Street Telephone: (312) 353-7390
Philadelphia, PA 19103-2921
Facsimile: (312) 353-7398
10 Telephone: (215) 963-5000
jeff.boujoukos@morganlewis.com
11 LOCAL COUNSEL
Jason S. Pinney (pro hac vice) Donald W. Searles
12 Andrew M. Buttaro (pro hac vice) United States Securities and Exchange
One Federal Street Commission
13 Boston, MA 02110-1726 444 S. Flower Street, Suite 900
Telephone: (617) 341-7700 Los Angeles, California 90071
14 jason.pinney@morganlewis.com Telephone: (323) 965-3998
andrew.buttaro@morganlewis.com Facsimile: (213) 443-1904
15 searlesd@sec.gov
Attorneys for Defendant Western
16 International Securities, Inc.
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MURPHY COOKE LLP
18 MARKUN ZUSMAN & COMPTON
LLP,
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20 By: /s/Patrick T. Murphy_______
PATRICK T. MURPHY, #178189
21 (patrick@murphycooke.com)
CHRISTOPHER COOKE, #142342
22 (ccooke@murphycooke.com)
533 Airport Blvd., Suite 400
23 Burlingame, CA 94010
Tel: (650) 401-2220
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JEFFREY K. COMPTON,#142969
25 (jcompton@mzclaw.com)
NATHAN SMITH, #279124
26 (nsmith@mzclaw.com)
DAVID J. SHINDER, #323499
27 (dshinder@mzclaw.com)
17383 W. Sunset Blvd., Suite A-380
28 Pacific Palisades, CA 90272
[PROPOSED] STIPULATED
MO BR OG CA KN IU, SL LEW LPIS & 18 PROTECTIVE ORDER
ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM
SAN FRANCISCO
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 19o0f20 Page ID#:779
1 | Tel: (310) 454-5900
2 || Attorneys for Defendants Nancy Cole,
Patrick Egan, Andy Gitipityapon, Steven
3 || Graham, and Thomas Swan
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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Dated: 2/23/2023 (dy Mex ke
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HONORABLE ALEXANDER F. MACKINNON
MN UNITED STATES MAGISTRATE JUDGE
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soncan Lawet [PROPOSED] STIPULATED
BOCKIUS LLP 19 PROTECTIVE ORDER
“SanERNeco. 2:22-CV-04119-ODW-AFM
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 20 of 20 Page ID #:780
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _________________________________ [print or type full name], of
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___________________________________________________________ [print or
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type full address], declare under penalty of perjury that I have read in its entirety
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and understand the Stipulated Protective Order that was issued by the United States
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District Court for the Central District of California on __________ [date] in the
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case of SEC v. Western Int’l. Sec., Inc. et al., Case No. 22:22-cv-4119- ODW-
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AFM. I agree to comply with and to be bound by all the terms of this Stipulated
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Protective Order and I understand and acknowledge that failure to so comply could
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expose me to sanctions and punishment in the nature of contempt. I solemnly
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promise that I will not disclose in any manner any information or item that is
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subject to this Stipulated Protective Order to any person or entity except in strict
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compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court
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for the Central District of California for the purpose of enforcing the terms of this
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Stipulated Protective Order, even if such enforcement proceedings occur after
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termination of this action. I hereby appoint _____________________________
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[print or type full name] of ___________________________________________
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[print or type full address and telephone number] as my California agent for service
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of process in connection with this action or any proceedings related to enforcement
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of this Stipulated Protective Order.
23 DATED:________________________ BY: _________________________________
24 Signature__________________________
Title_______________________________
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Address ___________________________
26 City, State, Zip _____________________
27 Telephone Number _______________
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO