distinguishing “good 8 cause” showing for sealing documents produced in discovery from “compelling 9 reasons” standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good 8 cause” showing for sealing documents produced in discovery from “compelling 9 reasons” standard when merits-related documents are part of court record
- even stipulated protective orders require 23 good cause showing
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 Southern Division
11
SECURITIES AND EXCHANGE Case No. 2:22-cv-00812 FWS (JCx)
12 COMMISSION,
13 Plaintiff, STIPULATED PROTECTIVE ORDER
14
vs.
[CHANGES MADE BY COURT TO
15 PARAGRAPHS 3, 8 &, 9]
MICHAEL M. BECK,
16
Defendant,
17
18 AND
19 HELEN P. ROBINSON,
20
Relief Defendant.
21
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26
27
1 1. A. PURPOSES AND LIMITATIONS
2 Discovery in this action is likely to involve production of confidential,
3 proprietary or private information for which special protection from public disclosure
4 and from use for any purpose other than prosecuting this litigation may be warranted.
5 Plaintiff Securities and Exchange Commission (“SEC”) further takes the position that
6 when considering whether good cause for a protective order under Rule 26(c) exists,
7 courts must weigh the presumption of openness of litigation materials against the
8 asserted right of confidentiality. When the government is a party to the litigation,
9 those matters are of significant public concern which may often outweigh any
10 competing interest in confidentiality. Nonetheless, the parties hereby stipulate to and
11 petition the Court to enter the following Stipulated Protective Order. The parties
12 acknowledge that this Order does not confer blanket protections on all disclosures or
13 responses to discovery and that the protection it affords from public disclosure and
14 use extends only to the limited information or items that are entitled to confidential
15 treatment under the applicable legal principles.
16 B. GOOD CAUSE STATEMENT
17 This action is likely to involve valuable commercial, financial, technical and/or
18 proprietary information for which special protection from public disclosure and from
19 use for any purpose other than prosecution of this action is warranted. Such
20 confidential and proprietary materials and information consist of, among other things,
21 private and confidential third-party trading information – including personal
22 identifiable information – reflected in bluesheet data, and/or confidential business or
23 financial information, information regarding confidential business practices, or other
24 confidential research, development, or commercial information (including
25 information implicating privacy rights of third parties), information otherwise
26 generally unavailable to the public, or which may be privileged or otherwise
27 protected from disclosure under state or federal statutes, court rules, case decisions,
1 prompt resolution of disputes over confidentiality of discovery materials, to
2 adequately protect information the parties are entitled to keep confidential, to ensure
3 that the parties are permitted reasonable necessary uses of such material in
4 preparation for and in the conduct of trial, to address their handling at the end of the
5 litigation, and serve the ends of justice, a protective order for such information is
6 justified in this matter. It is the intent of the parties that information will not be
7 designated as confidential for tactical reasons and that nothing be so designated
8 without a good faith belief that it has been maintained in a confidential, non-public
9 manner, and there is good cause why it should not be part of the public record of this
10 case.
11 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
12 The parties further acknowledge, as set forth in Section 12.3, below, that this
13 Stipulated Protective Order does not create an entitlement or an obligation to file
14 confidential information under seal; Local Civil Rule 79-5 sets forth the procedures
15 that must be followed and the standards that will be applied when a party seeks
16 permission from the court to file material under seal.
17 There is a strong presumption that the public has a right of access to judicial
18 proceedings and records in civil cases. In connection with non-dispositive motions,
19 good cause must be shown to support a filing under seal. See Kamakana v. City and
20 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
21 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Wellbon v. Sony Electrics,
22 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
23 good cause showing), and a specific showing of good cause or compelling reasons
24 with proper evidentiary support and legal justification, must be made with respect to
25 Protected Material that a party seeks to file under seal. The parties’ mere designation
26 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the
27 submission of competent evidence by declaration, establishing that the material
1 sought to be filed under seal qualifies as confidential, privileged, or otherwise
2 protectable—constitute good cause.
3 Further, if a party requests sealing related to a dispositive motion or trial, then
4 compelling reasons, not only good cause, for the sealing must be shown, and the
5 relief sought shall be narrowly tailored to serve the specific interest to be protected.
6 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.), cert. denied,
7 562 U.S. 665 (2010). For each item or type of information, document, or thing
8 sought to be filed or introduced under seal in connection with a dispositive motion or
9 trial, the party seeking protection must articulate compelling reasons, supported by
10 specific facts and legal justification, for the requested sealing order. Again,
11 competent evidence supporting the application to file documents under seal must be
12 provided by declaration.
13 Any document that is not confidential, privileged, or otherwise protectable in
14 its entirety will not be filed under seal if the confidential portions can be redacted. If
15 documents can be redacted, then a redacted version for public viewing, omitting only
16 the confidential, privileged, or otherwise protectable portions of the document, shall
17 be filed. Any application that seeks to file documents under seal in their entirety
18 should include an explanation of why redaction is not feasible.
19
20 2. DEFINITIONS
21 2.1. Action: Securities and Exchange Commission v. Michael M. Beck, et
22 al., USDC Case No. 2:22-cv-00812-FWS-JCx.
23 2.2. Challenging Party: a Party or Non-Party that challenges the designation
24 of information or items under this Order.
25 2.3. “CONFIDENTIAL” Information or Items: information (regardless of
26 how it is generated, stored or maintained) or tangible things that qualify for protection
27 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
1 2.4. Counsel: attorneys who are retained or employed to represent or advise
2 a Party in this action (as well as their support staff).
3 2.5. Designating Party: a Party or Non-Party that designates information or
4 items that it produces in disclosures or in responses to discovery as
5 “CONFIDENTIAL.”
6 2.6. Disclosure or Discovery Material: all items or information, regardless
7 of the medium or manner in which it is generated, stored, or maintained (including,
8 among other things, testimony, transcripts, and tangible things), that are produced or
9 generated in disclosures or responses to discovery in this matter.
10 2.7. Expert: a person with specialized knowledge or experience in a matter
11 pertinent to the litigation who has been retained by a Party or its counsel to serve as
12 an expert witness or as a consultant in this Action.
13 2.8. Non-Party: any natural person, partnership, corporation, association or
14 other legal entity not named as a Party to this action.
15 2.9. Party: any party to this Action, including all of its officers, directors,
16 employees, consultants, retained experts, and Counsel (and their support staffs).
17 2.10. Producing Party: a Party or Non-Party that produces Disclosure or
18 Discovery Material in this Action.
19 2.11. Professional Vendors: persons or entities that provide litigation support
20 services (e.g., photocopying, videotaping, translating, preparing exhibits or
21 demonstrations, and organizing, storing, or retrieving data in any form or medium)
22 and their employees and subcontractors.
23 2.12. Protected Material: any Disclosure or Discovery Material that is
24 designated as “CONFIDENTIAL.”
25 2.13. Receiving Party: a Party that receives Disclosure or Discovery Material
26 from a Producing Party.
27
1 3. SCOPE
2 The protections conferred by this Stipulation and Order cover not only
3 Protected Material (as defined above), but also (1) any information copied or
4 extracted from Protected Material; (2) all copies, excerpts, summaries, or
5 compilations of Protected Material; and (3) any deposition testimony, conversations,
6 or presentations by Parties or their Counsel that might reveal Protected Material other
7 than during a court hearing or at trial.
8 However, the protections conferred by this Protective Order do not cover the
9 following information: (a) any information that is in the public domain at the time of
10 disclosure to a Receiving Party or becomes part of the public domain after its
11 disclosure to a Receiving Party as a result of publication not involving violation of
12 this Protective Order, including becoming part of the public record through trial or
13 otherwise; (b) any information known to the Receiving Party prior to the disclosure
14 or obtained by the Receiving Party after the disclosure from a source who obtained
15 the information lawfully and under no obligation of confidentiality to the Designating
16 Party; and (c) any information that has come into the possession of a Receiving Party
17 prior to the entry of this Protective Order.
18 Notwithstanding any other provision contained herein, this Protective Order
19 shall not limit or otherwise abrogate the ability and authority of Plaintiff Securities
20 and Exchange Commission (“SEC”) to, without notifying the Designating Party: (1)
21 use, disclose, or retain any materials to the extent required by law; and/or (2) use or
22 disclose any materials in a manner consistent with paragraphs 1-22 of Section H of
23 SEC Form 1662 (the “Routine Uses of Information”), a copy of which is attached
24 hereto as Exhibit B.
25 Any use of Protected Material during a court hearing or at trial shall be
26 governed by the orders of the presiding judge. This Order does not govern the use of
27 Protected Material during a court hearing or at trial.
1 4. DURATION
2 Once a case proceeds to trial, information that was designated as
3 CONFIDENTIAL or maintained pursuant to this protective order and then used or
4 introduced as an exhibit at trial becomes public and will be presumptively available
5 to all members of the public, including the press, unless compelling reasons
6 supported by specific factual findings to proceed otherwise are made to the trial judge
7 in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good
8 cause” showing for sealing documents produced in discovery from “compelling
9 reasons” standard when merits-related documents are part of court record).
10 Accordingly, the terms of this protective order do not extend beyond the
11 commencement of the trial as to all such information that becomes public.
12
13 5. DESIGNATING PROTECTED MATERIAL
14 5.1. Exercise of Restraint and Care in Designating Material for Protection.
15 Each Party or Non-Party that designates information or items for protection under this
16 Order must take care to limit any such designation to specific material that qualifies
17 under the appropriate standards. The Designating Party must designate for protection
18 only those parts of material, documents, items or oral or written communications that
19 qualify so that other portions of the material, documents, items or communications
20 for which protection is not warranted are not swept unjustifiably within the ambit of
21 this Order.
22 Mass, indiscriminate or routinized designations are prohibited. Designations
23 that are shown to be clearly unjustified or that have been made for an improper
24 purpose (e.g., to unnecessarily encumber the case development process or to impose
25 unnecessary expenses and burdens on other parties) may expose the Designating
26 Party to sanctions.
27
1 If it comes to a Designating Party’s attention that information or items that it
2 designated for protection do not qualify for protection, that Designating Party must
3 promptly notify all other Parties that it is withdrawing the inapplicable designation.
4 5.2. Manner and Timing of Designations. Except as otherwise provided in
5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
7 under this Order must be clearly so designated before the material is disclosed or
8 produced in order for the protections conferred by this Protective Order to apply.
9 Designation in conformity with this Order requires:
10 (a) for information in documentary form (e.g., paper or electronic
11 documents, but excluding transcripts of depositions or other pretrial or trial
12 proceedings), that the Producing Party affix at a minimum, the legend
13 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
14 contains protected material. If only a portion of the material on a page qualifies for
15 protection, the Producing Party also must clearly identify the protected portion(s)
16 (e.g., by making appropriate markings in the margins).
17 A Party or Non-Party that makes original documents available for inspection
18 need not designate them for protection until after the inspecting Party has indicated
19 which documents it would like copied and produced. During the inspection and
20 before the designation, all of the material made available for inspection shall be
21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
22 it wants copied and produced, the Producing Party must determine which documents,
23 or portions thereof, qualify for protection under this Order. Then, before producing
24 the specified documents, the Producing Party must affix the “CONFIDENTIAL
25 legend” to each page that contains Protected Material. If only a portion of the
26 material on a page qualifies for protection, the Producing Party also must clearly
27 identify the protected portion(s) (e.g., by making appropriate markings in the
1 (b) for testimony given in depositions, that the Designating Party identifies
2 the Disclosure or Discovery Material on the record, before the close of the deposition
3 all protected testimony.
4 (c) for information produced in some form other than documentary and for
5 any other tangible items, that the Producing Party affix in a prominent place on the
6 exterior of the container or containers in which the information is stored the legend
7 “CONFIDENTIAL.” If only a portion or portions of the information warrants
8 protection, the Producing Party, to the extent practicable, shall identify the protected
9 portion(s).
10 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent
11 failure to designate qualified information or items does not, standing alone, waive the
12 Designating Party’s right to secure protection under this Order for such material.
13 Upon timely correction of a designation, the Receiving Party must make reasonable
14 efforts to assure that the material is treated in accordance with the provisions of this
15 Order.
16
17 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
18 6.1. Timing of Challenges. Any Party or Non-Party may challenge a
19 designation of confidentiality at any time that is consistent with the Court’s
20 Scheduling Order.
21 6.2. Meet and Confer. The Challenging Party shall initiate the dispute
22 resolution process under Local Rule 37.1 et seq.
23 6.3. The burden of persuasion in any such challenge proceeding shall be on
24 the Designating Party. Frivolous challenges, and those made for an improper purpose
25 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
26 expose the Challenging Party to sanctions. Unless the Designating Party has waived
27 or withdrawn the confidentiality designation, all parties shall continue to afford the
1 material in question the level of protection to which it is entitled under the Producing
2 Party’s designation until the Court rules on the challenge.
3
4 7. ACCESS TO AND USE OF PROTECTED MATERIAL
5 7.1. Basic Principles. A Receiving Party may use Protected Material that is
6 disclosed or produced by another Party or by a Non-Party in connection with this
7 Action only for prosecuting, defending or attempting to settle this Action. Such
8 Protected Material may be disclosed only to the categories of persons and under the
9 conditions described in this Order. When the Action has been terminated, a
10 Receiving Party must comply with the provisions of section 13 below (FINAL
11 DISPOSITION).
12 Protected Material must be stored and maintained by a Receiving Party at a
13 location and in a secure manner that ensures that access is limited to the persons
14 authorized under this Order.
15 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless
16 otherwise ordered by the court or permitted in writing by the Designating Party, a
17 Receiving Party may disclose any information or item designated
18 “CONFIDENTIAL” only to:
19 (a) the Receiving Party’s Counsel of Record in this Action, as well as
20 employees of said Counsel of Record to whom it is reasonably necessary to disclose
21 the information for this Action;
22 (b) the officers, directors, and employees of the Receiving Party to whom
23 disclosure is reasonably necessary for this Action;
24 (c) Experts (as defined in this Order) of the Receiving Party to whom
25 disclosure is reasonably necessary for this Action and who have signed the
26 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27 (d) the court and its personnel;
1 (f) professional jury or trial consultants, mock jurors, and Professional
2 Vendors to whom disclosure is reasonably necessary for this Action and who have
3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
4 (g) the author or recipient of a document containing the information or a
5 custodian or other person who otherwise possessed or knew the information;
6 (h) during their depositions, witnesses, and attorneys for witnesses, in the
7 Action to whom disclosure is reasonably necessary provided they will not be
8 permitted to keep any confidential information unless they sign the
9 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
10 agreed by the Designating Party or ordered by the court. Pages of transcribed
11 deposition testimony or exhibits to depositions that reveal Protected Material may be
12 separately bound by the court reporter and may not be disclosed to anyone except as
13 permitted under this Stipulated Protective Order;
14 (i) potential witnesses interviewed by a Receiving Party’s counsel, in
15 connection with the action to whom Counsel determines that disclosure is reasonably
16 necessary provided they sign the “Acknowledgment and Agreement to Be Bound”
17 (Exhibit A). Potential witnesses may be shown information and documents
18 designated “CONFIDENTIAL” for purposes of an interview but shall not be given a
19 copy of such document(s) to keep permanently; and
20 (j) any mediator or settlement officer, and their supporting personnel,
21 mutually agreed upon by any of the parties engaged in settlement discussions.
22
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
23
OTHER LITIGATION
24
25 If a Party is served with a subpoena or a court order issued in other litigation
26 that compels disclosure of any information or items designated in this Action as
27 “CONFIDENTIAL,” that Party must:
1 (a) promptly notify in writing the Designating Party. Such notification shall
2 include a copy of the subpoena or court order; and
3 (b) promptly notify in writing the party who caused the subpoena or order
4 to issue in the other litigation that some or all of the material covered by the subpoena
5 or order is subject to this Protective Order. Such notification shall include a copy of
6 this Stipulated Protective Order.
7 If the Designating Party timely seeks a protective order, the Party served with
8 the subpoena or court order shall not produce any information designated in this
9 action as “CONFIDENTIAL” before a determination by the court from which the
10 subpoena or order issued, unless the Party has obtained the Designating Party’s
11 permission or unless otherwise required by the law or court order. The Designating
12 Party shall bear the burden and expense of seeking protection in that court of its
13 confidential material and nothing in these provisions should be construed as
14 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
15 directive from another court.
16
17 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
18 PRODUCED IN THIS LITIGATION
19
(a) The terms of this Order are applicable to information produced by a
20
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
21
produced by Non-Parties in connection with this litigation is protected by the
22
remedies and relief provided by this Order. Nothing in these provisions should be
23
construed as prohibiting a Non-Party from seeking additional protections.
24
(b) In the event that a Party is required, by a valid discovery request, to
25
produce a Non-Party’s confidential information in its possession, and the Party is
26
subject to an agreement with the Non-Party not to produce the Non-Party’s
27
confidential information, then the Party shall:
1 (1) promptly notify in writing the Requesting Party and the Non-Party
2 that some or all of the information requested is subject to a confidentiality agreement
3 with a Non-Party;
4 (2) promptly provide the Non-Party with a copy of the Stipulated
5 Protective Order in this Action, the relevant discovery request(s), and a reasonably
6 specific description of the information requested; and
7 (3) make the information requested available for inspection by the
8 Non-Party, if requested.
9 (c) If the Non-Party fails to seek a protective order from this court within 14
10 days of receiving the notice and accompanying information, the Receiving Party may
11 produce the Non-Party’s confidential information responsive to the discovery request.
12 If the Non-Party timely seeks a protective order, the Receiving Party shall not
13 produce any information in its possession or control that is subject to the
14 confidentiality agreement with the Non-Party before a determination by the court
15 unless otherwise required by the law or court order. Absent a court order to the
16 contrary, the Non-Party shall bear the burden and expense of seeking protection in
17 this court of its Protected Material.
18
19 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
20 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
21 Protected Material to any person or in any circumstance not authorized under this
22 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
23 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
24 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
25 persons to whom unauthorized disclosures were made of all the terms of this Order,
26 and (d) request such person or persons to execute the “Acknowledgment and
27 Agreement to Be Bound” that is attached hereto as Exhibit A.
1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
2 PROTECTED MATERIAL
3
When a Producing Party gives notice to Receiving Parties that certain
4
inadvertently produced material is subject to a claim of privilege or other protection,
5
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
6
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
7
may be established in an e-discovery order that provides for production without prior
8
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
9
parties reach an agreement on the effect of disclosure of a communication or
10
information covered by the attorney-client privilege or work product protection, the
11
parties may incorporate their agreement in the stipulated protective order submitted to
12
the court.
13
14
12. MISCELLANEOUS
15
12.1. Right to Further Relief. Nothing in this Order abridges the right of any
16
person to seek its modification by the Court in the future.
17
12.2. Right to Assert Other Objections. By stipulating to the entry of this
18
Protective Order, no Party waives any right it otherwise would have to object to
19
disclosing or producing any information or item on any ground not addressed in this
20
Stipulated Protective Order. Similarly, no Party waives any right to object on any
21
ground to use in evidence of any of the material covered by this Protective Order.
22
12.3. Filing Protected Material. A Party that seeks to file under seal any
23
Protected Material must comply with Local Civil Rule 79-5. Protected Material may
24
only be filed under seal pursuant to a court order authorizing the sealing of the
25
specific Protected Material at issue. If a Party’s request to file Protected Material
26
under seal is denied by the court, then the Receiving Party may file the information in
27
the public record unless otherwise instructed by the court.
1 Notwithstanding any other provision of this Protective Order, the SEC shall not
2 be limited in its ability to share, disclose, or produce any information received in
3 connection with this action with any other federal or state authority, agency, or
4 department.
5
6 13. FINAL DISPOSITION
7 After the final disposition of this Action within 60 days of a written request by
8 the Designating Party, each Receiving Party must return all Protected Material to the
9 Producing Party or destroy such material. As used in this subdivision, “all Protected
10 Material” includes all copies, abstracts, compilations, summaries, and any other
11 format reproducing or capturing any of the Protected Material. Whether the Protected
12 Material is returned or destroyed, the Receiving Party must submit a written
13 certification to the Producing Party (and, if not the same person or entity, to the
14 Designating Party) by the 60 day deadline that (1) identifies (by category, where
15 appropriate) all the Protected Material that was returned or destroyed and (2) affirms
16 that the Receiving Party has not retained any copies, abstracts, compilations,
17 summaries or any other format reproducing or capturing any of the Protected
18 Material. Notwithstanding this provision, Counsel are entitled to retain an archival
19 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
20 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
21 work product, and consultant and expert work product, even if such materials contain
22 Protected Material. Any such archival copies that contain or constitute Protected
23 Material remain subject to this Protective Order except as set forth in Section 4
24 (DURATION).
25 Unlike private litigants, the SEC has separate and additional document
26 retention obligations mandated by statutes, including, but not limited to, the
27 following: (1) 18 U.S.C. §§ 641 and 2071; (2) 44 U.S.C. Chapters 21, 29, 31, and 33;
1 Protected Material in the possession of the SEC. In addition, nothing in this
2 Protective Order shall restrict or limit the SEC from retaining any materials to the
3 extent required by law. The SEC may retain any Protected Material should it or its
4 staff determine that it should or must retain such information to fulfill its record-
5 keeping obligations or any other obligation, or to carry out any permitted uses under
6 the SEC’s Form 1662.
7
8 14. VIOLATION
9 Any violation of this Order may be punished by appropriate measures
10 including, without limitation, contempt proceedings and/or monetary sanctions.
11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
12
13 DATED May 9, 2023
14 /s/ Gary Y. Leung
15 GARY Y. LEUNG
Attorney for Plaintiff
16
17
DATED May 9, 2023
18
/s/ Michael M. Beck
19
Pro Se Defendant Michael M. Beck
20
21 DATED May 9, 2023
22 /s/ Helen P. Robinson
23
Pro Se Relief Defendant Helen P. Robinson
24
25 ///
26 ///
27 ///
1 LOCAL RULE 5-4.3.4(a)(2)(i) CERTIFICATION
2 Pursuant to Local Rule 5-4.3.4(a)(2)(i), I, Gary Y. Leung, attest that all other
3 signatories listed above, and on whose behalf the filing is submitted, concur in the
4 filing’s content and have authorized the filing.
5
Dated: May 9, 2023
6
/s/ Gary Y. Leung
7 GARY Y. LEUNG
Attorney for Plaintiff
8
SECURITIES AND EXCHANGE
9 COMMISSION
10
11 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED AS MODIFIED.
12
13 DATED: May 17, 2023
14 /s/
15 HON. JACQUELINE CHOOLJIAN
United States Magistrate Judge
16
17
18
19
20
21
22
23
24
25
26
27
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I,________________ [print or type full name], of
4 ________________[print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that was
6 issued by the United States District Court for the Central District of California on
7 May 17, 2023 in the case of Securities and Exchange Commission v. Michael M.
8 Beck, et al., USDC Case No. 2:22-cv-00812-FWS-JCx. I agree to comply with and
9 to be bound by all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and punishment
11 in the nature of contempt. I solemnly promise that I will not disclose in any manner
12 any information or item that is subject to this Stipulated Protective Order to any
13 person or entity except in strict compliance with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court for the
15 Central District of California for enforcing the terms of this Stipulated Protective
16 Order, even if such enforcement proceedings occur after termination of this action.
17 I hereby appoint________________[print or type full name] of
18 ________________[print or type full address and telephone number] as my
19 California agent for service of process in connection with this action or any
20 proceedings related to enforcement of this Stipulated Protective Order.
21 Date:________________
22 City and State where sworn and signed:________________
23
Printed name: ________________
24
25 Signature: ________________
26
27
1 EXHIBIT B
2 SECURITIES AND EXCHANGE COMMISSION
3 Washington, D.C. 20549
4 Supplemental Information for Persons Requested to Supply
Information Voluntarily or Directed to Supply Information
5
Pursuant to a Commission Subpoena
6
A. False Statements and Documents
Section 1001 of Title 18 of the United States Code provides that fines and terms of imprisonment may be imposed upon:
7 [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government
of the United States, knowingly and willfully--
8 (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
9 (3) makes or uses any false writing or document knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry.
10 Section 1519 of Title 18 of the United States Code provides that fines and terms of imprisonment may be imposed upon:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any
11 record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of any department or agency of the United States . . ., or in
12 relation to or contemplation of any such matter.
B. Testimony
13
If your testimony is taken, you should be aware of the following:
14 1. Record. Your testimony will be transcribed by a reporter. If you desire to go off the record, please indicate this to the
Commission employee taking your testimony, who will determine whether to grant your request. The reporter will not
15 go off the record at your, or your counsel’s, direction.
2. Counsel. You have the right to be accompanied, represented and advised by counsel of your choice. Your counsel
16 may advise you before, during and after your testimony; question you briefly at the conclusion of your testimony to
clarify any of the answers you give during testimony; and make summary notes during your testimony solely for your
17 use. If you are accompanied by counsel, you may consult privately.
If you are not accompanied by counsel, please advise the Commission employee taking your testimony if, during the
18 testimony, you desire to be accompanied, represented and advised by counsel. Your testimony will be adjourned once to
afford you the opportunity to arrange to be so accompanied, represented or advised.
19 You may be represented by counsel who also represents other persons involved in the Commission’s investigation. This
multiple representation, however, presents a potential conflict of interest if one client’s interests are or may be adverse to
20 another’s. If you are represented by counsel who also represents other persons involved in the investigation, the
Commission will assume that you and counsel have discussed and resolved all issues concerning possible conflicts of
21 interest. The choice of counsel, and the responsibility for that choice, is yours.
3. Transcript Availability. Rule 6 of the Commission’s Rules Relating to Investigations, 17 CFR 203.6, states:
22
A person who has submitted documentary evidence or testimony in a formal investigative proceeding shall
be entitled, upon written request, to procure a copy of his documentary evidence or a transcript of his
23 testimony on payment of the appropriate fees: Provided, however, That in a nonpublic formal investigative
proceeding the Commission may for good cause deny such request. In any event, any witness, upon
24 proper identification, shall have the right to inspect the official transcript of the witness’ own testimony.
If you wish to purchase a copy of the transcript of your testimony, the reporter will provide you with a copy of the
25 appropriate form. Persons requested to supply information voluntarily will be allowed the rights provided by this rule.
4. Perjury. Section 1621 of Title 18 of the United States Code provides that fines and terms of imprisonment may be
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imposed upon:
27 Whoever--
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the
1 that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and
contrary to such oath states or subscribes any material matter which he does not believe to be true; or
2 (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under
section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does
3 not believe to be true.
5. Fifth Amendment and Voluntary Testimony. Information you give may be used against you in any federal, state, local
4 or foreign administrative, civil or criminal proceeding brought by the Commission or any other agency.
You may refuse, in accordance with the rights guaranteed to you by the Fifth Amendment to the Constitution of the
5 United States, to give any information that may tend to incriminate you.
6 If your testimony is not pursuant to subpoena, your appearance to testify is voluntary, you need not answer any question,
and you may leave whenever you wish. Your cooperation is, however, appreciated.
7 6. Formal Order Availability. If the Commission has issued a formal order of investigation, it will be shown to you during
your testimony, at your request. If you desire a copy of the formal order, please make your request in writing.
8 C. Submissions and Settlements
Rule 5(c) of the Commission’s Rules on Informal and Other Procedures, 17 CFR 202.5(c), states:
9
Persons who become involved in . . . investigations may, on their own initiative, submit a written
10 statement to the Commission setting forth their interests and position in regard to the subject matter of
the investigation. Upon request, the staff, in its discretion, may advise such persons of the general
nature of the investigation, including the indicated violations as they pertain to them, and the amount of
11 time that may be available for preparing and submitting a statement prior to the presentation of a staff
recommendation to the Commission for the commencement of an administrative or injunction
12 proceeding. Submissions by interested persons should be forwarded to the appropriate Division
Director or Regional Director with a copy to the staff members conducting the investigation and should
13 be clearly referenced to the specific investigation to which they relate. In the event a recommendation
for the commencement of an enforcement proceeding is presented by the staff, any submissions by
interested persons will be forwarded to the Commission in conjunction with the staff memorandum.
14
The staff of the Commission routinely seeks to introduce submissions made pursuant to Rule 5(c) as evidence in
15 Commission enforcement proceedings, when the staff deems appropriate.
Rule 5(f) of the Commission’s Rules on Informal and Other Procedures, 17 CFR 202.5(f), states:
16
In the course of the Commission’s investigations, civil lawsuits, and administrative proceedings, the
staff, with appropriate authorization, may discuss with persons involved the disposition of such matters
17 by consent, by settlement, or in some other manner. It is the policy of the Commission, however, that
the disposition of any such matter may not, expressly or impliedly, extend to any criminal charges that
18 have been, or may be, brought against any such person or any recommendation with respect thereto.
Accordingly, any person involved in an enforcement matter before the Commission who consents, or
19 agrees to consent, to any judgment or order does so solely for the purpose of resolving the claims
against him in that investigative, civil, or administrative matter and not for the purpose of resolving any
criminal charges that have been, or might be, brought against him. This policy reflects the fact that
20 neither the Commission nor its staff has the authority or responsibility for instituting, conducting,
settling, or otherwise disposing of criminal proceedings. That authority and responsibility are vested in
21 the Attorney General and representatives of the Department of Justice.
D. Freedom of Information Act
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The Freedom of Information Act, 5 U.S.C. 552 (the “FOIA”), generally provides for disclosure of information to the public.
Rule 83 of the Commission’s Rules on Information and Requests, 17 CFR 200.83, provides a procedure by which a
23 person can make a written request that information submitted to the Commission not be disclosed under the FOIA. That
rule states that no determination as to the validity of such a request will be made until a request for disclosure of the
24 information under the FOIA is received. Accordingly, no response to a request that information not be disclosed under
the FOIA is necessary or will be given until a request for disclosure under the FOIA is received. If you desire an
25 acknowledgment of receipt of your written request that information not be disclosed under the FOIA, please provide a
duplicate request, together with a stamped, self-addressed envelope.
26 E. Authority for Solicitation of Information
Persons Directed to Supply Information Pursuant to Subpoena. The authority for requiring production of information is set
27 forth in the subpoena. Disclosure of the information to the Commission is mandatory, subject to the valid assertion of any
legal right or privilege you might have.
1 Persons Requested to Supply Information Voluntarily. One or more of the following provisions authorizes the
Commission to solicit the information requested: Sections 19 and/or 20 of the Securities Act of 1933; Section 21 of the
2 Securities Exchange Act of 1934; Section 321 of the Trust Indenture Act of 1939; Section 42 of the Investment Company
Act of 1940; Section 209 of the Investment Advisers Act of 1940; and 17 CFR 202.5. Disclosure of the requested
information to the Commission is voluntary on your part.
3
F. Effect of Not Supplying Information
4 Persons Directed to Supply Information Pursuant to Subpoena. If you fail to comply with the subpoena, the Commission
may seek a court order requiring you to do so. If such an order is obtained and you thereafter fail to supply the
5 information, you may be subject to civil and/or criminal sanctions for contempt of court. In addition, Section 21(c) of the
Securities Exchange Act of 1934, Section 42(c) of the Investment Company Act of 1940, and Section 209(c) of the
Investment Advisers Act of 1940 provide that fines and terms of imprisonment may be imposed upon any person who
6
shall, without just cause, fail or refuse to attend and testify or to answer any lawful inquiry, or to produce books, papers,
correspondence, memoranda, and other records in compliance with the subpoena.
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Persons Requested to Supply Information Voluntarily. There are no direct sanctions and thus no direct effects for failing
to provide all or any part of the requested information.
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G. Principal Uses of Information
9 The Commission’s principal purpose in soliciting the information is to gather facts in order to determine whether any
person has violated, is violating, or is about to violate any provision of the federal securities laws or rules for which the
10 Commission has enforcement authority, such as rules of securities exchanges and the rules of the Municipal Securities
Rulemaking Board. Facts developed may, however, constitute violations of other laws or rules. Information provided may
11 be used in Commission and other agency enforcement proceedings. Unless the Commission or its staff explicitly agrees
to the contrary in writing, you should not assume that the Commission or its staff acquiesces in, accedes to, or concurs or
agrees with, any position, condition, request, reservation of right, understanding, or any other statement that purports, or
12 may be deemed, to be or to reflect a limitation upon the Commission’s receipt, use, disposition, transfer, or retention, in
accordance with applicable law, of information provided.
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H. Routine Uses of Information
14 The Commission often makes its files available to other governmental agencies, particularly United States Attorneys and
state prosecutors. There is a likelihood that information supplied by you will be made available to such agencies where
15 appropriate. Whether or not the Commission makes its files available to other governmental agencies is, in general, a
confidential matter between the Commission and such other governmental agencies.
16 Set forth below is a list of the routine uses which may be made of the information furnished.
1. To appropriate agencies, entities, and persons when (1) the SEC suspects or has confirmed that there has been a
17 breach of the system of records, (2) the SEC has determined that as a result of the suspected or confirmed breach there
is a risk of harm to individuals, the SEC (including its information systems, programs, and operations), the Federal
18 Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably
necessary to assist in connection with the SEC’s efforts to respond to the suspected or confirmed breach or to prevent,
minimize, or remedy such harm.
19
2. To other Federal, state, local, or foreign law enforcement agencies; securities self-regulatory organizations; and
20 foreign financial regulatory authorities to assist in or coordinate regulatory or law enforcement activities with the SEC.
3. To national securities exchanges and national securities associations that are registered with the SEC, the Municipal
21 Securities Rulemaking Board; the Securities Investor Protection Corporation; the Public Company Accounting Oversight
Board; the Federal banking authorities, including, but not limited to, the Board of Governors of the Federal Reserve
22 System, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation; state securities regulatory
agencies or organizations; or regulatory authorities of a foreign government in connection with their regulatory or
enforcement responsibilities.
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4. By SEC personnel for purposes of investigating possible violations of, or to conduct investigations authorized by, the
24 Federal securities laws.
5. In any proceeding where the Federal securities laws are in issue or in which the Commission, or past or present
25 members of its staff, is a party or otherwise involved in an official capacity.
6. In connection with proceedings by the Commission pursuant to Rule 102(e) of its Rules of Practice, 17 CFR
26 201.102(e).
7. To a bar association, state accountancy board, or other Federal, state, local, or foreign licensing or oversight authority;
27 or professional association or self-regulatory authority to the extent that it performs similar functions (including the Public
Company Accounting Oversight Board) for investigations or possible disciplinary action.
1 8. To a Federal, state, local, tribal, foreign, or international agency, if necessary to obtain information relevant to the
SEC’s decision concerning the hiring or retention of an employee; the issuance of a security clearance; the letting of a
2 contract; or the issuance of a license, grant, or other benefit.
9. To a Federal, state, local, tribal, foreign, or international agency in response to its request for information concerning
3 the hiring or retention of an employee; the issuance of a security clearance; the reporting of an investigation of an
employee; the letting of a contract; or the issuance of a license, grant, or other benefit by the requesting agency, to the
4 extent that the information is relevant and necessary to the requesting agency’s decision on the matter.
10. To produce summary descriptive statistics and analytical studies, as a data source for management information, in
5 support of the function for which the records are collected and maintained or for related personnel management functions
or manpower studies; may also be used to respond to general requests for statistical information (without personal
identification of individuals) under the Freedom of Information Act.
6
11. To any trustee, receiver, master, special counsel, or other individual or entity that is appointed by a court of
7 competent jurisdiction, or as a result of an agreement between the parties in connection with litigation or administrative
proceedings involving allegations of violations of the Federal securities laws (as defined in section 3(a)(47) of the
Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)) or pursuant to the Commission’s Rules of Practice, 17 CFR
8 201.100 through 900 or the Commission’s Rules of Fair Fund and Disgorgement Plans, 17 CFR 201.1100 through 1106,
or otherwise, where such trustee, receiver, master, special counsel, or other individual or entity is specifically designated
9 to perform particular functions with respect to, or as a result of, the pending action or proceeding or in connection with the
administration and enforcement by the Commission of the Federal securities laws or the Commission’s Rules of Practice
10 or the Rules of Fair Fund and Disgorgement Plans.
12. To any persons during the course of any inquiry, examination, or investigation conducted by the SEC’s staff, or in
11 connection with civil litigation, if the staff has reason to believe that the person to whom the record is disclosed may have
further information about the matters related therein, and those matters appeared to be relevant at the time to the subject
12 matter of the inquiry.
13. To interns, grantees, experts, contractors, and others who have been engaged by the Commission to assist in the
13 performance of a service related to this system of records and who need access to the records for the purpose of
assisting the Commission in the efficient administration of its programs, including by performing clerical, stenographic, or
14 data analysis functions, or by reproduction of records by electronic or other means. Recipients of these records shall be
required to comply with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a.
15 14. In reports published by the Commission pursuant to authority granted in the Federal securities laws (as such term is
defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)), which authority shall include,
16 but not be limited to, section 21(a) of the Securities Exchange Act of 1934, 15 U.S.C. 78u(a)).
15. To members of advisory committees that are created by the Commission or by Congress to render advice and
17 recommendations to the Commission or to Congress, to be used solely in connection with their official designated
functions.
18 16. To any person who is or has agreed to be subject to the Commission’s Rules of Conduct, 17 CFR 200.735-1 through
200.735-18, and who assists in the investigation by the Commission of possible violations of the Federal securities laws
19 (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)), in the
preparation or conduct of enforcement actions brought by the Commission for such violations, or otherwise in connection
20 with the Commission’s enforcement or regulatory functions under the Federal securities laws.
17. To a Congressional office from the record of an individual in response to an inquiry from the Congressional office
21 made at the request of that individual.
18. To members of Congress, the press, and the public in response to inquiries relating to particular Registrants and their
22 activities, and other matters under the Commission’s jurisdiction.
19. To prepare and publish information relating to violations of the Federal securities laws as provided in 15 U.S.C.
23 78c(a)(47)), as amended.
24 20. To respond to subpoenas in any litigation or other proceeding.
21. To a trustee in bankruptcy.
25 22. To any governmental agency, governmental or private collection agent, consumer reporting agency or commercial
reporting agency, governmental or private employer of a debtor, or any other person, for collection, including collection
26 by administrative offset, Federal salary offset, tax refund offset, or administrative wage garnishment, of amounts owed as
a result of Commission civil or administrative proceedings.
27 23. To another Federal agency or Federal entity, when the SEC determines that information from this system of records
is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or
1 information systems, programs, and operations), the Federal Government, or national security, resulting from a
suspected or confirmed breach.
2 * * * * *
3 Small Business Owners: The SEC always welcomes comments on how it can better assist small businesses. If you
would like more information, or have questions or comments about federal securities regulations as they affect small
4 businesses, please contact the Office of Small Business Policy, in the SEC’s Division of Corporation Finance, at 202-
551-3460. If you would prefer to comment to someone outside of the SEC, you can contact the Small Business
Regulatory Enforcement Ombudsman at http://www.sba.gov/ombudsman or toll free at 888-REG-FAIR. The
5 Ombudsman’s office receives comments from small businesses and annually evaluates federal agency enforcement
activities for their responsiveness to the special needs of small business.
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