Iroquois Master Fund, Ltd. v. Global ePoint, Inc.

Filing 98

PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Notice of Lodging #97 . (See document for details). (mr)

JOHN H. DONBOLI(SBN: 205218)
DONBOLI LAW GROUP,APC
2 11682 El Camino Real, Suite 100
San Diego, CA 92130
3 Telephone:[phone]
Facsimile:[phone]
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Attorneys for Defendant: GLOBAL EPOINT,INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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IROQUOIS MASTER FUND,LTD.,

CASE NO.2:08-cv-07761 UA(SSx)

Plaintiff and
Judgment Creditor,

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[~R8~8SL~'D]'STIPULATED
PROTECTIVE ORDER

vs.
[DISCOVERY DOCUMENT:
REFERRED TO MAGISTRATE
JUDGE SUZANNE H. SEGAL]

GLOBAL ePOINT,Inc.

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Defendants.
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Magistrate Judge: Hon. Suzanne H.
Segal

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PURPOSES AND LIMITATIONS

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

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proprietary or private information for which special protection from public

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

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

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-1STIl'ULATED PROTECTNE ORDER

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

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Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends

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

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under the applicable legal principles.
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GOOD CAUSE STATEMENT
This action is likely to involve confidential settlement agreements wherein

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third parties' rights to privacy are at issue and other financial information for
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which special protection from public disclosure and from use for any purpose other

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than prosecution ofthis action is warranted.

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Such confdential and proprietary materials and information may consist of,
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among other things, confidential settlement agreements (including information

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implicating privacy rights of third parties), financial statements, and information

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otherwise generally unavailable to the public, or which maybe privileged or
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otherwise protected from disclosure under state or federal statutes, court rules, case

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decisions, or common law. Accordingly, to expedite the flow of information, to

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facilitate the prompt resolution of disputes over confidentiality of discovery

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materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of

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such material in prosecuting this litigation, to address their handling at the end of

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-2STIPULATGD PROTECTIVE ORDER

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the litigation, and serve the ends ofjustice, a protective order for such information

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is justified. in this matter. It is the intent of the parties that information will not be
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designated as confidential for tactical reasons and that nothing be so designated

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without a good faith belief that it has been maintained in a confidential, non-public

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manner, and there is good cause why it should not be part ofthe public record of
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this case.

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1.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

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SEAL
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The parties further acknowledge, as set forth in Section 12.3, below, that this
Stipulated Protective Order does not entitle them to file confidential information

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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
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and. the standards that will be applied when a party seeks permission from the court

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to file material under seal.

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There is a strong presumption that the public has a right of access to judicial
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proceedings and records in civil cases. I.n connection with non-dispositive motions,

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

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and County ofHonolulu,447 F.3d 1172, 1176 (9th Cir. 2006),Phillips v. Gen.

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

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

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orders require good cause showing), and a specific showing of good cause or

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-3S"PIPULATBD PROTECTIVE ORDCR

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compelling reasons with proper evidentiary support and legal justification, must be

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made with respect to Protected Material that a party seeks to file under seal. The
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parties' mere designation of Disclosure or Discovery Material as

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CONFIDENTIAL does not— without the submission of competent evidence by

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declaration, establishing that the material sought to be filed under seal qualifies as
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confidential, privileged, or otherwise protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion or trial,

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then compelling reasons, not only good cause, for the sealing must be shown, and
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the relief sought shall be narrowly tailored to serve the specific intet•est to be

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protected. See Pintos v. Pacific Creditors Ass'n., 605 F.3d 665,677-79(9th Cir.

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2010). For each item or type ofinformation, document, or thing sought to be filed

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

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seeking protection must articulate compelling reasons, supported by specific facts

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and legal justification, for the requested sealing order. Again, competent evidence

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supporting the application to file documents under seal must be provided by

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declaration.

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Any document that is not confidential, privileged, or otherwise protectable
in its entirety will not be filed under seal if the confidential portions can be
redacted. If documents can be redacted, then a redacted version for public viewing,

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omitting only the confidential, privileged, or otherwise protectable portions ofthe

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-4STIPULATED PROTECTIVE ORDER

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document, shall be filed. Any application that seeks to file documents under seal in

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

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DEFINITIONS
2 Action: This pending federal lawsuit, Iroquois Master Fund, Ltd v.
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Global. ePoint, Inc, Case No. 2:08-cv-07761 UA (SSx).
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2 Challen in~Pa~-tx: a Party or Non-Party that challenges the
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designation of information or items under this Order.

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2 "CONFIDENTIAL" Information or Items: information (regardless of
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how it is generated, stored or maintained) or tangible things that qualify for

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

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the Good Cause Statement.
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2 Counsel: Outside Counsel of Record and House Counsel(as well as their
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support staff.

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2 Desi natin~artX: a Party or Non-Party that designates information or
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items that it produces in disclosures or in responses to discovery as

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"
CONFIDENTIAL."

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2 Disclosure or Discovery Material: all items or information, regardless
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of the medium oi• manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced
~ or generated in disclosures or responses to discovery in this matter.

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-sS9'IPULATED PROTCCTIVE ORDER

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2.7 Exert: a person with specialized knowledge or experience in a

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Matter pertinent to the litigation who has been retained by a Party or its counsel to
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serve as an expert witness or as a consultant in this Action.
2.8 House Counsel: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any other
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outside counsel.
2 Non-Party: any natural person, partnership, corporation, association or
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other legal entity not named as a Party to this action.
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Outside Counsel ofRecord: attorneys who are not employees of a

party to this Action but are retained to represent or advise a party to this Action

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and have appeared in this Action on behalf of that party or are affiliated with a law
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f that has appeared on behalf of that party, and includes support staff.
irm
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: any party to this Action, including all ofits officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
.12 Producin~arty: a Party or Non-Party that produces Disclosure or
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Discovery Material in this Action.
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Professional Vendors: persons or entities that provide litigation

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

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

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-6STIPULATED PR07'ECTIVE ORDER

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and their employees and subcontractors.

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.14 .Protected Material: any Disclosure or Discovery Material that is
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designated as "CONFIDENTIAL."

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Receiving partX: a Party that receives Disclosure or Discovery

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I Material from a Producing Party.
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SCOPE
The protections conferred. by this Stipulation and Order cover not only

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Protected Material (as defined above), but also(1)any information copied or
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extracted from Protected Material;(2) all copies, excerpts, summaries, or

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

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presentations by Parties or their Counsel that might reveal Protected Material.
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CONFIDENTIAL Information may not be used or referenced outside of this

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Action. Either party may petition the Court at the appropriate time to modify this

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Order so that CONFIDENTIAL Information may be used outside of this ACTION

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based on a showing of good cause.

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DURATION

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This Stipulation and Order is entered into "postjudgment" as

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Plaintiff/Judgment Creditor IROQUOIS MASTER FUND,LTD obtained a

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judgment against Defendant/Judgment Debtor GLOBAL ePOINT,INC. This

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protective order shall be effective upon entry of this order and apply to Discovery

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-7STIPULATGD PROTECTING ORDER

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~ Material produced on and after such date and continue until such time that the

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Court orders otherwise.
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DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Desi~n

n~ Material for Protection.

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~ each Party or Non.
-Party that designates information or items for protection under
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8 ~ this Order must take care to limit any such designation to specific material that
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qualifies under the appropriate standards. The Designating Party must designate for

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~ protection only those parts of material, documents, items or oral or written
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communications that qualify so that otller portions ofthe material, documents,

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

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unjustifiably within the ambit of this Order.
IS
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Mass, indiscriminate or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to
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impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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

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

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

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5.2 Manner and Timin ~of Designations. Except as otherwise provided in

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-sSTIPUL,ATGD PROTEC'fIVC ORDER

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

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stipulated. or ordered, Disclosure or Discovery Material that qualiftes for protection
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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:
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a. For information in documentary form (e.g., paper or
electronic documents, but excluding transcripts of depositions or other pretrial or

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trial proceedings), that the Producing Party affix at a minimum,the legend
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CONFIDENTIAL"(hereinafter "CONFIDENTIAL legend"), to each page that
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contains protected material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portions)
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e.g., by malting appropriate markings in the margins).
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A Party or Non-Party that makes original documents available far inspection

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need not designate them for protection until after the inspecting Party has indicated
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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed "CONFIDENTIAL." After the inspecting Party has identified the

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

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

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

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-9S"fIPULATED PI20'i'ECTIVC ORDER

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the "CONFIDENTIAL legend" to each page that contains Protected Material. If

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only a portion of the material on a page qualifies for protection., the Producing
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Party also must clearly identify the protected portions)(e.g., by making

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appropriate markings in the margins).

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b. For testimony given in depositions that the Designating Party
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identifies the Disclosure or Discovery Material on the record, before the close of

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the deposition all protected testimony.

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c. For information produced in some form other than documentary and

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

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the exterior ofthe container or containers in which the infot~nation is stored the

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legend "CONFIDENTIAL." If only a portion or portions of the information
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warrants protection, the Producing Party, to the extent practicable, shall identify

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the protected portion(s).

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

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

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the Designating Patty's right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order. Nothing in this protective order shall be construed as

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allowing a party to designate as .Protected Material documents or information

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-1 oS'PIPULA1'ED PROTECTIVE ORDER

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~ produced prior to entry of this protective order absent an additional order ofthe

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Court.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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designation of confidentiality at any time that is consistent with the Court's
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Scheduling Order.

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

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resolution process under Local Rule 37-1 et seq.
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6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

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joint stipulation pursuant to Local Rule 37-2.

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6.4 The burden of persuasion in any such challenge proceeding shall be on
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the Designating Party. Frivolous challenges, and those made for an improper

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

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

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

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

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

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challenge.

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7
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ACCESS TO AND USE OF PROTECTED MATERIAL

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

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STIPULATED PROTECTIVE ORDER

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

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Action only for prosecuting, defending or attempting to settle this Action. Such
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Protected Material may be disclosed only to the categories of persons and under

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

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Receiving Party must comply with the provisions of section 13 below(FINAL
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DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7 Disclosure of"CONFIDENTIAL" Information or Items. Unless
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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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"
CONFIDENTIAL" only to:

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a. the Receiving Party's Outside Counsel of Record in this Action, as

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

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necessary to disclose the information for this Action;

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

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

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

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-12S"fll'ULA'fED PROTECTIVE ORDER

1

"Acknowledgment and Agreement to Be Bound"(Exhibit A);

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d. the court and its personnel;
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e. court reporters and their staff;

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f professional jury or trial consultants, mock jurors, and Professional
.

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~ Vendors to whom disclosure is reasonably necessary for this Action and who have
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signed the "Acknowledgment and Agreement to Be Bound"(Exhibit A);

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g. the author or recipient of a document containing the information or a

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i, custodian or other person who otherwise possessed or knew the information;
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h. during their depositions, witnesses, and attorneys for witnesses, in the

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1 3 ' Action to whom
disclosure is reasonably necessary provided:(1)the deposing
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party requests that the witness sign the form attached as Exhibit 1 hereto; and (2}
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they will not be permitted to keep any confidential information unless they sign the

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Acknowledgment and Agreement to Be Bound"(Exhibit A), unless otherwise
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agreed by the Designating Party or ordered by the court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal Protected Material may

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

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except as permitted under this Stipulated Protective Order; and
i. any mediator or settlement officer, and their supporting personnel,

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

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PROT~CT~D MATERIAL SUBPOENAED OR ORDERED

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-13STIPULATF.D PROTECTING ORD@R

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PRODUCED IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation
3
4 ~ that compels disclosure of any information or items designated in this Action as
5 ~ "CONFIDENTIAL," that Party must:
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a. promptly notify in writing the Designating Party. Such notification
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shall include a copy of the subpoena or court order;
b. promptly notify in writing the party who caused the subpoena or

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>>

order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Stipulated Protective Order; and

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c. cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material inay be affected.

17 If the
Designating Party timely seeks a protective order, the Party served with
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the subpoena or court order shall not produce any information designated in this

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action as "CONFIDENTIAL" before a determination by the court from which the

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

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

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

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

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to disobey a lawful directive from another court.

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-14STIPULATED PROTECTIVE ORDF,R

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9.

ANON-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
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 allon-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 allon-Party's confdential 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-.Party that some or all of the information requested is subject to a

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confidentiality agreement with allon-Party;
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2 promptly provide the Non-Party with a copy ofthe
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Stipulated Protective Order in this Action, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
3. make the information requested available for inspection by
the 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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-]5S'I'IPULATED PROTECTIVE ORDER

1

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

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~ Party may produce the Non-Party's confidential information responsive to the
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4

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

5 ~ Party shall not produce any information in its possession or control that is subject
6

to the confidentiality agreement with the Non-Party before a determination by the
7
8 ~ court. Absent a court order to the contrary, the Non-Party shall bear the burden and
9

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

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'~ 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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I 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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IS

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

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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19

person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such 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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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

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-16STIPULATED PRO"fECTIVG ORDER

1

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

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protection, the obligations of the Receiving Parties are those set forth in Federal
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4

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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

6

production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or

10

work product protection, the parties may incorporate their agreement in the
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12

stipulated protective order submitted to the court.

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12.

MISC~LLAN~OUS

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12.1 Right to Further Relief. Nothing in this Order abridges the right of
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Any person to seek its modification by the Court in the future.

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

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19

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

20

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

21

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

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any ground to use in evidence of any of the material covered by this Protective
Order.
12.3 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

28
-t7STIPULATF.,D PIiOTGCTIVE ORDER

1

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

2

specific Protected Material. at issue. If a Party's request to file Protected Material
3
4

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

5

in the public record unless otherwise instructed by the court.

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/ //
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13.

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

FINAL DISPOSITION

10

days of a written request by the Designating Party, each Receiving Party must
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2
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return all Protected Material to the Producing Party or destroy such material. As

13

used in this subdivision,"all Protected Material" includes all copies, abstracts,

14

compilations, summaries, and any other format reproducing or capturing any of the
15
16

Protected Material. Whether the Protected Material is returned or destroyed, the

17

Receiving Party must submit a written certification to the Producing Party (and, if

18

not the same person or entity, to the Designating Party) by the 60 day deadline that
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1)
20 ( identifies (by category, where appropriate) all the Protected Material that was
21

returned or destroyed and (2)affirms that the Receiving Party has not retained any

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23

copies, abstracts, compilations, summaries or any other format reproducing or

24

capturing any ofthe Protected Material. Notwithstanding this provision, Counsel

25

are entitled to retain an archival copy of all pleadings, motion papers, trial,

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27

deposition, and hearing transcripts, legal memoranda, correspondence, deposition

28

-isSTIPULATCD PROTECTIVE ORDER

1

~ and trial exhibits, expert reports, attorney work product, and consultant and expert

2

work product, even if such materials contain Protected Material. Any such archival
3
4 '~ copies that contain or constitute Protected Material remain subject to this
5

Protective Order as set forth in Section 4(DURATION).

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14.

VIOLATION

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9

Any violation of this Order may be punished by appropriate measures
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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DONBOLI LAW GROUP, APC

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~~~~~~~

DATED: 12.23.17

Jo H. Donboli
Attorney for Judgment Debtor: Global ePoint, Inc.

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MINTZ LEVIN
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DATED: iz, z7 ~~
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,
__

}--

__.~..~
_
-- " Joseph Dunn
Attorney for Judgment Creditor: Iroquois Master
Fund, Ltd.

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FOR GOOD CAUSE SHOWN,IT IS SO ORDERED.

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DATED:

, i~
`O~

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HON. SUZ.~I NE H. SEGA~
United States Magistrate Judge

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- l 9STIPULATED PR07'ECTfVE ORDER

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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IROQUOIS MASTER FUND,LTD.,
Plaintiff and
Judgment Creditor,

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CASE NO. 2:08-cv-07761 UA(SSx)
STIPULATED
PROTECTIVE ORDER

vs.
Magistrate Judge: Hon. Suzanne H.
Segal

GLOBAL ePOINT,Inc.

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Defendants.
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T ~TTTTT TT

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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[print or type full name], of

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

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

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-20STIPULATED PROTECTIVE ORDER

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was issued by the United States District Court for the Central District of California

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on [date] in the case ofIroquois Master Fund, Ltd v. Global ePoint, Inc, Case No.
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4 ~, 2:08-cv-07761 UA (SSx). I agree to comply with and to be bound by all the terms
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of this Stipulated Protective Order and I understand and acknowledge that failure

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to so comply could expose me to sanctions and punishment in the nature of
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8 I, contempt. I solemnly promise that I will not disclose in any manner any
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information or item that is subject to this Stipulated Protective Order to any person

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or entity except in strict co►npliance with the provisions of this Order.Ifurther

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agree to submit to the jurisdiction of the United. States District Court for the

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

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Order, even if such enforcement proceedings occur after termination of this action.
[print or type full name] of

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[print or type full address and

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telephone number] as my California agent for service of process in connection with
this action or any proceedings related to enforcement of this Stipulated Protective

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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-2]STIPULATED PROTECTIVC ORDGR