Xia Che v. MNET Financial, Inc.

Filing 18

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. (See Order for further details) re Stipulation for Protective Order 16 (vm)

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Jeffery J. Carlson (SBN 60752)
[e-mail]
Martin Schannong (SBN 243297)
[e-mail]
CARLSON & MESSER LLP
5959 W. Century Boulevard, Suite 1214
Los Angeles, California 90045
[phone] Telephone
[phone] Facsimile
Attorneys for Defendant
MNET FINANCIAL, INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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XIA CHE,
Plaintiffs,

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vs.

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MNET FINANCIAL, INC.,
Defendant.

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CASE NO. 2:11-CV-03602-DMG-MRW
District Judge: Judge Dolly M. Gee
Magistrate Judge: Michael R. Wilner
AMENDED STIPULATED
PROTECTIVE ORDER

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Defendant MNET FINANCIAL, INC. ("Defendant") and Plaintiff XIA CHE

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("Plaintiff"), through their respective counsel of record, hereby file this Stipulated

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Protective Order as set forth below.

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06738.00/178878

STIPULATED PROTECTIVE ORDER
CASE NO. 2:11-CV-03602-DMG-MRW

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1.

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Disclosure and discovery activity in this action are likely to involve production

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of confidential, proprietary, or private information for which special protection from

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

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

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

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does not confer blanket protections on all disclosures or responses to discovery and that

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the protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3 below, that this

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Stipulated Protective Order does not entitle them to file confidential information under

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seal; Local Rule 79-5 sets forth the procedures that must be followed and the standards

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that will be applied when a party seeks permission from the court to file material under

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seal.

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2.

DEFINITIONS
2.1

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PURPOSES AND LIMITATIONS

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.2

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"CONFIDENTIAL" Information or Items: information (regardless

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of 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).
2.3

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Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

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Designating Party: a Party or Non-Party that designates information

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

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"CONFIDENTIAL."
2.5

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Disclosure or Discovery Material: all items or information,

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

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(including, among other things, testimony, transcripts, and tangible things), that are
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produced or generated in disclosures or responses to discovery in this matter.
2.6

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Expert: 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 serve

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as an expert witness or as a consultant in this action.
2.7

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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 outside

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counsel.
2.8

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Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
2.9

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Outside Counsel of Record: attorneys who are not employees of a

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party to this action but are retained to represent or advise a party to this action and have

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appeared in this action on behalf of that party or are affiliated with a law firm which has

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appeared on behalf of that party.

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2.10 Party: any party to this action, including all of its officers, directors,

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

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support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation

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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) and

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their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is

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designated as "CONFIDENTIAL."
2.14 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected
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STIPULATED PROTECTIVE ORDER
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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred by

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this Stipulation and Order do not cover the following information: (a) any information

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that is in the public domain at the time of disclosure to a Receiving Party or becomes

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part of the public domain after its disclosure to a Receiving Party as a result of

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publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; and (b) any information known to the

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Receiving Party prior to the disclosure or obtained by the Receiving Party after the

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disclosure from a source who obtained the information lawfully and under no obligation

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of confidentiality to the Designating Party. Any use of Protected Material at trial shall

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be governed by a separate agreement or order.

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4.

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Even after final disposition of this litigation, the confidentiality obligations

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

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in writing or a court order otherwise directs. Final disposition shall be deemed to be the

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later of (1) dismissal of all claims and defenses in this action, with or without prejudice;

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and (2) final judgment herein after the completion and exhaustion of all appeals,

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rehearings, remands, trials, or reviews of this action, including the time limits for filing

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any motions or applications for extension of time pursuant to applicable law.

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5.

DURATION

DESIGNATING PROTECTED MATERIAL
5.1

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Exercise of Restraint and Care in Designating Material for

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Protection: Each Party or Non-Party that designates information or items for protection

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under 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 other portions of the material, documents, items,
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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Order.

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

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are shown to be clearly unjustified or that have been made for an improper purpose

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(e.g., to unnecessarily encumber or retard the case development process or to impose

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unnecessary expenses and burdens on other parties) will potentially 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 mistaken designation.
5.2

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Manner and Timing of Designations: Except as otherwise provided

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in 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 qualifies 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. Designation in conformity with this Order requires:
(a)

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

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

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proceedings), that the Producing Party affix the legend "CONFIDENTIAL" to each

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page that contains protected material. If only a portion or portions of the material on a

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

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protected portion(s) (e.g., by making appropriate markings in the margins). A Party or

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Non-Party that makes original documents or materials available for inspection need not

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designate them for protection until after the inspecting Party has indicated which

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material it would like copied and produced. During the inspection and before the

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

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"CONFIDENTIAL." After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified
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documents, the Producing Party must affix the "CONFIDENTIAL" legend to each page

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that contains Protected Material. If only a portion or portions of the material on a page

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

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

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for testimony given in deposition or in other pretrial or trial

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proceedings, that the Designating Party identify on the record, before the close of the

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deposition, hearing, or other proceeding, all protected testimony.
(c)

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for information produced in some form other than

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documentary and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in which the information

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or item is stored the legend "CONFIDENTIAL." If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate:

If timely corrected, an

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

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waive the Designating Party'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 provisions

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of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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Timing of Challenges: Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a Designating

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Party's confidentiality designation is necessary to avoid foreseeable, substantial

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unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.
6.2

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Meet and Confer: A meet-and-confer process shall be conducted in

accordance with Local Rule 37-1. Prior to the filing of any motion relating to a
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confidentiality designation, counsel for the parties shall confer in a good faith effort to

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eliminate the necessity for hearing the motion or to eliminate as many of the disputes

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as possible. It shall be the responsibility of counsel for the Challenging Party to arrange

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for this conference. If both counsel are located within the same county of the Central

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District, the conference shall take place in person at the office of the Challenging Party's

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counsel, unless the parties agree to meet someplace else. If both counsel are not located

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within the same county of the Central District, the conference may take place

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telephonically. Unless relieved by written order of the Court upon good cause shown,

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counsel for the Designating Party shall confer with counsel for the Challenging Party

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within ten (10) days after the Challenging Party serves a letter requesting such

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conference.

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challenging and describe the basis for each challenge. To avoid ambiguity as to

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whether a challenge has been made, the letter must also recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order.

The Challenging Party's letter shall identify each designation it is

6.3

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Judicial Intervention: If the Parties cannot resolve a challenge

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through the meet-and-confer process described above, court intervention shall be sought

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in compliance with Local Rule 37. Local Rule 37-2 requires that a joint stipulation

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shall be filed and served with any motion (subject to the exceptions set forth in Local

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Rule 37-2.4). The joint stipulation shall be submitted in the form described in Local

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Rule 37-2.1 and be prepared in accordance with Local Rule 37-2.2. After the joint

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stipulation is filed, each party may file a supplemental memorandum under Local Rule

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37-2.3. The motion shall be noticed to be heard pursuant to Local Rule 37-3. The

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failure of any counsel to comply with Local Rule 37 or cooperate in the foregoing

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procedures may result in the imposition of sanctions. The parties shall continue to

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

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Producing Party's designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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Basic Principles: A Receiving Party may use Protected Material that

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

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only for prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the litigation has been terminated, a Receiving Party must

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comply with the provisions of section 13 below (FINAL DISPOSITION).

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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

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authorized under this Order.

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7.2

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 "CONFIDENTIAL"

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only to:
(a)

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the Receiving Party's Outside Counsel of Record in this

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

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reasonably necessary to disclose the information for this litigation and who have signed

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the "Acknowledgment and Agreement to Be Bound" attached hereto as Exhibit A;
(b)

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the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation and who have signed the "Acknowledgment and Agreement to Be Bound"

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(Exhibit A);
(c)

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

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whom disclosure is reasonably necessary for this litigation and who have signed the

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"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, professional jury or trial

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consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably
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necessary for this litigation and who have signed the "Acknowledgment and Agreement

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to Be Bound" (Exhibit A);
(f)

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during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the "Acknowledgment and

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Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party

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or ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this Stipulated

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Protective Order.
(g)

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the author or recipient of a document containing the

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

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information.

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8.

PROTECTED

MATERIAL

SUBPOENAED

OR ORDERED

PRODUCED IN OTHER LITIGATION

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

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compels disclosure of any information or items designated in this action as

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"CONFIDENTIAL," that Party must:
(a)

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promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;
(b)

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promptly notify in writing the party who caused the subpoena

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or 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 include a

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copy of this Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to

be pursued by the Designating Party whose Protected Material may be affected.

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

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subpoena or court order shall not produce any information designated in this action as

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"CONFIDENTIAL" before a determination by the court from which the subpoena or
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order issued, unless the Party has obtained the Designating Party's permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court

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of its confidential material – and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this action to disobey a lawful directive

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from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a)

The terms of this Order are applicable to information produced by

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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 remedies

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and relief provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.
(b)

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In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party's confidential information in its possession, and the Party is

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

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information, then the Party shall:
1.

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promptly notify in writing the Requesting Party and the

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

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agreement with a Non-Party;
2.

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promptly provide the Non-Party with a copy of the Stipulated

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

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specific description of the information requested; and
3.

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make the information requested available for inspection by

the Non-Party.
(c)

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If the Non-Party fails to object or seek a protective order from this

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court within 14 days of receiving the notice and accompanying information, the

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

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the discovery request. If the Non-Party timely seeks a protective order, the Receiving
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Party shall not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.1

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

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of seeking protection in this court of its Protected Material.

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10.

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

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

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

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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such person or persons to execute the "Acknowledgment and Agreement to Be Bound"

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that is attached hereto as Exhibit A.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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obligations of the Receiving Parties are those set forth in FRCP 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an

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e-discovery order that provides for production without prior privilege review. Pursuant

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to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement

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on the effect of disclosure of a communication or information covered by the

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attorney-client privilege or work product protection, the parties may incorporate their

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agreement in the stipulated protective order submitted to the court.

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12.

MISCELLANEOUS

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The purpose of this provision is to alert the interested parties to the existence of confidentiality
rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in

this court.

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

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

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

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

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12.3 Filing Protected Material: Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected Material.

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A Party that seeks to file any Protected Material under seal must comply with Local

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Rule 79-5. If a Receiving Party's request to file Protected Material under seal pursuant

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to Local Rule 79-5 is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph

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4, each Receiving Party must return all Protected Material to the Producing Party or

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destroy such material. As used in this subdivision, "all Protected Material" includes all

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

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capturing any of the Protected Material. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if not the same person or entity, to the Designating Party) by the 60 day

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deadline that (1) identifies (by category, where appropriate) all the Protected Material

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

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

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capturing any of the Protected Material. Notwithstanding this provision, Counsel are

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

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hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
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expert reports, attorney work product, and consultant and expert work product, even if

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

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

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Section 4 (DURATION).

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IT IS SO STIPULATED.

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Dated: November 8, 2011

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Respectfully submitted by:

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CARLSON & MESSER LLP

LAW OFFICES OF TODD M. FRIEDMAN

/s/ Martin Schannong
Jeffery J. Carlson
Martin Schannong
Attorneys for Defendant
MNET FINANCIAL, INC.

/s/ Todd M. Friedman
Todd M. Friedman
Darin Shaw
Attorneys for Plaintiff
XIA CHE

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IT IS SO ORDERED.

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Dated:

November 9, 2011

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/s/ Judge Wilner
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________ [print

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or type full address], declare under penalty of perjury that I have read in its entirety and understand

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the Stipulated Protective Order that was issued by the United States District Court for the Central

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District of California on _______ [date] in the case of Xia Che v. Mnet Financial, Inc., Case No.

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2:11-CV-03602-DMG-MRW. I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose

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me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose

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

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

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

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even

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if such enforcement proceedings occur after termination of this action.

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I hereby appoint _________________________________ [print or type full name] of

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_____________________________ [print or type full address and telephone number] as my

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California agent for service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective Order.

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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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