Vitaly Ivanovich Smagin v. Ashot Yegiazaryan

Filing 80

STIPULATED PROTECTIVE ORDER REGARDING DISCOVERY IN AID OF EXECUTION OF JUDGMENT by Judge Manuel L. Real, re Stipulation 79 . See document for details. (gk)

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Bruce H. Jackson, State Bar No. 98118
[e-mail]
Anne M. Kelts, State Bar No. 298710
[e-mail]
BAKER & McKENZIE LLP
Two Embarcadero Center, 11th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Nicholas O. Kennedy, State Bar No. 280504
[e-mail]
BAKER & McKENZIE LLP
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, TX 75201
Telephone: [phone]
Facsimile: [phone]
Attorneys for Petitioner
VITALY IVANOVICH SMAGIN

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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VITALY IVANOVICH SMAGIN,

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Petitioner,
v.
ASHOT YEGIAZARYAN, a.k.a.
ASHOT EGIAZARYAN
Respondent.

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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE
ORDER REGARDING
DISCOVERY IN AID OF
EXECUTION OF JUDGMENT

Before: The Honorable Manuel L. Real
Courtroom: 8, 2nd Floor
312 N. Spring Street
Los Angeles, CA 90012

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Baker & McKenzie LLP
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Case No. 14-cv-09764-R (PLAx)
[PROPOSED] STIPULATED PROTECTIVE ORDER
6762515-v1\SFODMS

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STIPULATED PROTECTIVE ORDER REGARDING DISCOVERY IN AID

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OF EXECUTION OF JUDGMENT

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WHEREAS, on March 17, 2016, the Court granted summary judgment

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(ECF 56) in favor of Petitioner Vitaly Smagin on his petition to confirm an arbitral

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award in his favor (the "London Award") and on March 31, 2016 entered final

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judgment (ECF 59) in Petitioner's favor and against Respondent Ashot Yegiazaryan in

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the amount of $ 92,503.652, as of February 8, 2016, plus interest (the "Judgment");

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WHEREAS, Petitioner has commenced discovery in aid of execution of the
Judgment pursuant to Federal Rule of Civil Procedure 69(a)(2);
WHEREAS, Respondent contends that discovery in aid of execution of the

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Judgment, including that discovery already propounded by Petitioner, may necessitate

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the disclosure of information (through documents, testimony, or both) that

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Respondent believes to be private and confidential insofar as it incorporates

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proprietary, financial, and/or other highly sensitive personal information.

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WHEREAS, the Parties deem it appropriate to provide for the protection of

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such information without agreeing that the specific information is, in fact, confidential

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or proprietary, and to preserve all Parties' rights to challenge any such designation at a

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later time;

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WHEREAS, the Parties believe that entry of this Protective Order will permit

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discovery in aid of execution of the Judgment to proceed more expeditiously and with

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less expense by reducing the need for motions for protective orders and by avoiding

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disputes over confidential material.

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NOW, THEREFORE, IT IS HEREBY AGREED, STIPULATED THAT:

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1.

This Protective Order shall govern all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, documents, testimony, transcripts, and tangible things) which is
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Case No. 14-cv-09764-R (PLAx)
[PROPOSED] STIPULATED PROTECTIVE ORDER

designated as containing "Confidential Information" as defined herein, that is
produced or generated in disclosures or responses by Respondent to any discovery
propounded by Petitioner pursuant to Rule 69.
2.

The term "Confidential Information" shall mean confidential and/or proprietary

commercial, financial, budgeting, and/or accounting information; information that
could reasonably be used to perpetuate identity theft; and any other information that is
reasonably believed by Respondent to be non-public, proprietary, or confidential.
Examples of the types of information that would fall within these categories include,
among other things, the following: (i) compensation information (such as salary or
other earnings), (ii) social security number; (iii) date of birth; (iv) credit status; (v)
credit history and bankruptcy history (whether personal bankruptcy or of a company
in which the person was a majority owner); (vi) information relating to assets, debts,
expenditures and/or net worth; (vii) bank account information; (viii) investment
information; (ix) taxpayer information. "Confidential Information" shall expressly not
include the following: (a) any information that is in the public domain at the time of
disclosure or becomes part of the public domain after its disclosure as a result of
publication not involving a violation of this Order, including becoming part of the
public record through trial or otherwise; and (b) any information known to Petitioner
prior to the disclosure or obtained by the Petitioner after the disclosure from a source
who obtained the information lawfully and under no obligation of confidentiality to
Respondent.
3.

Confidential documents shall be so designated affixing the legend

“CONFIDENTIAL” to each page that contains protected material. If only a portion or
portions of the material on a page qualifies for protection, Respondent also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins). Respondent must take care to limit any such designation to specific material
that qualifies under the appropriate standards and must designate for protection only
those parts of material, documents, items, or oral or written communications that
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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER

qualify – so that other portions of the material, documents, items, or communications
for which protection is not warranted are not swept unjustifiably within the ambit of
this Order. Mass, indiscriminate, or routinized designations are prohibited.
Designations that are shown to be clearly unjustified or that have been made for an
improper purpose (e.g., to unnecessarily encumber or retard the efforts to enforce the
Judgment in this case or to impose unnecessary expenses and burdens on Petitioner)
expose the Respondent to sanctions.
4.

Testimony taken at a deposition may be designated as confidential by

making a statement to that effect on the record at the deposition. Arrangements shall
be made with the court reporter taking and transcribing such deposition to separately
bind such portions of the transcript containing information designated as confidential,
and to label such portions appropriately. Portions of deposition transcripts that
concern material designated as Confidential Material shall automatically be given the
same designation.
5.

Material or testimony designated as confidential under this Protective

Order, the information contained therein, and any summaries, copies, abstracts, or
other documents derived in whole or in part from material or testimony designated as
confidential (hereinafter "Confidential Material") shall be used only for the purposes
of this Action and any and all actions, proceedings or efforts relating to enforcement
of the Judgment or the London Award or to discover assets that may be used to satisfy
either (including, without limitation, any actions or proceedings to freeze or enjoin the
transfer or concealment of assets, to obtain further clarification of the beneficial
ownership of assets or alleging fraudulent transfers made to conceal beneficial
ownership of assets and/or to avoid enforcement of the Judgment or award), pursuant
to the terms and conditions of this Protective Order, and for no other purpose absent
an express written agreement between the Parties providing otherwise or order of a
court of applicable jurisdiction. The Parties agree that Confidential Material may not
be provided to or used in any criminal proceeding other than a proceeding specifically
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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER

relating to or arising from enforcement of the Judgment or the London Award.
6.

Confidential Material produced pursuant to this Protective Order may be

disclosed or made available only to an appropriate court or tribunal, to counsel for
Petitioner (including the paralegal, clerical, and secretarial staff employed by
counsel), and to the "qualified persons" designated below, only in accordance with the
purposes set forth in Paragraph 5 above:
(a) Petitioner, or an officer, director, or employee of Petitioner deemed
necessary by counsel to aid in litigation;
(b) Experts, investigators or consultants (together with their clerical staff)
retained by such counsel;
(c) Court reporter(s);
(d) A witness at any deposition or other legal proceeding; and
(e) Any other person as to whom the Parties in writing agree.
Prior to receiving any Confidential Material, each "qualified person" shall be
provided with a copy of this Protective Order and shall execute a nondisclosure
agreement in the form of Attachment A hereto, a copy of which shall be provided
forthwith to counsel for each other party. No other persons shall be entitled to receive
or review Confidential Material.
7.

Confidential Material produced pursuant to this Protective Order and

designated CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES ONLY may only be
shown to outside counsel for Petitioner and all other protections afforded to
Confidential Material under the Protective Order apply to documents so designated.
As to documents used in actions or proceedings envisaged by Paragraph 5, Petitioner
shall take all reasonable steps to ensure: (i) that information relating to Confidential
Material designated as “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
ONLY” that is disclosed or used in any other actions or proceedings is sealed and
accessible only by the judicial/tribunal authority in those other actions or proceedings
and no other parties; and (ii) that documents designated as “CONFIDENTIAL –
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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER

OUTSIDE ATTORNEYS’ EYES ONLY” are in no event disclosed to anyone other
than the persons authorized to receive such materials under paragraph 6 of the instant
protective order.
8.

Only qualified persons may attend depositions at which Confidential

Material is used or discussed.
9.

Nothing herein shall impose any restrictions on the use or disclosure by a

Petitioner of material obtained independent of formal discovery, whether or not such
material is also obtained through discovery.
10.

If Confidential Material, including, without limitation, any portion of a

deposition transcript designated as Confidential, is included in any papers to be filed
with or provided to any court or tribunal, such papers shall be accompanied by an
application to (a) file the confidential portions thereof under seal (if such portions are
segregable), or (b) file the papers in their entirety under seal (if the confidential papers
are not segregable). The application shall be directed to the court or tribunal to whom
the papers are directed. Pending the ruling on the application, the papers or portions
thereof subject to the sealing application shall be lodged under seal.
11.

If, any time, any Confidential Material is subpoenaed or requested by any

court, administrative or legislative body, or by any other person or entity purporting to
have authority to require the production thereof, from a person who received such
Confidential Material under this Protective Order, the person to whom the subpoena
or request is directed, to the extent permitted by law, shall promptly give notice to the
Respondent and include with that notice a copy of the subpoena or request. The
person to whom the subpoena or request is directed also shall not produce documents
for at least ten (10) days after the notice of the subpoena is provided to the Respondent
in order to provide the Respondent a reasonable period of time in which to quash,
limit or object to the subpoena or request, or to move for any protection for the
Confidential Material. In no event shall such Confidential Material subject to this
Protective Order be produced by a person receiving a subpoena or request without
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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER

providing the Respondent an opportunity to quash, limit, or object, absent a Court
order to do so or as otherwise required by law. In the event that Confidential Material
is produced in response to a subpoena or request, the recipient of the subpoena or
request shall take commercially reasonably steps to ensure that the protections
afforded under this Protective Order shall continue to apply to such Confidential
Material.
12.

This Protective Order shall be without prejudice to the right of the Parties

(a) to bring before any court or tribunal at any time the question of whether any
particular document or information is confidential or whether its use should be
restricted, or (b) to present a motion to the Court under Fed. R. Civ. P. 26(c) for a
separate protective order as to any particular document or information, including
restrictions differing from those as specified herein. This Protective Order shall not be
deemed to prejudice the Parties in any way in any future application for modification
of this Protective Order. Petitioner may challenge a designation of confidentiality at
any time. Unless a prompt challenge to a confidentiality designation is necessary to
avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a
significant disruption or delay of the litigation, Petitioner does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly
after the original designation is disclosed.
13.

The Parties shall attempt to resolve any challenge in good faith and must

begin the process by conferring directly (in voice to voice dialogue; other forms of
communication are not sufficient). Petitioner may file a motion challenging a
confidentiality designation at any time if there is good cause for doing so, including a
challenge to the designation of a deposition transcript or any portions thereof. Any
motion brought pursuant to this provision must be accompanied by a competent
declaration affirming that the movant has complied with the meet and confer
requirements imposed by this paragraph.
14.
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This Protective Order is solely for the purpose of facilitating the
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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER

production of documents and disclosure of information from Respondent to Petitioner
in response to Rule 69 discovery requests, without involving the Court unnecessarily
in the process. Nothing in this Protective Order, nor the production of any information
or document under the terms of this Protective Order, nor any proceedings pursuant to
this Protective Order, shall be deemed to have the effect of an admission or waiver by
any party or of altering the confidentiality or non-confidentiality of any such
document or information or altering any existing obligation of any party or the
absence thereof.
15.

The designation and production of Confidential Material pursuant to this

Protective Order shall not be construed as a concession by Respondent that such
information is relevant, material, or admissible as to any issue.
16.

Nothing in this Protective Order shall be construed as requiring

disclosure of privileged materials, materials subject to protection under the work
product doctrine, or materials that are otherwise beyond the permissible scope of
discovery. This Protective Order is intended only to provide a mechanism for the
handling of Confidential Material to which there is no objection to producing or
disclosing other than as to its confidentiality.
17.

Information or documents disclosed through mistake or inadvertence

without the designation as Confidential Material may be so designated subsequent to
production or testimony if Respondent provides replacement materials bearing
appropriate designations and notifies Petitioner promptly after becoming aware of
same. Moreover, any information or documents disclosed through mistake or
inadvertence that is privileged under the attorney-client communication or the work
product privilege may be so designated subsequent to production or testimony if
Respondent promptly notifies Petitioner, and the inadvertent or mistaken production
of privileged material shall not waive such privilege.
18.

In the event that any Confidential Material is disclosed, either willfully or

inadvertently, by Petitioner in contravention of this Protective Order, the Confidential
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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER

Material shall not lose its status through such disclosure and the Parties shall take all
steps reasonably required to assure its continued confidentiality.
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This Protective Order shall survive the final termination of enforcement

efforts and proceedings to the extent that the information contained in the Confidential
Material is not or does not become known to the public, and the Court shall retain
jurisdiction to resolve any dispute concerning the use of information disclosed
hereunder. Upon final reversal (the judgment is reversed, and either
rehearing/rehearing en banc and/or cert. are not sought or they are denied), satisfaction
or expiration of the Judgment, counsel for Petitioner shall, upon request by
Respondent, assemble and return to Respondent all documents, material and
deposition transcripts designated as confidential and all copies of same, or shall certify
the destruction thereof.
20.

The restrictions imposed by this Protective Order may only be modified

or terminated by written stipulation of all Parties or by order of the Court.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: September 22, 2016

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_____________________________________
United States District Judge

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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER

ATTACHMENT "A"
Non-Disclosure Agreement
I, __________________, do solemnly swear that I am fully familiar with the
terms of the Protective Order Regarding Discovery in Aid of Execution of Judgment
entered in Vitaly Ivanovich Smagin v. Ashot Yegiazaryan, No. 14-cv-09764-R (PLAx),
and hereby agree to comply with and be bound by the terms and conditions of said
Protective Order unless and until modified by further Order of the Court. I hereby
consent to the jurisdiction of the Court for purposes of enforcing this non-disclosure
agreement.

Dated: ___________________________

Signature __________________________
Printed/Typed Name

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Case No. 14-cv-09764-R (PLAx)
STIPULATED PROTECTIVE ORDER