United States of America v. 45,357.00 In U.S. Currency

Filing 35

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 34 . See order for further details. (jsan)

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EILEEN M. DECKER
United States Attorney
LAWRENCE S. MIDDLETON
Assistant United States Attorney
Chief, Criminal Division
STEVEN R. WELK
Assistant United States Attorney
Chief, Asset Forfeiture Section
FRANK D. KORTUM
California State Bar No. 110984
Assistant United States Attorney
Asset Forfeiture Section
1400 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Attorneys for Plaintiff
UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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UNITED STATES OF AMERICA,

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No. CV 15-09989-DMG (AJWx)

Plaintiff,
PROTECTIVE ORDER

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v.
$45,357.00 IN U.S. CURRENCY,

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Defendant.
NATALIE SUN

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Claimant.

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/

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1.

INTRODUCTION

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Disclosure and discovery activity in this action are likely to

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involve production of confidential, proprietary, or private

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information for which special protection from public disclosure and

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from use for any purpose other than prosecuting this litigation may

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be warranted.

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stipulated and requested that the Court to enter the following

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Stipulated Protective Order (“Order”).

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parties acknowledge that this Order does not confer blanket

Accordingly, the parties to this action have

In their stipulation, the

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protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to

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the limited information or items that are entitled to confidential

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treatment under the applicable legal principles.

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acknowledge, as set forth in Section 12.3, below, that this Order

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does not entitle them to file confidential information under seal;

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Civil Local 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

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from the court to file material under seal.

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stipulation and request of the parties, and good cause appearing, IT

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IS HEREBY ORDERED as follows:

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2.

The following definitions apply to this Order:
2.1

Action:

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2.2

Challenging Party:

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Pursuant to the

DEFINITIONS

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The parties further

this pending federal lawsuit.
a Party or Non-Party that challenges

the designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items:

information

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(regardless of how it is generated, stored or maintained) or tangible

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things that qualify for protection under Federal Rule of Civil
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Procedure 26(c).
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Counsel (without qualifier):

Counsel of Record (as well as

their support staff).
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Designating Party:

a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses

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to discovery as “CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material:

all items or

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information, regardless of the medium or manner in which it is

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generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.7

Expert:

a person with specialized knowledge or experience

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in a matter pertinent to the litigation who has been retained by a

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Party or its counsel to serve as an expert witness or as a consultant

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in this action.

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2.8

Non-Party:

any natural person, partnership, corporation,

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association, or other legal entity not named as a Party to this

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action.

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2.9

Party:

any party to this action, including all of its

officers, directors, employees, consultants, and retained experts.
2.10 Producing Party:

a Party or Non-Party that produces

Disclosure or Discovery Material in this action.
2.11 Professional Vendors:

persons or entities that provide

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litigation support services (e.g., photocopying, videotaping,

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translating, preparing exhibits or demonstrations, and organizing,

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storing, or retrieving data in any form or medium) and their

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employees and subcontractors.

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2.12 Protected Material:

any Disclosure or Discovery Material
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that is designated as “CONFIDENTIAL.”

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2.13 Receiving Party:

a Party that receives Disclosure or

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Discovery Material from a Producing Party.

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3.

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SCOPE
The protections conferred by this Order cover not only Protected

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Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts,

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

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testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material.

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protections conferred by this Order do not cover the following

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information: (a) any information that is in the public domain at the

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time of disclosure to a Receiving Party or becomes part of the public

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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

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becoming part of the public record through trial or otherwise; and

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(b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure

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from a source who obtained the information lawfully and under no

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obligation of confidentiality to the Designating Party.

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Protected Material at trial shall be governed by a separate agreement

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or order.

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4.

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However, the

Any use of

DURATION
Even after final disposition of this litigation, the

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confidentiality obligations imposed by this Order shall remain in

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effect until a Designating Party agrees otherwise in writing or a

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court order otherwise directs.

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be the later of (1) dismissal of all claims and defenses in this

Final disposition shall be deemed to

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action, with or without prejudice; and (2) final judgment herein

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after the completion and exhaustion of all appeals, rehearings,

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

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for filing any motions or applications for extension of time pursuant

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to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection.

Each Party or Non-Party that designates information or

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items for protection under this Order must take care to limit any

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such designation to specific material that qualifies under the

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appropriate standards.

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protection only those parts of material, documents, items, or oral or

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written communications that qualify – so that other portions of the

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material, documents, items, or communications for which protection is

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not warranted are not swept unjustifiably within the ambit of this

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Order.

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prohibited.

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that have been made for an improper purpose (e.g., to unnecessarily

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encumber or retard the case development process or to impose

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unnecessary expenses and burdens on other parties) expose the

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Designating Party to sanctions.

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attention that information or items that it designated for protection

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do not qualify for protection, that Designating Party must promptly

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notify all other Parties that it is withdrawing the mistaken

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designation.

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The Designating Party must designate for

Mass, indiscriminate, or routinized designations are

5.2

Designations that are shown to be clearly unjustified or

If it comes to a Designating Party’s

Manner and Timing of Designations.

Except as otherwise

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provided in this Order (see, e.g., second paragraph of section 5.2(a)

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below), or as otherwise stipulated or ordered, Disclosure or
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Discovery Material that qualifies for protection under this Order

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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:
(a)

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

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electronic documents, but excluding transcripts of depositions or

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other pretrial or trial proceedings), that the Producing Party affix

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the legend “CONFIDENTIAL” to each page that contains protected

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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

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identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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documents or materials available for inspection need not designate

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them for protection until after the inspecting Party has indicated

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which material it would like copied and produced.

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inspection and before the designation, all of the material made

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available for inspection shall be deemed “CONFIDENTIAL.”

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inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order.

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before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL” legend to each page that contains Protected

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Material.

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qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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(b)

A Party or Non-Party that makes original

During the

After the

Then,

If only a portion or portions of the material on a page

for testimony given in deposition or in other pretrial or

trial proceedings, that the Designating Party identify on the record,
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before the close of the deposition, hearing, or other proceeding, all

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protected testimony.

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(c)

for information produced in some form other than

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documentary and for any other tangible items, that the Producing

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Party affix in a prominent place on the exterior of the container or

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containers in which the information or item is stored the legend

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“CONFIDENTIAL.”

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item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.3

If only a portion or portions of the information or

Inadvertent Failures to Designate.

If timely corrected, an

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inadvertent failure to designate qualified information or items does

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not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material.

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correction of a designation, the Receiving Party must make reasonable

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

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provisions of this Order.

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6.

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Upon timely

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any Party or Non-Party may challenge

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a designation of confidentiality at any time.

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challenge to a Designating Party’s confidentiality designation is

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necessary to avoid foreseeable, substantial unfairness, unnecessary

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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

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confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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6.2

Meet and Confer.

Unless a prompt

The Challenging Party shall initiate the

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dispute resolution process by providing written notice of each

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designation it is challenging and describing the basis for each
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challenge.

To avoid ambiguity as to whether a challenge has been

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made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific

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paragraph of the Order.

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challenge in good faith and must begin the process by conferring

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directly (in voice to voice dialogue; other forms of communication

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are not sufficient) within 14 days of the date of service of notice.

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In conferring, the Challenging Party must explain the basis for its

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belief that the confidentiality designation was not proper and must

The parties shall attempt to resolve each

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give the Designating Party an opportunity to review the designated

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material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen

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designation.

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the challenge process only if it has engaged in this meet and confer

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process first or establishes that the Designating Party is unwilling

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to participate in the meet and confer process in a timely manner.

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6.3

A Challenging Party may proceed to the next stage of

Judicial Intervention.

If the Parties cannot resolve a

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challenge without court intervention, the Designating Party shall

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file and serve a motion to retain confidentiality within 21 days of

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the initial notice of challenge or within 14 days of the parties

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agreeing that the meet and confer process will not resolve their

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dispute, whichever is earlier.

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by a competent declaration affirming that the movant has complied

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with the meet and confer requirements imposed in the preceding

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paragraph.

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including the required declaration within 21 days (or 14 days, if

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applicable) shall automatically waive the confidentiality designation

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for each challenged designation.

Each such motion must be accompanied

Failure by the Designating Party to make such a motion

In addition, the Challenging Party
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may file a motion challenging a confidentiality designation at any

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time if there is good cause for doing so, including a challenge to

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the designation of a deposition transcript or any portions thereof.

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Any motion brought pursuant to this provision must be accompanied by

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a competent declaration affirming that the movant has complied with

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the meet and confer requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall

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be on the Designating Party.

Frivolous challenges, and those made

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for an improper purpose (e.g., to harass or impose unnecessary

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expenses and burdens on other parties) may expose the Challenging

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Party to sanctions.

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confidentiality designation by failing to file a motion to retain

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confidentiality as described above, all parties shall continue to

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

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is entitled under the Producing Party’s designation until the Court

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rules on the challenge.

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7.

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Unless the Designating Party has waived the

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles.

A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a Non-

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Party in connection with this case only for prosecuting, defending,

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or attempting to settle this litigation.

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be disclosed only to the categories of persons and under the

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conditions described in this Order.

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terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).

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Such Protected Material may

When the litigation has been

Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access

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is limited to the persons 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
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Designating Party, a Receiving Party may disclose any information or
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item designated “CONFIDENTIAL” only to:
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(a)

the Receiving Party’s Counsel of Record in this action,

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as well as employees of said Counsel of Record to whom it is
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reasonably necessary to disclose the information for this litigation
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and who have signed the “Acknowledgment and Agreement to Be Bound”
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that is attached hereto as Exhibit A;
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(b)

the officers, directors, and employees of the Receiving

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Party to whom disclosure is reasonably necessary for this litigation
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and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A);
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(c)

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

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to whom disclosure is reasonably necessary for this litigation and
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who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A);
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(d)

the Court and its personnel;

(e)

court reporters and their staff, professional jury or

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trial consultants, mock jurors, and Professional Vendors to whom
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disclosure is reasonably necessary for this litigation and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(f)

during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
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otherwise agreed by the Designating Party or ordered by the Court.
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Pages of transcribed deposition testimony or exhibits to depositions
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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

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this Order.

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(g)

the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or

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knew the 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 compels disclosure of any information or items
designated in this action as “CONFIDENTIAL,” that Party must:
(a)

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Such

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

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promptly notify in writing the Designating Party.

promptly notify in writing the party who caused the

subpoena or order to issue in the other litigation that some or all
of the material covered by the subpoena or order is subject to this
Order.

Such notification shall include a copy of this Order; and
(c)

cooperate with respect to all reasonable procedures

sought to be pursued by the Designating Party whose Protected
Material may be affected.
If the Designating Party timely seeks a protective order, the
Party served with the subpoena or court order shall not produce any
information designated in this action as “CONFIDENTIAL” before a
determination by the Court from which the subpoena or order issued,
unless the Party has obtained the Designating Party’s permission.
The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing
in these provisions should be construed as authorizing or encouraging
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a Receiving Party in this action to disobey a lawful directive from

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another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION

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(a)

produced by a Non-Party in this action and designated as
“CONFIDENTIAL.”

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relief provided by this Order.

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protections.
(b)

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In the event that a Party is required, by a valid

discovery request, to produce a Non-Party’s confidential information
in its possession, and the Party is subject to an agreement with the
Non-Party not to produce the Non-Party’s confidential information,
then the Party shall:
(1)

promptly notify in writing the Requesting Party and

the Non-Party that some or all of the information requested is
subject to a confidentiality agreement with a Non-Party;
(2)

promptly provide the Non-Party with a copy of the

Stipulated Protective Order in this litigation, the relevant
discovery request(s), and a reasonably specific description of the
information requested; and
(3)

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Nothing in these provisions should be

construed as prohibiting a Non-Party from seeking additional

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Such information produced by Non-Parties in

connection with this litigation is protected by the remedies and

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The terms of this Order are applicable to information

make the information requested available for

inspection by the Non-Party.
(c)

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

order from this Court within 14 days of receiving the notice and
accompanying information, the Receiving Party may produce the Non12

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Party’s confidential information responsive to the discovery request.

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

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shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before

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a determination by the Court.

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the Non-Party shall bear the burden and expense of seeking protection

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in this Court of its Protected Material.

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10.

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Absent a court order to the contrary,

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise,

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it has disclosed Protected Material to any person or in any

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circumstance not authorized under this Stipulated Protective Order,

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the Receiving Party must immediately (a) notify in writing the

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

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efforts to retrieve all unauthorized copies of the Protected

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Material, (c) inform the person or persons to whom unauthorized

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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

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to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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When a Producing Party gives notice to Receiving Parties that
certain inadvertently produced material is subject to a claim of
privilege or other protection, the obligations of the Receiving
Parties are those set forth in Federal Rule of Civil Procedure
26(b)(5)(B).

This provision is not intended to modify whatever

procedure may be established in an e-discovery order that provides
for production without prior privilege review.

Pursuant to Federal

Rule of Evidence 502(d) and (e), insofar as the parties reach an
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agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court.

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12.

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MISCELLANEOUS
12.1 Right to Further Relief.

Nothing in this Order abridges

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the right of any person to seek its modification by the court in the

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future.

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12.2 Right to Assert Other Objections.

By stipulating to the

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entry of this Order no Party waives any right it otherwise would have

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to object to disclosing or producing any information or item on any

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ground not addressed in this Order.

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right to object on any ground to use in evidence of any of the

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material covered by this Order.

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12.3 Filing Protected Material.

Similarly, no Party waives any

Without written permission from

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the Designating Party or a court order secured after appropriate

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notice to all interested persons, a Party may not file in the public

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record in this action any Protected Material.

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file under seal any Protected Material must comply with Civil Local

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Rule 79-5.2.2.

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pursuant to a court order authorizing the sealing of the specific

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Protected Material at issue.

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(a)(ii), a sealing order will issue only upon a showing of good cause

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why the strong presumption of public access in civil cases should not

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be overcome.

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Material under seal pursuant to Civil Local Rule 79-5, then the

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Protective Material may be filed in the public record unless

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otherwise instructed by the Court.

A Party that seeks to

Protected Material may only be filed under seal

Pursuant to Civil Local Rule 79-5.2.2

If the Court denies a request to file Protected

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as

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defined in paragraph 4, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material.

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As used in this subdivision, “all Protected Material” includes all

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

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reproducing or capturing any of the Protected Material.

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Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not

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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

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Protected Material that was returned or destroyed and (2) affirms

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that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing

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any of the Protected Material.

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Counsel are entitled to retain an archival copy of all pleadings,

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motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work

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product, even if such materials contain Protected Material.

Whether the

Notwithstanding this provision,

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Any such

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archival copies that contain or constitute Protected Material remain

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subject to this Protective Order as set forth in Section 4

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(DURATION).

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Dated: November 29, 2016
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UNITED STATES DISTRICT JUDGE

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Presented by:

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EILEEN M. DECKER
United States Attorney
LAWRENCE S. MIDDLETON
Assistant United States Attorney
Chief, Criminal Division
STEVEN R. WELK
Assistant United States Attorney
Chief, Asset Forfeiture Section

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/s/ Frank Kortum
FRANK D. KORTUM
Assistant United States Attorney

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Attorney for Plaintiff
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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],

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of _________________________________________________________________

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

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have read in its entirety and understand the Stipulated Protective

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Order that was issued by the United States District Court for the

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Central District of California on October 20, 2016 in the case of

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U.S. v. $45,357.00 in U.S. Currency; CV 15-09989-DMG (AJWx).

I agree

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to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of

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contempt.

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any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the

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provisions of this Order.

I solemnly promise that I will not disclose in any manner

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I further agree to submit to the jurisdiction of the United

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States District Court for the Northern District of California for the

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purpose of enforcing the terms of this Stipulated Protective Order,

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even if such enforcement proceedings occur after termination of this

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action.

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I hereby appoint _____________________ [print or type full name]

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of __________________________________________________________________

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

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agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective

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Order.

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Date: ___________________________

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City and State where sworn and signed:

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______________________________________

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Printed name: _______________________________

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Signature: __________________________________

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