Fund Recovery Services LLC v. Shoreside SPV Funding I, LLC et al

Filing 106

PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 101 . See order for details. (hr)

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1 2 3 4 5 6 7 8 9 10 11 Jeffrey M. Goldman (State Bar No. 233840) Luke N. Eaton (State Bar No. 280387) PEPPER HAMILTON LLP 4 Park Plaza, Suite 1200 Irvine, California 92614 Telephone: 949.567.3500 Fax: 949.863.0151 Angelo A. Stio III (admitted pro hac vice) PEPPER HAMILTON LLP Suite 400 301 Carnegie Center Princeton, New Jersey 08543-5276 Telephone: 609.951.4125 Fax: 609.452.1147 Attorneys for Plaintiff Fund Recovery Services LLC UNITED STATES DISTRICT COURT 12 FOR THE CENTRAL DISTRICT OF CALIFORNIA 13 WESTERN DIVISION 14 15 FUND RECOVERY SERVICES LLC, Plaintiff, 16 17 18 19 20 21 22 23 v. SHORESIDE SPV FUNDING I, LLC; SHORESIDE LOANS, LLC; DYLAN C. COHEN; RICHARD COHEN; NANCY COHEN; KATHY COHEN; SHORESIDE SPV FUNDING II, LLC; SHORESIDE CAPITAL, LLC; FPH CAPITAL PARTNERS, NAVIN NARANG, BRAD BARLOW, JOHN or JANE DOES, 1 through 10, and ABC CORPORATIONS, 1 through 10, Defendants. Electronically Filed Case No. 2:16-cv-06954-SJO-JC Honorable James Otero Crtrm.: Courtroom 10C ORDER GRANTING STIPULATED PROTECTIVE ORDER Original Verified Complaint Filed: September 15, 2016 Assigned to: Hon. S. James Otero Magistrate Judge: Hon. Jacqueline Chooljian 24 25 26 27 The Court, having reviewed the parties’ Stipulated Protective Order, hereby ENTERS the following Protective Order: 28 1 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 1. A. PURPOSES AND LIMITATIONS 2 As the parties have represented that discovery in this action is likely to 3 involve production of confidential, proprietary, or private information for which 4 special protection from public disclosure and from use for any purpose other than 5 prosecuting this litigation may be warranted, this Court enters the following 6 Protective Order. This Order does not confer blanket protections on all disclosures 7 or responses to discovery. The protection it affords from public disclosure and use 8 extends only to the limited information or items that are entitled to confidential 9 treatment under the applicable legal principles. Further, as set forth in Section 12.3, 10 below, this Protective Order does not entitle the parties to file confidential 11 information under seal. Rather, when the parties seek permission from the court to 12 file material under seal, the parties must comply with Civil Local Rule 79-5 and 13 with any pertinent orders of the assigned District Judge and Magistrate Judge. 14 B. GOOD CAUSE STATEMENT 15 In light of the nature of the claims and allegations in this case and the parties’ 16 representations that discovery in this case will involve the production of 17 confidential records, and in order to expedite the flow of information, to facilitate 18 the prompt resolution of disputes over confidentiality of discovery materials, to 19 adequately protect information the parties are entitled to keep confidential, to 20 ensure that the parties are permitted reasonable necessary uses of such material in 21 connection with this action, to address their handling of such material at the end of 22 the litigation, and to serve the ends of justice, a protective order for such 23 information is justified in this matter. The parties shall not designate any 24 information/documents as confidential without a good faith belief that such 25 information/documents have been maintained in a confidential, non-public manner, 26 and that there is good cause or a compelling reason why it should not be part of the 27 public record of this case. 28 2 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 2. DEFINITIONS 2 2.1 Action: The instant action: Case No. 2:16-cv-06954-SJO-JC. 3 2.2 Challenging Party: a Party or Non-Party that challenges the 4 5 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 6 how it is generated, stored or maintained) or tangible things that qualify for 7 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 8 the Good Cause Statement. 9 10 11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 12 items that it produces in disclosures or in responses to discovery as 13 “CONFIDENTIAL.” 14 2.6 Disclosure or Discovery Material: all items or information, regardless 15 of the medium or manner in which it is generated, stored, or maintained (including, 16 among other things, testimony, transcripts, and tangible things), that are produced 17 or generated in disclosures or responses to discovery in this matter. 18 2.7 Expert: a person with specialized knowledge or experience in a matter 19 pertinent to the litigation who has been retained by a Party or its counsel to serve as 20 an expert witness or as a consultant in this Action. 21 2.8 House Counsel: attorneys who are employees of a party to this Action. 22 House Counsel does not include Outside Counsel of Record or any other outside 23 counsel. 24 25 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 26 2.10 Outside Counsel of Record: attorneys who are not employees of a 27 party to this Action but are retained to represent or advise a party to this Action and 28 have appeared in this Action on behalf of that party or are affiliated with a law firm 3 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 which has appeared on behalf of that party, and includes support staff. 2 2.11 Party: any party to this Action, including all of its officers, directors, 3 employees, consultants, retained experts, and Outside Counsel of Record (and their 4 support staffs). 5 6 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 7 2.13 Professional Vendors: persons or entities that provide litigation 8 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 9 demonstrations, and organizing, storing, or retrieving data in any form or medium) 10 and their employees and subcontractors. 11 2.14 Protected Material: 12 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 13 2.15 Receiving Party: 14 Material from a Producing Party. 15 3. a Party that receives Disclosure or Discovery SCOPE 16 The protections conferred by this Order cover not only Protected Material (as 17 defined above), but also (1) any information copied or extracted from Protected 18 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 19 and (3) any deposition testimony, conversations, or presentations by Parties or their 20 Counsel that might reveal Protected Material, other than during a court hearing or at 21 trial. 22 Any use of Protected Material during a court hearing or at trial shall be 23 governed by the orders of the presiding judge. This Order does not govern the use 24 of Protected Material during a court hearing or at trial. 25 4. DURATION 26 Even after final disposition of this litigation, the confidentiality obligations 27 imposed by this Order shall remain in effect until a Designating Party agrees 28 otherwise in writing or a court order otherwise directs. Final disposition shall be 4 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 2 with or without prejudice; and (2) final judgment herein after the completion and 3 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 4 including the time limits for filing any motions or applications for extension of time 5 pursuant to applicable law. 6 5. 7 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection under 9 this Order must take care to limit any such designation to specific material that 10 qualifies under the appropriate standards. The Designating Party must designate for 11 protection only those parts of material, documents, items, or oral or written 12 communications that qualify so that other portions of the material, documents, 13 items, or communications for which protection is not warranted are not swept 14 unjustifiably within the ambit of this Order. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations 16 that are shown to be clearly unjustified or that have been made for an improper 17 purpose (e.g., to unnecessarily encumber the case development process or to 18 impose unnecessary expenses and burdens on other parties) may expose the 19 Designating Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection, that Designating Party must 22 promptly notify all other Parties that it is withdrawing the inapplicable designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in 24 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 25 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 26 under this Order must be clearly so designated before the material is disclosed or 27 produced. 28 Designation in conformity with this Order requires: 5 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 (a) for information in documentary form (e.g., paper or electronic 2 documents, but excluding transcripts of depositions), that the Producing 3 Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 4 “CONFIDENTIAL legend”), to each page that contains protected material. 5 If only a portion or portions of the material on a page qualifies for protection, 6 the Producing Party also must clearly identify the protected portion(s) (e.g., 7 by making appropriate markings in the margins). 8 A Party or Non-Party that makes original documents available for inspection 9 need not designate them for protection until after the inspecting Party has indicated 10 which documents it would like copied and produced. During the inspection and 11 before the designation, all of the material made available for inspection shall be 12 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 13 documents it wants copied and produced, the Producing Party must determine 14 which documents, or portions thereof, qualify for protection under this Order. Then, 15 before producing the specified documents, the Producing Party must affix the 16 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 17 portion or portions of the material on a page qualifies for protection, the Producing 18 Party also must clearly identify the protected portion(s) (e.g., by making 19 appropriate markings in the margins). 20 (b) for testimony given in depositions that the Designating Party 21 identifies on the record, before the close of the deposition as protected 22 testimony. 23 (c) for information produced in some form other than documentary 24 and for any other tangible items, that the Producing Party affix in a 25 prominent place on the exterior of the container or containers in which the 26 information is stored the legend “CONFIDENTIAL.” If only a portion or 27 portions of the information warrants protection, the Producing Party, to the 28 extent practicable, shall identify the protected portion(s). 6 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 2 failure to designate qualified information or items does not, standing alone, waive 3 the Designating Party’s right to secure protection under this Order for such 4 material. Upon timely correction of a designation, the Receiving Party must make 5 reasonable efforts to assure that the material is treated in accordance with the 6 provisions of this Order. 7 6. 8 9 10 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court’s Scheduling Order. 11 12 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37-1 et seq. 13 6.3 The burden of persuasion in any such challenge proceeding shall be on 14 the Designating Party. Frivolous challenges, and those made for an improper 15 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 16 parties) may expose the Challenging Party to sanctions. Unless the Designating 17 Party has waived or withdrawn the confidentiality designation, all parties shall 18 continue to afford the material in question the level of protection to which it is 19 entitled under the Producing Party’s designation until the Court rules on the 20 challenge. 21 7. 22 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 23 disclosed or produced by another Party or by a Non-Party in connection with this 24 Action only for prosecuting, defending, or attempting to settle this Action. Such 25 Protected Material may be disclosed only to the categories of persons and under the 26 conditions described in this Order. When the Action has been terminated, a 27 Receiving Party must comply with the provisions of Section 13 below. 28 Protected Material must be stored and maintained by a Receiving Party at a 7 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 location and in a secure manner that ensures that access is limited to the persons 2 authorized under this Order. 3 4 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 5 otherwise ordered by the court or permitted in writing by the Designating Party, a 6 Receiving 7 “CONFIDENTIAL” only to: Party may disclose any information or item designated 8 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 9 well as employees of said Outside Counsel of Record to whom it is 10 reasonably necessary to disclose the information for this Action; 11 (b) the officers, directors, and employees (including House Counsel) 12 of the Receiving Party to whom disclosure is reasonably necessary for this 13 Action; 14 (c) Experts (as defined in this Order) of the Receiving Party to whom 15 disclosure is reasonably necessary for this Action and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (d) the court and its personnel; 18 (e) court reporters and their staff; 19 (f) professional jury or trial consultants, mock jurors, and Professional 20 Vendors to whom disclosure is reasonably necessary for this Action and who 21 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 22 A); 23 (g) the author or recipient of a document containing the information or 24 a custodian or other person who otherwise possessed or knew the 25 information; 26 (h) during their depositions, witnesses, and attorneys for witnesses, in 27 the Action to whom disclosure is reasonably necessary provided: (1) the 28 deposing party requests that the witness sign the “Acknowledgment and 8 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Agreement to Be Bound” form attached as Exhibit A hereto; and (2) they 2 will not be permitted to keep any confidential information unless they sign 3 the “Acknowledgment and Agreement to Be Bound” attached as Exhibit A, 4 unless otherwise agreed by the Designating Party or ordered by the court. 5 Pages of transcribed deposition testimony or exhibits to depositions that 6 reveal Protected Material may be separately bound by the court reporter and 7 may not be disclosed to anyone except as permitted under this Protective 8 Order; and 9 (i) any mediator or settlement officer, and their supporting personnel, 10 mutually agreed upon by any of the parties engaged in settlement 11 discussions. 12 8. 13 LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 14 If a Party is served with a subpoena or a court order issued in other litigation 15 that compels disclosure of any information or items designated in this Action as 16 “CONFIDENTIAL,” that Party must: 17 18 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order unless prohibited by law; 19 (b) promptly notify in writing the party who caused the subpoena or 20 order to issue in the other litigation that some or all of the material covered 21 by the subpoena or order is subject to this Protective Order. 22 notification shall include a copy of this Protective Order; and 23 Such (c) cooperate with respect to all reasonable procedures sought to be 24 pursued by the Designating Party whose Protected Material may be affected. 25 If the Designating Party timely seeks a protective order, the Party served with 26 the subpoena or court order shall not produce any information designated in this 27 action as “CONFIDENTIAL” before a determination by the court from which the 28 subpoena or order issued, unless the Party has obtained the Designating Party’s 9 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 permission, or unless otherwise required by the law or court order. 2 Designating Party shall bear the burden and expense of seeking protection in that 3 court of its confidential material and nothing in these provisions should be 4 construed as authorizing or encouraging a Receiving Party in this Action to disobey 5 a lawful directive from another court. 6 9. 7 LITIGATION The A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 8 (a) The terms of this Order are applicable to information produced by a Non- 9 Party in this Action and designated as “CONFIDENTIAL.” Such information 10 produced by Non-Parties in connection with this litigation is protected by the 11 remedies and relief provided by this Order. Nothing in these provisions should be 12 construed as prohibiting a Non-Party from seeking additional protections. 13 (b) In the event that a Party is required, by a valid discovery request, to 14 produce a Non-Party’s confidential information in its possession, and the Party is 15 subject to an agreement with the Non-Party not to produce the Non-Party’s 16 confidential information, then the Party shall: 17 (1) promptly notify in writing the Requesting Party and the Non-Party 18 that some or all of the information requested is subject to a confidentiality 19 agreement with a Non-Party; 20 (2) promptly provide the Non-Party with a copy of the Protective 21 Order in this Action, the relevant discovery request(s), and a reasonably 22 specific description of the information requested; and 23 (3) make the information requested available for inspection by the 24 Non-Party, if requested. 25 (c) If a Non-Party represented by counsel fails to commence the process 26 called for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the 27 notice and accompanying information or fails contemporaneously to notify the 28 Receiving Party that it has done so, the Receiving Party may produce the Non10 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Party’s confidential information responsive to the discovery request. 2 unrepresented Non-Party fails to seek a protective order from this court within 14 3 days of receiving the notice and accompanying information, the Receiving Party 4 may produce the Non-Party’s confidential information responsive to the discovery 5 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 6 not produce any information in its possession or control that is subject to the 7 confidentiality agreement with the Non-Party before a determination by the court 8 unless otherwise required by the law or court order. Absent a court order to the 9 contrary, the Non-Party shall bear the burden and expense of seeking protection in 10 this court of its Protected Material. 11 10. If an UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 13 Protected Material to any person or in any circumstance not authorized under this 14 Protective Order, the Receiving Party must immediately (a) notify in writing the 15 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 16 all unauthorized copies of the Protected Material, (c) inform the person or persons 17 to whom unauthorized disclosures were made of all the terms of this Order, and (d) 18 request such person or persons to execute the “Acknowledgment and Agreement to 19 Be Bound” that is attached hereto as Exhibit A. 20 11. 21 MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 22 When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other 24 protection, the obligations of the Receiving Parties are those set forth in Federal 25 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 26 whatever procedure may be established in an e-discovery order that provides for 27 production without prior privilege review. Pursuant to Federal Rule of Evidence 28 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 11 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 of a communication or information covered by the attorney-client privilege or work 2 product protection, the parties may incorporate their agreement into this Protective 3 Order. 4 12. 5 6 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 7 12.2 Right to Assert Other Objections. No Party waives any right it 8 otherwise would have to object to disclosing or producing any information or item 9 on any ground not addressed in this Protective Order. Similarly, no Party waives 10 any right to object on any ground to use in evidence of any of the material covered 11 by this Protective Order. 12 12.3 Filing Protected Material. A Party that seeks to file under seal any 13 Protected Material must comply with Civil Local Rule 79-5 and with any pertinent 14 orders of the assigned District Judge and Magistrate Judge. If a Party's request to 15 file Protected Material under seal is denied by the court, then the Receiving Party 16 may file the information in the public record unless otherwise instructed by the 17 court. 18 13. FINAL DISPOSITION 19 After the final disposition of this Action, as defined in Section 4, within 60 20 days of a written request by the Designating Party, each Receiving Party must 21 return all Protected Material to the Producing Party or destroy such material. As 22 used in this subdivision, “all Protected Material” includes all copies, abstracts, 23 compilations, summaries, and any other format reproducing or capturing any of the 24 Protected Material. Whether the Protected Material is returned or destroyed, the 25 Receiving Party must submit a written certification to the Producing Party (and, if 26 not the same person or entity, to the Designating Party) by the 60 day deadline that 27 (1) identifies (by category, where appropriate) all the Protected Material that was 28 returned or destroyed and (2) affirms that the Receiving Party has not retained any 12 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 copies, abstracts, compilations, summaries or any other format reproducing or 2 capturing any of the Protected Material. Notwithstanding this provision, Counsel 3 are entitled to retain an archival copy of all pleadings, motion papers, trial, 4 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 5 and trial exhibits, expert reports, attorney work product, and consultant and expert 6 work product, even if such materials contain Protected Material. Any such archival 7 copies that contain or constitute Protected Material remain subject to this Protective 8 Order as set forth in Section 4. 9 14. Any violation of this Order may be punished by any and all appropriate 10 measures including, without limitation, contempt proceedings and/or monetary 11 sanctions. 12 13 PURSUANT TO STIPULATION, IT IS SO ORDERED. 14 15 16 DATED: January 27, 2017 /s/ Hon. Jacqueline Chooljian United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 13 ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 2 EXHIBIT A 3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4 5 I, _____________________________ [print or type full name], of 6 _________________ [print or type full address], declare under penalty of perjury 7 that I have read in its entirety and understand the Protective Order that was issued 8 by the United States District Court for the Central District of California on January 9 27, 2017, in the case of Fund Recovery Services LLC v. Shoreside SPV Funding I, 10 LLC, et al. Case No. 2:16-cv-06954-SJO-JC, I agree to comply with and to be 11 bound by all the terms of this Protective Order and I understand and acknowledge 12 that failure to so comply could expose me to sanctions and punishment in the nature 13 of contempt. I solemnly promise that I will not disclose in any manner any 14 information or item that is subject to this Protective Order to any person or entity 15 except in strict compliance with the provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court 17 for the Central District of California for the purpose of enforcing the terms of this 18 Protective Order, even if such enforcement proceedings occur after termination of 19 this action. I hereby appoint __________________________ [print or type full 20 name] of _______________________________________ [print or type full 21 address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Protective Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 27 Printed name: _______________________________ 28 Signature: __________________________________ 14

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