Securities and Exchange Commission v. Thomas Miller et al

Filing 55

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 53 . (see order for details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,

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Case No. 2:17-cv-00897-CBM-RAO
STIPULATED [PROPOSED]
PROTECTIVE ORDER1

v.
THOMAS MILLER and WILLIAM
LIANG,
Defendants.

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A. PURPOSES AND LIMITATIONS

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Defendants believe that discovery in this action is likely to involve

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production of confidential, proprietary or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Plaintiff Securities and Exchange

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Commission (“SEC”) takes the position that when considering whether good cause

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for a protective order under Rule 26(c) exists, courts must weigh the presumption of

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openness of litigation materials against the asserted right of confidentiality. When

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This Stipulated Protective Order is substantially based on the model protective
order provided under Magistrate Judge Rozella A. Oliver’s Procedures.

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the government is a party to the litigation, those matters are of significant public

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concern which may often outweigh any competing interest in confidentiality.

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Nonetheless, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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

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

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

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legal principles.

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B. GOOD CAUSE STATEMENT
This action is likely to involve valuable commercial, financial, technical

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and/or proprietary information for which special protection from public disclosure

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and from use for any purpose other than prosecution of this action is warranted.

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Such confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development, or

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commercial information (including information implicating privacy rights of third

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parties), information otherwise generally unavailable to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal statutes,

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court rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of

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

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

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of such material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a protective order

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for such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in a

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confidential, non-public manner, and there is good cause why it should not be part
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of the public record of this case.

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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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

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Stipulated Protective Order does not create an entitlement or an obligation to file

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confidential information under seal; Local Civil Rule 79-5 sets forth the procedures

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that must be followed and the standards that will be applied when a party seeks

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permission from the court to file material under seal.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive motions,

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

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County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

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

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

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

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

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respect to Protected Material that a party seeks to file under seal. The parties’ mere

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designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

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without the submission of competent evidence by declaration, establishing that the

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material sought to be filed under seal qualifies as confidential, privileged, or

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otherwise protectable—constitute good cause.

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Further, if a party requests sealing related to a dispositive motion or trial,

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then compelling reasons, not only good cause, for the sealing must be shown, and

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the relief sought shall be narrowly tailored to serve the specific interest to be

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

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

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

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seeking protection must articulate compelling reasons, supported by specific facts

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and legal justification, for the requested sealing order. Again, competent evidence
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supporting the application to file documents under seal must be provided by

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declaration.

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Any document that is not confidential, privileged, or otherwise protectable in

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its entirety will not be filed under seal if the confidential portions can be redacted.

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If documents can be redacted, then a redacted version for public viewing, omitting

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only the confidential, privileged, or otherwise protectable portions of the document,

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

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

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2.

DEFINITIONS
2.1.

Action: Securities and Exchange Commission v. Thomas Miller, et

al., USDC Case No. 2:17-cv-00897-CBM-RAO.
2.2.

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

designation of information or items under this Order.
2.3.

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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

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the Good Cause Statement.

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2.4.

Counsel: attorneys who are retained or employed to represent or

advise a Party in this action (as well as their support staff).
2.5.

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

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

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“CONFIDENTIAL.”

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2.6.

Disclosure or Discovery Material: all items or information, regardless

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

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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2.7.

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this Action.

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2.8.

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

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2.9.

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

employees, consultants, retained experts, and Counsel (and their support staffs).

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

2.10. Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.11. Professional Vendors: persons or entities that provide litigation

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

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

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and their employees and subcontractors.

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

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2.13. Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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

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

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

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Protective Order do not cover the

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

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of disclosure to a Receiving Party or becomes part of the public domain after its

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disclosure to a Receiving Party as a result of publication not involving violation of
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this Protective Order, including becoming part of the public record through trial or

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otherwise; (b) any information known to the Receiving Party prior to the disclosure

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or obtained by the Receiving Party after the disclosure from a source who obtained

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the information lawfully and under no obligation of confidentiality to the

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Designating Party; and (c) any information that has come into the possession of a

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Receiving Party prior to the entry of this Protective Order.

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Notwithstanding any other provision contained herein, this Protective Order

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shall not limit or otherwise abrogate the ability and authority of Plaintiff Securities

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and Exchange Commission (“SEC”) to, without notifying the Designating Party:

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(1) use, disclose, or retain any amterials to the extent required by law; and/or (2)

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use or disclose any materials in a manner consistent with paragraphs 1-22 of

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Section H of SEC Form 1662 (the “Routine Uses of Information”), a copy of which

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is attached hereto as Exhibit B.

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION
Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order and then used or

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introduced as an exhibit at trial becomes public and will be presumptively available

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to all members of the public, including the press, unless compelling reasons

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supported by specific factual findings to proceed otherwise are made to the trial

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judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing

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“good cause” showing for sealing documents produced in discovery from

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“compelling reasons” standard when merits-related documents are part of court

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record). Accordingly, the terms of this protective order do not extend beyond the

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commencement of the trial as to all such information that becomes public.

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5.

DESIGNATING PROTECTED MATERIAL
5.1.

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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

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communications that qualify so that other portions of the material, documents,

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

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate or routinized designations are prohibited. Designations

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

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

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impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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

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

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

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5.2.

Manner and Timing of Designations. Except as otherwise provided in

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced in order for the protections conferred by this Protective Order to apply.

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Designation in conformity with this Order requires:

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

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

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion of the material on a page qualifies for
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protection, the Producing Party also must clearly identify the protected portion(s)

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

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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

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

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

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“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion of the material on a page qualifies for protection, the Producing Party also

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

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in the margins).

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(b) for testimony given in depositions, that the Designating Party

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identifies the Disclosure or Discovery Material on the record, before the close of

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the deposition all protected testimony.

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(c) for information produced in some form other than documentary and

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

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the exterior of the container or containers in which the information is stored the

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legend “CONFIDENTIAL.” If only a portion or portions of the information

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warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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the Designating Party’s right to secure protection under this Order for such

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

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

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provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

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

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2.

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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6.3.

The burden of persuasion in any such challenge proceeding shall be on

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the Designating Party. Frivolous challenges, and those made for an improper

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

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

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

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

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

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challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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

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

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

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

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

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
7.2.

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Counsel of Record in this Action, as well as

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employees of said Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;

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(b) the officers, directors, and employees of the Receiving Party to whom
disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided they will not be

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permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material may

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

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except as permitted under this Stipulated Protective Order;
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(i) potential witnesses interviewed by a Receiving Party’s counsel, in

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connection with the action to whom Counsel determines that disclosure is

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reasonably necessary provided they sign the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A). Potential witnesses may be shown information and

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documents designated “CONFIDENTIAL” for purposes of an interview but shall

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not be given a copy of such document(s) to keep permanently; and

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(j) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order; and
(b) promptly notify in writing the party who caused the subpoena or order

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

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

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include a copy of this Stipulated Protective Order.

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

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

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action as “CONFIDENTIAL” before a determination by the court from which the

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

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

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

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

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to disobey a lawful directive from another court.
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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a

Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
(b) 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:
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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;
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promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this Action, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
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make the information requested available for inspection by the

Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within
14 days of receiving the notice and accompanying information, the Receiving Party
may produce the Non-Party’s confidential information responsive to the discovery
request. If the Non-Party timely seeks a protective order, the Receiving Party shall
not produce any information in its possession or control that is subject to the
confidentiality agreement with the Non-Party before a determination by the court.
Absent a court order to the contrary, the Non-Party shall bear the burden and
expense of seeking protection in this court of its Protected Material.
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10.

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

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

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

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

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

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

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this Order, and (d) request such person or persons to execute the “Acknowledgment

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

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11.

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PROTECTED MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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 agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated
protective order submitted to the court.

12.

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.

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

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

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

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

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

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Order.

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12.3. Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Local Civil Rule 79-5. Protected Material

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

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specific Protected Material at issue. If a Party’s request to file Protected Material

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

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in the public record unless otherwise instructed by the court.

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Notwithstanding any other provision of this Protective Order, the SEC shall

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not be limited in its ability to share, disclose, or produce any information received

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in connection with this action with any other federal or state authority, agency, or

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department.

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13.

FINAL DISPOSITION
After the final disposition of this Action, within 60 days of a written request

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by the Designating Party, each Receiving Party must return all Protected Material to

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the Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and any

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other format reproducing or capturing any of the Protected Material. Whether the

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Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts,
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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

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

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constitute Protected Material remain subject to this Protective Order except as set

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forth in Section 4 (DURATION).

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Unlike private litigants, the SEC has separate and additional document

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retention obligations mandated by statutes, including, but not limited to, the

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following: (1) 18 U.S.C. §§ 641 and 2071; (2) 44 U.S.C. Chapters 21, 29, 31, and

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33; and (3) 36 C.F.R. Parts 1220-1239. As a result, Paragraph 13 shall not apply to

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any Protected Material in the possession of the SEC. In addition, nothing in this

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Protective Order shall restrict or limit the SEC from retaining any materials to the

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extent required by law. The SEC may retain any Protected Material should it or its

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staff determine that it should or must retain such information to fulfill its record-

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keeping obligations or any other obligation, or to carry out any permitted uses

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under the SEC’s Form 1662.

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VIOLATION
Any violation of this Order may be punished by appropriate measures

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including, without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: April 3, 2018

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SECURITIES AND EXCHANGE COMMISSION
By:

/s/ Gary Y. Leung
Gary Y. Leung
Attorneys for Plaintiff
SECURITIES AND EXCHANGE
COMMISSION

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Dated: April 3, 2018

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DRINKER BIDDLE & REATH LLP
By:

/s/ Erin E. McCracken
Sheldon Eisenberg
Mary P. Hansen (pro hac vice)
Erin E. McCracken
Marshall L. Baker
Attorneys for Defendant
THOMAS MILLER

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Dated: April 3, 2018

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MANATT PHELPS & PHILLIPS LLP
By:

/s/ John F. Libby
John F. Libby
Attorneys for Defendant
WILLIAM LIANG

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Attestation

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Pursuant to L.R. 5-4.3.4(a)(2)(i), I, Erin E. McCracken, attest that all

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signatories identified above, and on whose behalf the filing is submitted, concur in

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the filing’s content and have authorized the filing.

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//

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//

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//

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//
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1 Dated: April 3, 2018
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By:

/s/ Erin E. McCracken
Erin E. McCracken
Attorneys for Defendant
THOMAS MILLER

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DRINKER BIDDLE & REATH LLP

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: April 25, 2018

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________________________________
HONORABLE ROZELLA A. OLIVER
United States Magistrate Judge

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1

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,________________ [print or type full name], of

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

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

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

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on [date] in the case of ________________ [insert formal name of the case and

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the number and initials assigned to it by the court]. I agree to comply with and

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to be bound by all the terms of this Stipulated Protective Order and I understand

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and acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner 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 provisions of this

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Order.

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

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

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Protective Order, even if such enforcement proceedings occur after termination of

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this action.

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I hereby appoint________________[print or type full name] of

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

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

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proceedings related to enforcement of this Stipulated Protective Order.

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Date:________________

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City and State where sworn and signed:________________

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Printed name: ________________
Signature: ________________

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