In Re Application of South Pacific Petroleum Corporation

Filing 11

PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 10 . 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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IN RE APPLICATION OF SOUTH
PACIFIC PETROLEUM
CORPORATION, A GUAM
CORPORATION, PURSUANT TO
28 U.S.C. §1782 FOR THE
TAKING OF DISCOVERY FOR
USE IN FOREIGN PROCEEDING,

Case No. CV 2:17-MC-100

JOINT STIPULATED PROTECTIVE
ORDER

Applicant.

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IT IS HEREBY STIPULATED by Applicant South Pacific Petroleum

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Corporation and third party Richard B.C. Lee, by and through their respective

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attorneys of record, that discovery of confidential, proprietary, or private

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information will be had on the following terms and conditions:

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1.

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A.

PURPOSES AND LIMITATIONS

As the parties have represented that discovery in this action is likely to

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involve production of confidential, proprietary, or private information for which

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

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prosecuting this litigation may be warranted, this Court enters the following

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Protective Order. This Order does not confer blanket protections on all disclosures

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CASE NO. CV 2:17-MC-100
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or responses to discovery. The protection it affords from public disclosure and use

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extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles. Further, as set forth in Section 12.3,

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below, this Protective Order does not entitle the parties to file confidential

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information under seal. Rather, when the parties seek permission from the court to

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file material under seal, the parties must comply with Civil Local Rule 79-5 and

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with any pertinent orders of the assigned District Judge and Magistrate Judge.

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B.

GOOD CAUSE STATEMENT

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In light of the nature of the claims and allegations in this case and the

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parties’ representations that discovery in this case will involve the production of

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confidential records, and in order to expedite the flow of information, to facilitate

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the prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential, to

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ensure that the parties are permitted reasonable necessary uses of such material in

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connection with this action, to address their handling of such material at the end of

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the litigation, and to serve the ends of justice, a protective order for such

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information is justified in this matter. The parties shall not designate any

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information/documents as confidential without a good faith belief that such

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information/documents have been maintained in a confidential, non-public manner,

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and that there is good cause or a compelling reason why it should not be part of the

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public record of this case.

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2.

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DEFINITIONS
2.1

Action: The instant action: In re Application of South Pacific

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Petroleum Corporation, a Guam corporation, pursuant to 28 U.S.C. §1782 for the

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taking of discovery for use in foreign proceeding, Case No. 2:17-MC-100 in the

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Central District of California.

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2.2

Foreign Action: The foreign proceeding for which discovery is

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sought: Case No. 2015 Gahap 514235, Claim for Redemption of Convertible

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Bonds in Seoul High Court in the Republic of Korea.

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2.3

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

designation of information or items under this Order.
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“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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2.5

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
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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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2.7

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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2.8

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

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as an expert witness or as a consultant in this Action.

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House Counsel: attorneys who are employees of a party to this Action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.10 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
2.11 Outside Counsel of Record: attorneys who are not employees of a
party to this Action but are retained to represent or advise a party to this Action
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and have appeared in this Action on behalf of that party or are affiliated with a law

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firm which has appeared on behalf of that party, and includes support staff.
2.12 Party: any party to this Action, including all of its officers, directors,

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

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

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Discovery Material in this Action.

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2.14 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.
2.15 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL.”
2.16 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

SCOPE
The protections conferred by this Order cover not only Protected Material

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

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

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

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Parties or their Counsel that might reveal Protected Material, other than during a

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court hearing or at trial.
Any use of Protected Material during a court hearing or at trial shall be

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governed by the orders of the presiding judge. This Order does not govern the use

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of Protected Material during a court hearing or at trial.

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4.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

imposed by this Order shall remain in effect until a Designating Party agrees
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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in the Action or

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Foreign Action, with or without prejudice; and (2) final judgment herein after the

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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of

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this Action or the Foreign Action, including the time limits for filing any motions

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or applications for extension of time pursuant 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 Protection.

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.
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Designation in conformity with this Order requires:
a. (a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions), that the Producing Party affix

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at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL

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legend”), to each page that contains protected material. If only a portion or portions

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

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

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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

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

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only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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b. (b) for testimony given in depositions in this Action, that the

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Designating Party designate protected testimony in a timely manner. The

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Designating Party may designate the testimony as a whole or identify specific

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portions of the testimony during the deposition as “CONFIDENTIAL.” If the

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Designating Party that sponsors, offers, or gives testimony does not identify

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portions of the testimony that qualify as “CONFIDENTIAL” or incorrectly

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identifies portions of the testimony as “CONFIDENTIAL” during the deposition, it

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may, within 30 days of receiving a transcript of the deposition, designate or change
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the confidentiality designation of the transcript or portions thereof to identify the

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specific portions of the testimony as to which protection is sought.
c. (c) for information produced in some form other than documentary

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

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

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

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information warrants protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).
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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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The burden of persuasion in any such challenge proceeding shall be

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on 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 or the

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Foreign Action. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the Action has

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been terminated, a Receiving Party must comply with the provisions of Section 13

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below.

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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

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

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necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this Action;

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(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

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

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the Action to whom disclosure is reasonably necessary provided: (1) the deposing

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party requests that the witness sign the “Acknowledgment and Agreement to Be

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Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to

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keep any confidential information unless they sign the “Acknowledgment and

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Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed by the

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

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testimony or exhibits to depositions that reveal Protected Material may be

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

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as permitted under this Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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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 unless prohibited by law;
(b) promptly notify in writing the party who caused the subpoena or

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

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

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include a copy of this Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

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

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

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

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

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permission, or unless otherwise required by the law or court order. The

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

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court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by

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a Non-Party in this Action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is protected

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b) In the event that a Party is required, by a valid discovery request,

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to produce a Non-Party’s confidential information in its possession, and the Party

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is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-

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

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agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Protective

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Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3) make the information requested available for inspection by the

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Non-Party, if requested.
(c) If a Non-Party represented by counsel fails to commence the

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process called for by Local Rules 45-1 and 37-1, et seq. within 14 days of

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receiving the notice and accompanying information or fails contemporaneously to

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notify the Receiving Party that it has done so, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If an

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unrepresented Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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

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not produce any information in its possession or control that is subject to the

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

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unless otherwise required by the law or court order. Absent a court order to the

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

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this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this 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

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as

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Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or

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work product protection, the parties may incorporate their agreement into this

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Protective Order.

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12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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MISCELLANEOUS

person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. No Party waives any right it

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otherwise would have to object to disclosing or producing any information or item

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on any ground not addressed in this Protective Order. Similarly, no Party waives

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

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by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5 and with any pertinent

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orders of the assigned District Judge and Magistrate Judge. If a Party's request to

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file Protected Material under seal is denied by the court, then the Receiving Party

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may file the information in the public record unless otherwise instructed by the

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court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4, within 60

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days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60 day deadline that

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

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

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

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

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

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4.

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14.

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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STIPULATED and AGREED to as of the dates indicated below.

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Dated: November 29, 2017

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Any violation of this Order may be punished by any and all appropriate

Daar & Newman PC
By: ______________/s/__________________
Jeffery Daar
Attorneys for Applicant, South Pacific
Petroleum Corporation
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Dated: November 29, 2017

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CROWELL & MORING LLP
By: ______________/s/___________________
Raija J. Horstman
Attorneys for Third Party, Richard B.C. Lee

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ORDER

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PURSUANT TO STIPULATION OF THE PARTIES AND GOOD CAUSE

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THEREFOR, IT IS SO ORDERED.

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DATED: November 30, 2017

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__________/s/_______________
Honorable Jacqueline Chooljian
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_____________________________

[print

or

type

full

name],

of

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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 Protective Order that was issued

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by the United States District Court for the Central District of California on

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November 30, 2017 in the case of In re Application of South Pacific Petroleum

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Corporation, a Guam corporation, pursuant to 28 U.S.C. §1782 for the taking of

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discovery for use in foreign proceeding, Case No. 2:17-MC-100. I agree to comply

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

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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 Protective Order to any

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

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

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

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

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this action. I hereby appoint __________________________ [print or type full

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name] of _______________________________________ [print or type full

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address and telephone number] as my California agent for service of process in

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connection with this action or any proceedings related to enforcement of this

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Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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