Wesley Sinnathamby v. Michael Duane Inscore et al

Filing 63

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. re Objection/Opposition (Motion related), 61 (vm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WESLEY SINNATHMBY, Plaintiff, 12 v. 13 14 MICHAEL DUANE INSCORE et al., Defendant. 16 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER (MRW VERSION 4/19) 15 17 Case No. 2:20-cv-08930-DSFMRWx 1. Check if submitted without material modifications to MRW form INTRODUCTION 1.1 PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 1 that this Stipulated Protective Order does not entitle them to file confidential 2 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 3 followed and the standards that will be applied when a party seeks permission from 4 the court to file material under seal. 5 1.2 GOOD CAUSE STATEMENT 6 Plaintiff has engaged in a series of breach of contract / fraudulent real estate 7 and financial transactions in the Rosarito area of Baja California, one of which is 8 involved in this action, but all of which involve intertwining and overlapping – but in 9 other respects distinct -- events and parties, including an Mexican Indian Tribe. The 10 transactions involve both the real property contracts and negotiations, and the 11 development contracts and buildout of the involved real property. Also involved are 12 other real properties and developments which are subject to ongoing complex, 13 sensitive negotiations involving some of the same parties, including some involved 14 parties who were initially named as Mexican domiciled defendants, have now been 15 dismissed solely because of their foreign domicile and Plaintiff’s foreign domicile. 16 The financial records involved are those typically covered by financial 17 privacy laws. Further, private inside information on these transactions – reflecting 18 Plaintiff’s business plans and investment thinking – from each real property and 19 development investment would be extremely valuable to the parties involved in other 20 real property and development properties. 21 Plaintiff is prepared to give substantial discovery which will entail both (a) the 22 immediate real property and development transactional documents and financial 23 documentation, involving hundreds of thousands of dollars, and (b) all of the related 24 real property and development transactional documents and financial documentation, 25 also involving similar sums of capital. Significant subjects of dispute in this action 26 involve the nature and extent to which (a) Defendant Michael Inscore is himself 27 involved with the other mentioned parties and now non-parties, and (b) the 28 2 1 relationship of this transaction with other similar ones with the aforementioned parties 2 and non-parties. 3 Submission of the broadest scope of discovery – in some respects beyond that 4 which Inscore is seeking in currently pending discovery -- would ensure adequate 5 notice to Inscore Defendants of Plaintiff’s related transactions and claims, for 6 litigation and possible settlement. But, in so doing, Plaintiff needs assurances unless 7 eventually needed for trial, etc., that the documents will not be shared with or 8 disclosed to any party outside of this litigation; nor used for any purpose other than 9 for this litigation; nor end up in public internet websites. 10 2. DEFINITIONS 11 2.1 Action: This pending federal law suit. 12 2.2 Challenging Party: a Party or Non-Party that challenges the designation 13 14 of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 15 how it is generated, stored or maintained) or tangible things that qualify for protection 16 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 17 Cause Statement. 18 19 20 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 21 items that it produces in disclosures or in responses to discovery as 22 “CONFIDENTIAL.” 23 2.6 Disclosure or Discovery Material: all items or information, regardless 24 of the medium or manner in which it is generated, stored, or maintained (including, 25 among other things, testimony, transcripts, and tangible things), that are produced or 26 generated in disclosures or responses to discovery in this matter. 27 28 3 2.7 1 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 2.8 4 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 2.9 7 8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 9 2.10 Outside Counsel of Record: attorneys who are not employees of a party 10 to this Action but are retained to represent or advise a party to this Action and have 11 appeared in this Action on behalf of that party or are affiliated with a law firm which 12 has appeared on behalf of that party, and includes support staff. 13 2.11 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 16 17 Discovery Material in this Action. 18 2.13 Professional Vendors: persons or entities that provide litigation support 19 services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 22 2.14 Protected Material: 23 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 24 25 from a Producing Party. 26 3. SCOPE 27 The protections conferred by this Stipulation and Order cover not only 28 Protected Material (as defined above), but also (1) any information copied or extracted 4 1 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 2 Protected Material; and (3) any testimony, conversations, or presentations by Parties 3 or their Counsel that might reveal Protected Material. Any use of Protected Material at trial will be governed by the orders of the trial 4 5 judge. This Order does not govern the use of Protected Material at trial. 6 4. DURATION 4.1 7 Even after final disposition of this litigation, the confidentiality 8 obligations imposed by this Order will remain in effect until a Designating Party 9 agrees otherwise in writing or a court order otherwise directs. Final disposition will 10 be deemed to be the later of (1) dismissal of all claims and defenses in this Action, 11 with or without prejudice; and (2) final judgment herein after the completion and 12 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 13 including the time limits for filing any motions or applications for extension of time 14 pursuant to applicable law. 15 5. 16 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 17 Each Party or Non-Party that designates information or items for protection under this 18 Order must take care to limit any such designation to specific material that qualifies 19 under the appropriate standards. The Designating Party must designate for protection 20 only those parts of material, documents, items, or oral or written communications that 21 qualify so that other portions of the material, documents, items, or communications 22 for which protection is not warranted are not swept unjustifiably within the ambit of 23 this Order. 24 Mass, indiscriminate, or routinized designations are prohibited. Designations 25 that are shown to be clearly unjustified or that have been made for an improper 26 purpose (e.g., to unnecessarily encumber the case development process or to impose 27 unnecessary expenses and burdens on other parties) may expose the Designating Party 28 to sanctions. 5 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 7 under this Order must be clearly so designated before the material is disclosed or 8 produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic documents, 11 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 12 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 13 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 14 portion or portions of the material on a page qualifies for protection, the Producing 15 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 16 markings in the margins). 17 A Party or Non-Party that makes original documents available for 18 inspection need not designate them for protection until after the inspecting Party has 19 indicated which documents it would like copied and produced. During the inspection 20 and before the designation, all of the material made available for inspection will be 21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 22 it wants copied and produced, the Producing Party must determine which documents, 23 or portions thereof, qualify for protection under this Order. Then, before producing 24 the specified documents, the Producing Party must affix the “CONFIDENTIAL 25 legend” to each page that contains Protected Material. If only a portion or portions 26 of the material on a page qualifies for protection, the Producing Party also must clearly 27 identify the protected portion(s) (e.g., by making appropriate markings in the 28 margins). 6 1 (b) for testimony given in depositions that the Designating Party identify the 2 Disclosure or Discovery Material on the record, before the close of the deposition all 3 protected testimony. 4 (c) for information produced in some form other than documentary and for any 5 other tangible items, that the Producing Party affix in a prominent place on the exterior 6 of the container or containers in which the information 7 “CONFIDENTIAL.” If only a portion or portions of the information warrants 8 protection, the Producing Party, to the extent practicable, will identify the protected 9 portion(s). 5.3 10 is stored the legend Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive the 12 Designating Party’s right to secure protection under this Order for such material. 13 Upon timely correction of a designation, the Receiving Party must make reasonable 14 efforts to assure that the material is treated in accordance with the provisions of this 15 Order. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 17 Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 6.2 20 Meet and Confer. The Challenging Party will initiate the dispute 21 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 22 et seq. 23 6.3 The burden of persuasion in any such challenge proceeding will be on 24 the Designating Party. Frivolous challenges, and those made for an improper purpose 25 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 26 expose the Challenging Party to sanctions. Unless the Designating Party has waived 27 or withdrawn the confidentiality designation, all parties will continue to afford the 28 7 1 material in question the level of protection to which it is entitled under the Producing 2 Party’s designation until the Court rules on the challenge. 3 7. 4 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 5 disclosed or produced by another Party or by a Non-Party in connection with this 6 Action only for prosecuting, defending, or attempting to settle this Action. Such 7 Protected Material may be disclosed only to the categories of persons and under the 8 conditions described in this Order. When the Action has been terminated, a Receiving 9 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a 11 location and in a secure manner that ensures that access is limited to the persons 12 authorized under this Order. 13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 14 otherwise ordered by the court or permitted in writing by the Designating Party, a 15 Receiving 16 “CONFIDENTIAL” only to: Party may disclose any information or item designated 17 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 18 as employees of said Outside Counsel of Record to whom it is reasonably necessary 19 to disclose the information for this Action; 20 21 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; 22 (c) Experts (as defined in this Order) of the Receiving Party to whom 23 disclosure is reasonably necessary for this Action and who have signed the 24 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (d) the Court and its personnel; 26 (e) court reporters and their staff; 27 28 8 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 4 5 custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses ,and attorneys for witnesses, in the 7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 8 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will 9 not be permitted to keep any confidential information unless they sign the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 11 agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material may be 13 separately bound by the court reporter and may not be disclosed to anyone except as 14 permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 15 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 18 PRODUCED IN OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL,” that Party must: 22 23 (a) promptly notify in writing the Designating Party. Such notification will include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order 25 to issue in the other litigation that some or all of the material covered by the subpoena 26 or order is subject to this Protective Order. Such notification will include a copy of 27 this Stipulated Protective Order; and 28 9 (c) cooperate with respect to all reasonable procedures sought to be pursued 1 2 by the Designating Party whose Protected Material may be affected. 3 If the Designating Party timely seeks a protective order, the Party served with 4 the subpoena or court order will not produce any information designated in this action 5 as “CONFIDENTIAL” before a determination by the court from which the subpoena 6 or order issued, unless the Party has obtained the Designating Party’s permission. The 7 Designating Party will bear the burden and expense of seeking protection in that court 8 of its confidential material and nothing in these provisions should be construed as 9 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 10 directive from another court. 11 9. 12 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 13 (a) The terms of this Order are applicable to information produced by a 14 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 15 produced by Non-Parties in connection with this litigation is protected by the 16 remedies and relief provided by this Order. Nothing in these provisions should be 17 construed as prohibiting a Non-Party from seeking additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, to 19 produce a Non-Party’s confidential information in its possession, and the Party is 20 subject to an agreement with the Non-Party not to produce the Non-Party’s 21 confidential information, then the Party will: 22 (1) promptly notify in writing the Requesting Party and the Non-Party 23 that some or all of the information requested is subject to a confidentiality agreement 24 with a Non-Party; 25 (2) promptly provide the Non-Party with a copy of the Stipulated 26 Protective Order in this Action, the relevant discovery request(s), and a reasonably 27 specific description of the information requested; and 28 10 (3) make the information requested available for inspection by the Non- 1 2 Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court within 4 14 days of receiving the notice and accompanying information, the Receiving Party 5 may produce the Non-Party’s confidential information responsive to the discovery 6 request. If the Non-Party timely seeks a protective order, the Receiving Party will not 7 produce any information in its possession or control that is subject to the 8 confidentiality agreement with the Non-Party before a determination by the court. 9 Absent a court order to the contrary, the Non-Party will bear the burden and expense 10 of seeking protection in this court of its Protected Material. 11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 13 Protected Material to any person or in any circumstance not authorized under this 14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 17 persons to whom unauthorized disclosures were made of all the terms of this Order, 18 and (d) request such person or persons to execute the “Acknowledgment and 19 Agreement to Be Bound” that is attached hereto as Exhibit A. 20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 21 PROTECTED MATERIAL 22 When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other protection, 24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 26 may be established in an e-discovery order that provides for production without prior 27 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 28 parties reach an agreement on the effect of disclosure of a communication or 11 1 information covered by the attorney-client privilege or work product protection, the 2 parties may incorporate their agreement in the stipulated protective order submitted 3 to the court. 4 12. 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 5 6 MISCELLANEOUS person to seek its modification by the Court in the future. 7 12.2 Right to Assert Other Objections. By stipulating to the entry of this 8 Protective Order no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in this 10 Stipulated Protective Order. Similarly, no Party waives any right to object on any 11 ground to use in evidence of any of the material covered by this Protective Order. 12 12.3 Filing Protected Material. A Party that seeks to file under seal any 13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 14 only be filed under seal pursuant to a court order authorizing the sealing of the specific 15 Protected Material at issue. If a Party's request to file Protected Material under seal 16 is denied by the court, then the Receiving Party may file the information in the public 17 record unless otherwise instructed by the court. 18 13. FINAL DISPOSITION 19 After the final disposition of this Action, as defined in paragraph 4, within 60 20 days of a written request by the Designating Party, each Receiving Party must return 21 all Protected Material to the Producing Party or destroy such material. As used in this 22 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 23 summaries, and any other format reproducing or capturing any of the Protected 24 Material. Whether the Protected Material is returned or destroyed, the Receiving 25 Party must submit a written certification to the Producing Party (and, if not the same 26 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 27 (by category, where appropriate) all the Protected Material that was returned or 28 destroyed and (2) affirms that the Receiving Party has not retained any copies, 12 1 abstracts, compilations, summaries or any other format reproducing or capturing any 2 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 3 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 4 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 5 reports, attorney work product, and consultant and expert work product, even if such 6 materials contain Protected Material. Any such archival copies that contain or 7 constitute Protected Material remain subject to this Protective Order as set forth in 8 Section 4 (DURATION). 9 14. Any willful violation of this Order may be punished by civil or criminal 10 contempt proceedings, financial or evidentiary sanctions, reference to disciplinary 11 authorities, or other appropriate action at the discretion of the Court. 12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 13 DATED: November 17, 2021 /s/ Meir J. Westreich 14 ______________________________ Attorney for Plaintiff 15 16 17 DATED: November 17, 2021 18 ______________________________ Attorney for Defendants 19 20 21 22 23 24 25 26 27 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. DATED: 11/18/2021 __________________________________ HON. MICHAEL R. WILNER United States Magistrate Judge 28 13 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 ________________________________________________________[full address], 6 declare under penalty of perjury that I have read in its entirety and understand the 7 Stipulated Protective Order that was issued by the United States District Court for the 8 Central District of California on [date] in the case of ___________ [insert case name 9 and number]. I agree to comply with and to be bound by all the terms of this 10 Stipulated Protective Order and I understand and acknowledge that failure to so 11 comply could expose me to sanctions and punishment in the nature of contempt. I 12 solemnly promise that I will not disclose in any manner any information or item that 13 is subject to this Stipulated Protective Order to any person or entity except in strict 14 compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ [full 19 name] of _______________________________________ [full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 Date: ______________________________________ 24 City and State where signed: _________________________________ 25 26 Printed name: _______________________________ 27 28 Signature: __________________________________ 14

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