United States of America v. 1003.58 Acres of Land More or Less et al

Filing 41

STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym. [NOTE CHANGE MADE BY THE COURT TO 11] (SEE ORDER FOR DETAILS). (kca)

1
2
3
4
5
6
7
8
9
10

EDWARD G. BURG (Bar No. CA 104258)
E-mail: [e-mail]
GEORGE M. SONEFF (Bar No. CA 117128)
E-mail: [e-mail]
VIRAL MEHTA (Bar No. CA 261852)
E-mail: [e-mail]
MANATT, PHELPS & PHILLIPS, LLP
11355 West Olympic Boulevard
Los Angeles, CA 90064-1614
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
Christopher W. Metcalf, Joseph P. Cordner,
Marialice Cordner, Scott R. Descher and
Anna R. Descher, as Trustees of the
Descher Family Trust, Hahm International, Inc.,
and Levand Steel & Supply Corporation

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13
14

UNITED STATES OF AMERICA,

15

Plaintiff,

16
17
18
19
20
21
22
23

vs.
1003.58 ACRES OF LAND,
MORE OR LESS, SITUATE IN
SAN BERNARDINO COUNTY,
CALIFORNIA, AND
CHRISTOPHER W. METCALF,
JOSEPH P. CORDNER,
MARIALICE CORDNER,
SCOTT R. DESCHER AND
ANNA R. DESCHER, TRUSTEES
OF THE DESCHER FAMILY
TRUST, et al.,

Case No. 5:16-cv-1014 VAP (SPx)
Hon. Sheri Pym rd
Courtroom 3/4 – 3 Floor
STIPULATED PROTECTIVE ORDER
Complaint Filed: May 17, 2016
Trial Date:
February 6, 2018
[NOTE CHANGE MADE BY THE
COURT TO ¶ 11]

Defendants.

24
25
26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

STIPULATED PROTECTIVE ORDER

1
2

STIPULATED PROTECTIVE ORDER
WHEREAS, Plaintiff United States of America (“Plaintiff”) and Defendants

3

Christopher W. Metcalf, Joseph P. Cordner, Marialice Cordner, and Scott R.

4

Descher and Anna R. Descher, as Trustees of the Descher Family Trust

5

(collectively, “Defendants”) possess information and materials relating to the

6

subject matter of this action that they maintain constitute trade secrets, proprietary

7

business information, or other confidential or private information, including private

8

information protected under state and federal statutes and/or private agreements.

9

WHEREAS, Defendants seek to control access to and the use of such

10

information and materials while allowing discovery of the same for the purpose of

11

conducting this litigation, and not for any other purpose outside the scope of this

12

litigation, including any business purpose.

13

WHEREAS, Plaintiff United States agrees to the entry of a Stipulated

14

Protective Order solely for the purpose of facilitating discovery. Plaintiff does not

15

stipulate to the confidential nature of any documents produced in accordance with

16

this Protective Order. It is incumbent upon the Defendant to establish the

17

confidential nature of each document produced in accordance with the terms of this

18

Protective Order set forth below. Plaintiff reserves the right to object to and/or

19

challenge the confidentiality of any document produced in accordance with this

20

Stipulated Protective Order.

21

NOW THEREFORE, the parties agree and stipulate, by and through their

22

respective counsel of record, subject to the aforementioned conditions, and subject

23

to the approval of the Court, and without waiving or forfeiting any claims or

24

defenses in the above-captioned action or any applicable privileges or protections,

25

and without acknowledging the propriety of any claim by any party that any

26

information produced during the course of discovery in this action constitutes

27

Confidential Information (as defined below), that in order to preserve any claim by

28

any party that information produced during discovery constitutes Confidential

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

1

STIPULATED PROTECTIVE ORDER

1

Information, this Stipulated Protective Order (“Protective Order”) shall govern

2

discovery in this action once such stipulation is signed by all the parties and entered

3

as an order of the Court, as follows:

4

1.

Any party or nonparty producing any documents, communications,

5

information, testimony, transcripts, or other tangible things (hereinafter

6

“Materials”) may designate such Materials as “Confidential Information” subject

7

to the terms set forth below.

8
9

2.

“Confidential Information” shall mean and refer to Materials that

have not been made public and the disclosure of which may cause harm to the

10

person or entity from which the Materials are obtained or a third party, including

11

but not limited to Materials that are considered in good faith to constitute or contain

12

trade secrets entitled to protection under Fed. R. Civ. P. 26(c); confidential

13

information, including private information protected under state and federal

14

statutes; or confidential or private business, commercial, proprietary, or technical

15

information. This shall in no way be construed to make confidential matters which

16

are (a) already known to the other party; (b) a matter of public record; or

17

(c) subsequently obtained from an independent non-confidential or non-privileged

18

source.

19

(a)

A designation of any Materials as Confidential Information by a

20

party shall constitute a certification to the Court and to the parties to the action that

21

such Materials are believed in good faith to be confidential within the meaning of

22

this Protective Order, and where applicable, that such designation is believed in

23

good faith to adequately protect privacy under applicable state and federal statutes

24

or private agreements.

25

(b)

Only Qualified Persons may view or receive Confidential

26

Information in accordance with this Protective Order. “Qualified Persons” shall

27

mean and refer to, and is expressly limited to:

28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

2

STIPULATED PROTECTIVE ORDER

1
2

i.

Counsel for any party to the action and their personnel,

including paralegals, clerical staff, secretarial staff and other support personnel;
ii.

3

The parties to this action, including their respective

4

agents, managers, accountants, officers, employees, shareholders and/or in-house

5

counsel.
iii.

6

Any persons who are authors, addressees or prior

7

recipients as set forth on the face of Materials designated as Confidential

8

Information;
iv.

9

Expert witnesses or consultants retained or employed by

10

the parties or their respective attorneys for purposes of this action who have

11

complied with Paragraph 3 below, and the personnel of such expert witnesses or

12

consultants;

13

v.

Any court presiding over this action and court personnel;

14

vi.

Court reporters, stenographers and videographers who are

15

retained to transcribe or videotape any depositions in this action;
vii.

16

Any arbitrators or mediators who are assigned or retained

17

to preside over any proceedings in this action, and the personnel of such arbitrators

18

or mediators;

19

viii. Third-party witnesses at any deposition or other pre-trial

20

proceeding in this action whose testimony necessitates the disclosure to the witness

21

of Confidential Information during the course of such testimony, and who have

22

complied with Paragraph 3 below;

23

ix.

Third-party witnesses who produce, whether voluntarily

24

or pursuant to subpoena or court order, any Materials that they deem to constitute or

25

contain Confidential Information, and who have complied with Paragraph 3 below;

26

x.

Professional vendors that provide litigation support

27

services, including but not limited to photocopying, videotaping, translation and

28

preparation of exhibits or demonstrations,; and

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

3

STIPULATED PROTECTIVE ORDER

1
2
3

xi.

Such other persons as the parties may designate by

written stipulation.
3.

Prior to receiving Materials designated as Confidential Information, all

4

Qualified Persons identified in Paragraphs 2(b)(iv), (viii), and (ix) shall be provided

5

with a copy of this Stipulated Protective Order and shall sign the Declaration and

6

Acknowledgment attached hereto as Exhibit A.

7

4.

The production of any Materials during discovery in this action shall

8

be without prejudice to any claim by any party that such Materials constitute

9

Confidential Information, and no party shall be deemed to have waived the right to

10

designate such Materials as Confidential Information after such production occurs.

11

5.

Whenever, during the course of discovery in this matter, a party or

12

non-party is requested or required to disclose Materials that it considers to

13

constitute or contain Confidential Information, that party shall designate such

14

Materials as Confidential Information or at or before the time of disclosure by

15

marking the Materials as such, placing some other similar designation thereon, or

16

indicating in some other appropriate fashion that the Materials are subject to this

17

Protective Order. A party’s or third party’s inadvertent failure to designate

18

Materials as Confidential Information shall not operate as waiver of that party’s or

19

third party’s right to subsequently designate such Materials as Confidential

20

Information.

21

(a)

A Confidential determination shall be marked on a page-by-

22

page basis on all above-listed items; documents shall not be deemed Confidential in

23

their entirety unless all pages of that document contain Confidential Information.

24

6.

All transcripts of depositions taken in this case shall automatically be

25

treated as Confidential Information for a period of 30 days after receipt of the

26

transcript. This 30-day period will begin to run the day after the transcript is

27

received by counsel for the party defending the deposition, and will conclude at the

28

end of the thirtieth consecutive day (including weekends and holidays). During this

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

4

STIPULATED PROTECTIVE ORDER

1

30-day period, or during any pending deposition proceeding, any party or third-

2

party deponent may designate a deposition transcript, or any portion thereof, as

3

Confidential Information. If any deposition transcript, or any portion thereof, is not

4

designated as Confidential Information during the deposition proceeding or by the

5

expiration of this 30-day period, that transcript or portion shall no longer be treated

6

as Confidential Information.

7

7.

Materials designated as Confidential Information shall be treated in

8

accordance with the terms of this Protective Order and shall be used by the parties,

9

their respective agents and any other persons to whom such Materials may be

10

disclosed only for purposes of litigating, prosecuting, or defending against this

11

action only, and for no other purposes, including any business purposes. Nothing in

12

this Protective Order shall prevent or limit the ability of any party or third party to

13

disclose Materials designated as Confidential Information that such party or third

14

party lawfully obtained independent of discovery in this action, whether or not such

15

Materials are also obtained through discovery in this action. Confidential

16

Information may be used at trial.

17

8.

If a party to this action or its counsel is served with a subpoena

18

requiring production of any Materials designated as Confidential Information,

19

counsel for the party receiving the subpoena shall so notify counsel for the

20

designating party in writing within five court days. The parties agree that the

21

designating party shall have five court days after receiving notice of a subpoena

22

requiring production of Materials designated as Confidential Information to object

23

to the subpoena or seek other appropriate relief. If a motion to quash the subpoena

24

is timely filed by the designating party, the subpoenaed party shall not produce the

25

Materials designated as Confidential Information until required to do so pursuant to

26

court order, or unless required to do so by other applicable law.

27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

9.

Any Materials designated as Confidential Information that are filed

with the Court shall be submitted for filing in a sealed envelope bearing the
5

STIPULATED PROTECTIVE ORDER

1

designation “Confidential: Subject to Protective Order,” together with a proposed

2

order, and shall otherwise comply with the requirements of Local Rule 79-5 and all

3

applicable orders of the Court. If the Court denies an application to file under seal

4

Materials designated as Confidential Information, the filing party shall be permitted

5

to file such Materials unsealed.

6

10.

If a party inadvertently produces or discloses Materials designated as

7

Confidential Information, or any Materials that are subject to a claim of attorney-

8

client privilege, common interest privilege or work-product immunity, the

9

producing party shall, upon discovering the error, promptly notify the receiving

10

party of the same. The receiving party shall immediately return to the producing

11

party all copies of such Materials, and shall return or destroy all excerpts and

12

summaries thereof. The return of such Materials shall not constitute an admission

13

or concession, or permit any inference, that the returned Materials in fact constitute

14

or contain Confidential Information, or are subject to a claim of attorney-client

15

privilege, common interest privilege, or work product immunity, or constitute a

16

waiver of the returning party’s right to challenge such designations. The

17

inadvertent disclosure of any Materials subject to the attorney-client privilege,

18

common interest privilege, or work product immunity shall not be deemed a waiver

19

of any such privileges or immunities, or a waiver of any party’s right to challenge

20

such privileges or immunities.

21

11.

The parties’ agreement to enter into this Protective Order is not

22

consent or admission regarding the confidentiality of any Materials. Should any

23

party seek to challenge the designation of any Materials as Confidential

24

Information, that party may object to the designation. The designating party must

25

then move the Court, in accordance with Local Rule 37, for an order approving

26

such designation and concluding that the Materials are governed by the provisions

27

of this Protective Order. The Court, upon notice to the parties and upon a showing

28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

6

STIPULATED PROTECTIVE ORDER

1

of good cause, may at any time order removal of a Confidential Information

2

designation from any Materials.
12.

3

Within sixty days after the termination of this action and the expiration

4

of the time for appeal or the final determination of any appeals, all originals and

5

copies of any Materials designated as Confidential Information shall either be

6

destroyed or returned to the party who produced such Materials at the option of the

7

Producing Party. In the event that the Materials are destroyed rather than returned,

8

a letter to that effect shall be provided to counsel for the designating party.

9

Notwithstanding this provision, counsel are entitled to retain one archival copy of

10

confidential information used at trial, during depositions or contained in settlement

11

agreements, settlement memoranda, hearing transcripts or documentation filed with

12

the Court.

13

13.

This Stipulated Protective Order shall be without prejudice to the

14

rights of the parties to present a motion to the Court, pursuant to Federal Rule of

15

Civil Procedure 26(c), for a separate protective order as to any document or

16

information imposing restrictions differing from those specified herein.
14.

17

This Stipulated Protective Order is intended to govern the exchange

18

and use of Materials during discovery, trial preparation, ADR, and post-trial

19

proceedings. Questions regarding the use of Materials designated as Confidential

20

Information during the trial in this action will be addressed by the Court at a later

21

time, as the Court deems appropriate.

22

///

23

///

24

///

25

///

26

///

27

///

28

///

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

7

STIPULATED PROTECTIVE ORDER

1
2
3

15.

Nothing in this Protective Order abridges the right of any party or third

party to seek to add to or modify the terms of this Protective Order in the future.
IT IS SO STIPULATED.

4
5

Dated: April 19, 2017

MANATT, PHELPS & PHILLIPS, LLP

6
By: /s/ Viral Mehta
Viral Mehta
Attorneys for Defendants
Christopher W. Metcalf, Joseph P. Cordner,
Marialice Cordner, Scott R. Descher and
Anna R. Descher, as Trustees of the
Descher Family Trust, Hahm International,
Inc., and Levand Steel & Supply Corporation

7
8
9
10
11
12
13

Dated: April 19, 2017

14

UNITED STATES DEPT. OF JUSTICE
By: /s/ Bhavna Changrani
Bhavna Changrani
Benjamin J. Grillot
Attorneys for Plaintiff
United States of America

15
16
17
18
19

LOCAL RULE 5-4.3.4(a)(2)(i) CERTIFICATION
The filer of this document attests that all other signatories listed above on

20

whose behalf this filing is submitted concur in the filing’s content and have

21

authorized the filing.

22
23
24
25
26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

8

STIPULATED PROTECTIVE ORDER

1
2
3
4

ORDER
The Court has reviewed the foregoing Stipulated Protective Order, and good
cause appearing therefor,
IT IS SO ORDERED.

5
6

Dated: April 24, 2017

7

Hon. Sheri Pym
United States Magistrate Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

9

STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

4

____________________________________________[print or type full address],

5

declare under penalty of perjury under the laws of the United States that I have read

6

and understand the Stipulated Protective Order that was entered by the United

7

States District Court for the Central District of California in the case of United

8

States of America v. 1003.58 Acres of Land, More or Less, et al., Case No. 5:16-cv-

9

1014 VAP (SPx) (“Action”). I agree to comply with and to be bound by all the

10

terms of the Stipulated Protective Order (“Order”), and I understand and

11

acknowledge that my failure to comply with the terms of the Order could expose

12

me to sanctions and punishment in the nature of contempt. I solemnly promise that

13

I will not disclose in any manner any information or item that is subject to the

14

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

15

Order. I further agree to submit to the jurisdiction of the United States District

16

Court for the Central District of California (or, if there is no federal jurisdiction, in

17

the State Courts of California, located in Los Angeles County), for the purpose of

18

enforcing the terms of this Order, even if such enforcement proceedings occur after

19

the termination of the Action.

20

Name:

21

Date:

22

Signature:

23

City and State:

24
25

318542348.2

26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

10

STIPULATED PROTECTIVE ORDER