Semsotai USA, Inc. v. Truist Bank et al

Filing 12

STIPULATED PROTECTIVE ORDER by Magistrate Judge John D. Early. re 11 (mba)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SEMSOTAI USA, INC. 11 12 Case No. 8:24-cv-01563-JWH-JDE Plaintiff, v. STIPULATED PROTECTIVE ORDER 13 TRUIST BANK, INC. and Does 1 through 20, inclusive; 14 Defendants. 15 16 Based on the parties’ Stipulation (Dkt. 11-1) and for good cause shown, the 17 Court finds and orders as follows. 18 1. INTRODUCTION 19 A 20 Discovery in this action is likely to involve production of confidential, PURPOSES AND LIMITATIONS 21 proprietary, or private information for which special protection from public 22 disclosure and from use for any purpose other than prosecuting this litigation may be 23 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter 24 the following Stipulated Protective Order. The parties acknowledge that this Order 25 does not confer blanket protections on all disclosures or responses to discovery and 26 that the protection it affords from public disclosure and use extends only to the limited 27 information or items that are entitled to confidential treatment under the applicable 28 1 STIPULATED PROTECTIVE ORDER 1 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 2 that this Stipulated Protective Order does not entitle them to file confidential 3 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 4 followed and the standards that will be applied when a party seeks permission from 5 the court to file material under seal. 6 B 7 It appears that discovery in this action will involve the disclosure of STATEMENT OF FACTS 8 confidential information, including but not limited to confidential bank records that 9 are shielded by statute. It may also involve other commercial or financial information 10 for which special protection from public disclosure and from use for any purpose 11 other than prosecution of this action is warranted. Such confidential and proprietary 12 materials and information consist of, among other things, confidential business or 13 financial information (including information implicating privacy rights of third 14 parties), information otherwise generally unavailable to the public, or which may be 15 privileged or otherwise protected from disclosure under state or federal statutes, court 16 rules, case decisions, or common law. Thus, to expedite the flow of information, to 17 facilitate the prompt resolution of disputes over the confidentiality of discovery 18 materials, to adequately protect information the parties are entitled to keep 19 confidential, to ensure that the parties are permitted reasonable necessary uses of such 20 material in preparation for and in the conduct of trial, to address their handling at the 21 end of the litigation, and serve the ends of justice, a protective order for such 22 information is justified in this matter. It is the intent of the parties that information 23 will not be designated as confidential for tactical reasons and that nothing be so 24 designated without a good faith belief that it has been maintained in a confidential, 25 non-public manner, and there is good cause why it should not be part of the public 26 record of this case. 27 28 2 STIPULATED PROTECTIVE ORDER 1 2. DEFINITIONS 2 2.1 Action: this lawsuit. 3 2.2 Challenging Party: a Party or Non-Party that challenges the designation 4 of information or items under this Order. 5 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 6 how it is generated, stored or maintained) or tangible things that qualify for protection 7 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 8 Cause Statement. 9 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 10 support staff). 11 2.5 Designating Party: a Party or Non-Party that designates information or 12 items that it produces in disclosures or in responses to discovery as 13 “CONFIDENTIAL.” 14 2.6 Disclosure or Discovery Material: all items or information, regardless of 15 the medium or manner in which it is generated, stored, or maintained (including, 16 among other things, testimony, transcripts, and tangible things), that are produced or 17 generated in disclosures or responses to discovery in this matter. 18 2.7 Expert: a person with specialized knowledge or experience in a matter 19 pertinent to the litigation who has been retained by a Party or its counsel to serve as 20 an expert witness or as a consultant in this Action. 21 2.8 House Counsel: attorneys who are employees of a party to this Action. 22 House Counsel does not include Outside Counsel of Record or any other outside 23 counsel. 24 2.9 Non-Party: any natural person, partnership, corporation, association, or 25 other legal entity not named as a Party to this action. 26 2.10 Outside Counsel of Record: attorneys who are not employees of a party 27 to this Action but are retained to represent or advise a party to this Action and have 28 3 STIPULATED PROTECTIVE ORDER 1 appeared in this Action on behalf of that party or are affiliated with a law firm which 2 has appeared on behalf of that party, and includes support staff. 3 2.11 Party: any party to this Action, including all of its officers, directors, 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 support staffs). 6 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 7 Discovery Material in this Action. 8 2.13 Professional Vendors: persons or entities that provide litigation support 9 services (e.g., photocopying, videotaping, translating, preparing exhibits or 10 demonstrations, and organizing, storing, or retrieving data in any form or medium) 11 and their employees and subcontractors. 12 2.14 Protected Material: any Disclosure or Discovery Material that is 13 designated as “CONFIDENTIAL.” 14 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 15 from a Producing Party. 16 3. SCOPE 17 The protections conferred by this Stipulation and Order cover not only 18 Protected Material (as defined above), but also (1) any information copied or 19 extracted from Protected Material; (2) all copies, excerpts, summaries, or 20 compilations of Protected Material; and (3) any testimony, conversations, or 21 presentations by Parties or their Counsel that might reveal Protected Material. Any 22 use of Protected Material at trial shall be governed by the orders of the trial judge. 23 This Order does not govern the use of Protected Material at trial. 24 4. DURATION 25 Even after final disposition of this litigation, the confidentiality obligations 26 imposed by this Order shall remain in effect until a Designating Party agrees 27 otherwise in writing or a Court Order otherwise directs. Final disposition shall be 28 4 STIPULATED PROTECTIVE ORDER 1 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 2 or without prejudice; and (2) final judgment herein after the completion and 3 exhaustion of all appeals, re-hearings, remands, trials, or reviews of this Action, 4 including the time limits for filing any motions or applications for extension of time 5 pursuant to applicable law. The parties acknowledge and agree that Plaintiff shall be 6 entitled to retain and use Protected Material only for purposes of this action or claims 7 that Plaintiff might assert against the person(s) who hold the account to which 8 Plaintiff wire-transferred the funds at issue in the above-captioned action (the 9 “Account”). 10 5. DESIGNATING PROTECTED MATERIAL 11 5.1 Exercise of Restraint and Care in Designating Material for Protection. 12 Each Party or Non-Party that designates information or items for protection under 13 this Order must take care to limit any such designation to specific material that 14 qualifies under the appropriate standards. The Designating Party must designate for 15 protection only those parts of material, documents, items, or oral or written 16 communications that qualify so that other portions of the material, documents, items, 17 or communications for which protection is not warranted are not swept unjustifiably 18 within the ambit of this Order. 19 Mass, indiscriminate, or routinized designations are prohibited. Designations 20 that are shown to be clearly unjustified or that have been made for an improper 21 purpose (e.g., to unnecessarily encumber the case development process or to impose 22 unnecessary expenses and burdens on other parties) may expose the Designating 23 Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it 25 designated for protection do not qualify for protection, that Designating Party must 26 promptly notify all other Parties that it is withdrawing the inapplicable designation. 27 28 5 STIPULATED PROTECTIVE ORDER 1 5.2 Manner and Timing of Designations. Except as otherwise provided in 2 this Order (see, e.g., second paragraph of Section 5.2(a), below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 4 under this Order must be clearly so designated before the material is disclosed or 5 produced. 6 7 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 8 documents, but excluding transcripts of depositions or other pretrial or trial 9 proceedings), that the Producing Party affix at a minimum, the legend 10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 11 contains protected material. A Party or Non-Party that makes original documents 12 available for inspection need not designate them for protection until after the 13 inspecting Party has indicated which documents it would like copied and produced. 14 During the inspection and before the designation, all of the material made available 15 for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 16 identified the documents it wants copied and produced, the Producing Party must 17 determine which documents, or portions thereof, qualify for protection under this 18 Order. Then, before producing the specified documents, the Producing Party must 19 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 20 If only a portion or portions of the material on a page qualifies for protection, the 21 Producing Party also must clearly identify the protected portion(s) (e.g., by making 22 appropriate markings in the margins). 23 (b) for testimony given in depositions that the Designating Party 24 identify the Disclosure or Discovery Material on the record, before the close of the 25 deposition all protected testimony. 26 (c) for information produced in some form other than documentary 27 and for any other tangible items, that the Producing Party affix in a prominent place 28 6 STIPULATED PROTECTIVE ORDER 1 on the exterior of the container or containers in which the information is stored the 2 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants 3 protection, the Producing Party, to the extent practicable, shall identify the protected 4 portion(s). 5 5.2 Inadvertent Failures to Designate. If timely corrected, an inadvertent 6 failure to designate qualified information or items does not, standing alone, waive the 7 Designating Party’s right to secure protection under this Order for such material. 8 Upon timely correction of a designation, the Receiving Party must make 9 reasonable efforts to assure that the material is treated in accordance with the 10 provisions of this Order. 11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 12 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 13 designation of confidentiality at any time that is consistent with the Court’s 14 Scheduling Order. 15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 16 resolution process under Local Rule 37.1 et seq. 17 6.3 The burden of persuasion in any such challenge proceeding shall be on 18 the Challenging Party. Frivolous challenges, and those made for an improper purpose 19 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 20 expose the Challenging Party to sanctions. Unless the Designating Party has waived 21 or withdrawn the confidentiality designation, all parties shall continue to afford the 22 material in question the level of protection to which it is entitled under the Producing 23 Party’s designation until the Court rules on the challenge. 24 7. ACCESS TO AND USE OF PROTECTED MATERIAL 25 7.1 Basic Principles. A Receiving Party may use Protected Material that is 26 disclosed or produced by another Party or by a Non-Party in connection with this 27 Action only for prosecuting, defending, or attempting to settle this Action. Such 28 7 STIPULATED PROTECTIVE ORDER 1 Protected Material may be disclosed only to the categories of persons and under the 2 conditions described in this Order. When the Action has been terminated, a Receiving 3 Party must comply with the provisions of Section 13, below (FINAL 4 DISPOSITION). Protected Material must be stored and maintained by a Receiving 5 Party at a location and in a secure manner that ensures that access is limited to the 6 persons authorized under this Order. 7 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 8 otherwise ordered by the court or permitted in writing by the Designating Party, a 9 Receiving Party may disclose any information or item designated 10 “CONFIDENTIAL” only to: 11 (a) the Receiving Party’s Outside Counsel of Record in this Action, 12 as well as employees of said Outside Counsel of Record to whom it is reasonably 13 necessary to disclose the information for this Action; 14 (b) the officers, directors, and employees (including House Counsel) 15 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 16 (c) Experts (as defined in this Order) of the Receiving Party to whom 17 disclosure is reasonably necessary for this Action and who have signed the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (d) the court and its personnel; 20 (e) court reporters and their staff; 21 (f) professional jury or trial consultants, mock jurors, and 22 Professional Vendors to whom disclosure is reasonably necessary for this Action and 23 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (g) the author or recipient of a document containing the information 25 or a custodian or other person who otherwise possessed or knew the information; 26 (h) during their depositions, witnesses, and attorneys for witnesses, 27 in the Action to whom disclosure is reasonably necessary provided: (1) the deposing 28 8 STIPULATED PROTECTIVE ORDER 1 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they 2 will not be permitted to keep any confidential information unless they sign the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 4 agreed by the Designating Party or ordered by the court. Pages of transcribed 5 deposition testimony or exhibits to depositions that reveal Protected Material may be 6 separately bound by the court reporter and may not be disclosed to anyone except as 7 permitted under this Stipulated Protective Order; and 8 (i) any mediator or settlement officer, and their personnel, mutually 9 agreed upon by any of the parties engaged in settlement discussions. 10 8. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 that compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking 9 STIPULATED PROTECTIVE ORDER 1 protection in that court of its confidential material and nothing in these provisions 2 should be construed as authorizing or encouraging a Receiving Party in this Action 3 to disobey a lawful directive from another court. 4 9. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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: (1) 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; (2) 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 (3) 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 10 STIPULATED PROTECTIVE ORDER 1 the confidentiality agreement with the Non-Party before a determination by the court. 2 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 3 of seeking protection in this court of its Protected Material. 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 6 Protected Material to any person or in any circumstance not authorized under this 7 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 8 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 9 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 10 persons to whom unauthorized disclosures were made of all the terms of this Order, 11 and (d) request such person or persons to execute the “Acknowledgment and 12 Agreement to Be Bound” that is attached hereto as Exhibit A. 13 11. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 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. 11 STIPULATED PROTECTIVE ORDER 1 12.2 Right to Assert Other Objections. By stipulating to the entry of this 2 Protective Order, no Party waives any right it otherwise would have to object to 3 disclosing or producing any information or item on any ground not addressed in this 4 Stipulated Protective Order. Similarly, no Party waives any right to object on any 5 ground to use in evidence of any of the material covered by this Protective Order. 6 12.3 Filing Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 8 only be filed under seal pursuant to a court order authorizing the sealing of the 9 specific Protected Material at issue. If a Party’s request to file Protected Material 10 under seal is denied by the court, then the Receiving Party may file the information 11 in the public record unless otherwise instructed by the court. 12 13. FINAL DISPOSITION 13 As set forth in Section 4 above, the Parties agree that the Receiving Party shall 14 be entitled to retain and use Protected Material only for purposes of this action or 15 claims that Plaintiff might assert against the Account holder(s) in a separate action. 16 As used in this subdivision, “all Protected Material” includes all copies, abstracts, 17 compilations, summaries, and any other format reproducing or capturing any of the 18 Protected Material. Whether the Protected Material is returned or destroyed, the 19 Receiving Party must submit a written certification to the Producing Party (and, if 20 not the same person or entity, to the Designating Party) by the 60-day deadline that 21 (1) identifies (by category, where appropriate) all the Protected Material that was 22 returned or destroyed, and (2) affirms that the Receiving Party has not retained any 23 copies, abstracts, compilations, summaries or any other format reproducing or 24 capturing any of the Protected Material. Notwithstanding this provision, Counsel are 25 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, 26 and hearing transcripts, legal memoranda, correspondence, deposition and trial 27 exhibits, expert reports, attorney work product, and consultant and expert work 28 12 STIPULATED PROTECTIVE ORDER 1 product, even if such materials contain Protected Material. Any such archival copies 2 that contain or constitute Protected Material remain subject to this Protective Order 3 as set forth in Section 4 (DURATION), above. 4 Any violation of this Order may be punished by any and all appropriate 5 measures including, without limitation, contempt proceedings and/or monetary 6 sanctions. 7 8 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 9 10 DATED September 26, 2024 11 12 ___________________________________ John D. Early 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, [print or type full name] , of [print or type full address] , 4 declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the 6 Central District of California on [date] in the case of Semsotai USA, Inc. v. 7 Truist Bank, Inc., Central District of California Case No. 8:24-cv-01563-JWH-JDE. 8 I agree to comply with and to be bound by all the terms of this Stipulated Protective 9 Order and I understand and acknowledge that failure to so comply could expose me Ballard Spahr LLP 2029 Century Park East, Suite 1400 Los Angeles, CA 90067-2915 Telephone: 424.204.4400 10 to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated 12 Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. I further agree to submit to the jurisdiction of the United 14 States District Court for the Central District of California for the purpose of enforcing 15 the terms of this Stipulated Protective Order, even if such enforcement proceedings 16 occur after termination of this action. I hereby appoint 17 of [print or type full address and phone number] [print or type full name] as my California agent 18 for service of process in connection with this action or any proceedings related to 19 enforcement of this Stipulated Protective Order. 20 21 22 23 24 25 26 27 28 14 STIPULATED PROTECTIVE ORDER CERTIFICATE OF SERVICE 1 2 I hereby certify that on this 26th day of September, 2024, a copy of the foregoing 3 Stipulated Protective Order was filed electronically, and is available for viewing and 4 downloading through the Court’s CM/ECF System. Notice of this filing will be sent 5 by email to all parties by operation of the Court’s electronic filing system or by mail 6 to any parties that are unable to accept electronic filing as indicated on the Notice of 7 Electronic Filing. /s/ _Melanie J. Vartabedian 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 STIPULATED PROTECTIVE ORDER

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