Securities and Exchange Commission v. Bivona et al

Filing 162

STIPULATION AND ORDER re 161 FOR PRESERVATION OF HARD DRIVE OF COMPUTER IN POSSESSION OF DEFENDANT JOHN V. BIVONA filed by Securities and Exchange Commission. Signed by Judge Edward M. Chen on 12/19/16. (bpfS, COURT STAFF) (Filed on 12/19/2016)

1 JINA L. CHOI (N.Y. Bar No. 2699718)
JOHN S. YUN (Cal. Bar No. 112260)
2 [e-mail]
MARC D. KATZ (Cal. Bar No. 189534)
3 [e-mail]
JESSICA W. CHAN (Cal. Bar No. 247669)
4 [e-mail]
5 Attorneys for Plaintiff
SECURITIES AND EXCHANGE COMMISSION
6 44 Montgomery Street, Suite 2800
San Francisco, CA 94104
7 Telephone: [phone]
Facsimile: [phone]
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SECURITIES AND EXCHANGE COMMISSION, Case No. 3:16-cv-01386-EMC

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Plaintiff,
v.

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STIPULATION AND PROPOSED ORDER
FOR PRESERVATION OF HARD DRIVE
OF COMPUTER IN POSSESSION OF
DEFENDANT JOHN V. BIVONA

JOHN V. BIVONA; SADDLE RIVER
18 ADVISORS, LLC; SRA MANAGEMENT
ASSOCIATES, LLC; FRANK GREGORY
19 MAZZOLA,
Defendants, and

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21 SRA I LLC; SRA II LLC; SRA III LLC;
FELIX INVESTMENTS, LLC; MICHELE
22 J. MAZZOLA; ANNE BIVONA; CLEAR
SAILING GROUP IV LLC; CLEAR
23 SAILING GROUP V LLC,
Relief Defendants.

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Stip. For Order Preserving Hard Drive
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Civ. 3:16-cv-01386-EMC

STIPULATION FOR PRESERVATION OF HARD DRIVE OF COMPUTER

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Consistent with the Court’s order to preserve evidence, entered March 25, 2016 (Docket No.

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3 36 at page 5), counsel for plaintiff Securities and Exchange Commission (“Commission”), for
4 defendants John V. Bivona and Saddle River Advisors, LLC (“Saddle River”) and for relief
5 defendant Anne Bivona, and for the receivership entities defendant SRA Management, LLC and
6 relief defendants SRA I LLC, SRA II LLC, SRA III LLC, Clear Sailing Group IV LLC and Clear
7 Sailing Group V LLC, as well as third party affiliated entities Felix Multi-Opportunity Fund I LLC,
8 Felix Multi-Opportunity Fund II LLC, Felix Management Associates LLC, NYPA Fund I LLC,
9 NYPA Fund II LLC and NYPA Management Associates LLC, hereby stipulate to the Court’s entry
10 of an Order authorizing the Commission’s Office of Technical Services (“OTS”) to perform, at the
11 Commission’s expense, a forensic imaging and copying of the hard drive of the Dell desk top
12 computer (serial number 26600661505) in the possession of defendant John V. Bivona at the current
13 600 East Crescent Avenue, Saddle River, New Jersey 07458 offices of defendant Saddle River
14 (hereafter, the “Computer Drive”) on the following terms and conditions:
1.

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The OTS shall conduct forensic imaging on the Computer Drive under the following

16 protocol:
a.

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The OTS shall generate a verifiable forensic image of the Computer Drive to

18 preserve any and all potential data on the Computer Drive;
b.

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The OTS may take temporary possession of the Computer Drive at the current

20 Saddle River offices for such time as is necessary to perform forensic imaging, searching, and any
21 testing;
c.

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Prior to conducting the forensic imaging of the Computer Drive, the OTS shall

23 arrange, with representatives of John Bivona and the Receiver, a time and date for the imaging so that
24 those representatives may, if they desire, be present during the forensic imaging of the Computer
25 Drive;
d.

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After the OTS completes its imaging of the Computer Drive, it shall return the

27 source Computer Drive to John Bivona, who may continue to retain and use the desk top computer
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Civ. 3:16-cv-01386-EMC

1 consistent with the Court’s evidence preservation order;
e.

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Upon completion of its imaging of the Computer Drive, the OTS shall make no

3 more than three additional identical copies of the Computer Drive. The original image of the
4 Computer Drive and all three identical copies of the Computer Drive (the “Computer Drive Images”)
5 will be delivered in a secure manner to Iron Mountain Columbia, 8928 McGaw Court, Columbia,
6 Maryland 21045, telephone: [phone], for storage, at the expense of the Commission, pending
7 further unanimous written agreement of the parties or order of the Court;
f.

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Because Mr. Bivona and Saddle River assert that the Computer Drive contains

9 confidential information, at no time in performing the foregoing shall OTS or anyone else review or
10 access the information on the Computer Drive or Computer Drive Images. Neither OTS, the
11 Receiver, nor any party (except Mr. Bivona and Iron Mountain) shall retain a copy of the Computer
12 Drive, in whole or part, following the creation of the Computer Drive Images as set forth above;
g.

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Following completion of the foregoing tasks, the OTS shall prepare and deliver

14 to the parties to this Stipulation a sworn declaration describing the steps that it has undertaken to
15 image the Computer Drive, prepare identical copies of the image of the Computer Drive and to
16 deliver the Computer Drive Images to Iron Mountain.
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2.

Because Mr. Bivona and Saddle River assert that the Computer Drive contains

18 confidential information, the Computer Drive Images, and the data contained therein, shall not be
19 accessed by any party or anyone else while held at Iron Mountain, or at any other time, except by
20 unanimous written agreement of the parties to this Stipulation or by order of the Court;
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3.

Mr. Bivona and Saddle River Advisors have asserted that the Computer Drive contains

22 privileged, confidential, and irrelevant materials, and the imaging of the Computer Drive and the
23 safekeeping of the Computer Drive Images at Iron Mountain (or any other custodian) shall therefore
24 not be deemed to be a waiver by Mr. Bivona or Saddle River of any applicable privileges, doctrines,
25 or other objections to the production of any materials that Mr. Bivona or Saddle River might assert
26 with respect to the Computer Drive and Computer Drive Images;
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4.

By entering into this Stipulation, the Commission and the Receiver do not waive any

2 claims that they might have regarding the ownership of the Computer Drive and Computer Drive
3 Images, regarding the absence of any privilege or confidentiality with respect to some or all of the
4 contents of the Computer Drive and Computer Drive Images and regarding the right to seek court
5 authorization to access the contents of the Computer Drive and Computer Drive Images.
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5.

Unless otherwise ordered by the Court or unanimously agreed to in writing by the

7 parties to this stipulation, the Computer Drive Images shall be destroyed upon the conclusion of this
8 litigation and the receivership.
9 Dated: December 15, 2016
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SECURITIES AND EXCHANGE COMMISSION

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John S. Yun
John S. Yun
Attorneys for Plaintiff
SECURITIES AND EXCHANGE COMMISSION

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SHARTSIS FRIESE LLP

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Jahan P. Raissi (by email authorization)
Jahan P. Raissi
Attorneys for Defendants JOHN V. BIVONA and SADDLE
RIVER ADVISORS, LLC and Relief Defendant ANNE
BIVONA

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John W. Cotton (by email authorization)
John W. Cotton
GARTENBERG, GELFAND & HAYTON LLP
Attorney for the Receiver
SHERWOOD PARTNERS, INC. for Receivership Entities
SRA MANAGEMENT, LLC, SRA I LLC,
SRA II LLC, SRA III LLC, CLEAR SAILING GROUP IV
LLC, CLEAR SAILING GROUP V LLC, FELIX
MANAGEMENT ASSOCIATES LLC, FELIX MULTIOPPORTUNITY FUND I LLC, FELIX MULTIOPPORTUNITY FUND II LLC, NYPA MANAGEMENT
ASSOCIATES LLC, NYPA FUND I LLC, and NYPA FUND
II LLC

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ORDER

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The parties having stipulated to this Order,

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SO ORDERED.

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UNIT
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ORD
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4 DATED: December __, 2016

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Judge Edward M. Chen
UNITED STATES DISTRICT COURT
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