Securities and Exchange Commission v. Erik K. Bardman et al

Filing 66

STIPULATION AND ORDER re 63 STIPULATION WITH [PROPOSED] ORDER re Stipulated Protective Order filed by Erik K. Bardman. Signed by Judge Jon S. Tigar on May 21, 2017. Please note change to paragraph 13. (wsn, COURT STAFF) (Filed on 5/22/2017)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 SECURITIES AND EXCHANGE COMMISSION, Plaintiff, Case No. 3:16-cv-02023-JST v. STIPULATED PROTECTIVE ORDER ERIK K. BARDMAN, and JENNIFER F. WOLF, Defendants. 18 Pursuant to Federal Rule of Civil Procedure 26(c), the parties hereby stipulate to and 19 petition the Court to enter this Stipulated Protective Order. The Court enters this Protective 20 Order to ensure the confidentiality of certain information that has been and will be produced 21 and disclosed in discovery in this action. The parties acknowledge that this Protective Order 22 does not confer blanket protections on all disclosures or responses to discovery and that the 23 protection it affords from public disclosure and use extends only to the limited information or 24 items that are entitled to confidential treatment under the terms of this Protective Order. 25 26 27 1 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 2. DEFINITIONS 2.1 2 Confidential Business Information: As used in this Protective Order, the term 3 “Confidential Business Information” shall mean any documents or other information containing 4 trade secrets or other confidential or proprietary research, development, or commercial 5 information. 2.2 6 7 (including counsel’s employees) to such party (collectively, the “Parties”). 2.3 8 9 Non-Party: Any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.4 10 11 Party: Any party to this action (including its employees) or any counsel Producing Party: A Party or Non-Party that produces disclosure or discovery material in this action. 2.5 12 Designating Party: A Party or Non-Party that designates information or items 13 that it produces in disclosures or in responses to discovery as Confidential Business 14 Information. 15 2.6 16 Producing Party. 17 2.7 18 Receiving Party: A Party that receives disclosure or discovery material from a Challenging Party: A Party or Non-Party that challenges the designation of information or items as Confidential Business Information under this Protective Order. 2.8 19 Protected Material: Any disclosure or discovery material designated as 20 Confidential Business Information. 21 3. 22 SCOPE The protections conferred by this Stipulation and Order cover not only Protected 23 Material (as defined above), but also (1) any information copied or extracted from Protected 24 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 25 testimony, conversations, or presentations by Parties or their Counsel that might reveal 26 Protected Material. However, the protections conferred by this Stipulation and Order do not 27 cover the following information: (a) any information that is in the public domain at the time of 2 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a 2 Receiving Party as a result of publication not involving a violation of this Order, including 3 becoming part of the public record through trial or otherwise; and (b) any information known to 4 the Receiving Party prior to the disclosure or obtained by the Receiving Party after the 5 disclosure from a source who obtained the information lawfully and under no obligation of 6 confidentiality to the Designating Party. Any use of Protected Material at trial shall be 7 governed by a separate agreement or order. 8 4. DURATION Even after the Final Disposition of this litigation, the confidentiality obligations 9 10 imposed by this Protective Order shall remain in effect unless the Parties agree otherwise in 11 writing or a court order otherwise directs. Final disposition shall be deemed to be the later of 12 (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final 13 judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, 14 or reviews of this action, including the time limits for filing any motions or applications for 15 extension of time pursuant to applicable law. 16 5. 17 DESIGNATING CONFIDENTIAL BUSINESS INFORMATION 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 18 Party or Non-Party that designates information or items for protection as Confidential Business 19 Information under this Protective Order must take care to limit any such designation to specific 20 material that qualifies under the appropriate standards. The Designating Party must designate 21 for protection as Confidential Business Information only those parts of material, documents, 22 items, or oral or written communications that qualify – so that other portions of the material, 23 documents, items, or communications for which protection is not warranted are not swept 24 unjustifiably within the ambit of this Protective Order. Mass, indiscriminate, or routinized 25 designations are prohibited. Designations that are shown to be clearly unjustified or that have 26 been made for an improper purpose (e.g., to unnecessarily encumber or retard the case 27 development process or to impose unnecessary expenses and burdens on other parties) expose 3 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 the Designating Party to sanctions. If it comes to a Designating Party’s attention that 2 information or items that it designated for protection as Confidential Business Information do 3 not qualify for protection, that Designating Party must promptly notify all other Parties that it is 4 withdrawing the mistaken designation. 5 5.2 Manner and Timing of Designations as Confidential Business Information. 6 Material that qualifies for protection as Confidential Business Information under this Order 7 may be so designated at any time. Designation in conformity with this Protective Order 8 requires: (a) 9 for information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that 11 the Producing Party affix the legend “CONFIDENTIAL PURSUANT TO PROTECTIVE 12 ORDER” to each page that contains Confidential Business Information. If only a portion or 13 portions of the material on a page qualifies for protection, the Producing Party also must clearly 14 identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) 15 for testimony given in deposition or in other pretrial or trial proceedings, 16 that the Designating Party identify on the record, before the close of the deposition, hearing, or 17 other proceeding, all protected testimony. (c) 18 for information produced in some form other than documentary and for 19 any other tangible items, that the Producing Party affix in a prominent place on the exterior of 20 the container or containers in which the information or item is stored the legend 21 “CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER.” If only a portion or portions of 22 the information or item warrant protection as Confidential Business Information, the Producing 23 Party, to the extent practicable, shall identify the protected portion(s). 24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 25 designate qualified information or items does not, standing alone, waive the Designating 26 Party’s right to secure protection under this Order for such material. Upon timely correction of 27 4 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 a designation, the Receiving Party must make reasonable efforts to assure that the material is 2 treated in accordance with the provisions of this Order. 3 6. 4 CHALLENGING DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 5 confidentiality as Confidential Business Information at any time. Unless a prompt challenge to 6 a Designating Party’s confidentiality designation is necessary to avoid foreseeable and 7 substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of 8 the litigation, a Party or Non-Party does not waive its right to challenge a designation as 9 Confidential Business Information by electing not to mount a challenge promptly after the 10 11 original designation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 12 process by providing written notice of each designation of Confidential Business Information it 13 is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a 14 challenge has been made, the written notice must recite that the challenge to confidentiality is 15 being made in accordance with this specific paragraph of the Protective Order. The parties 16 shall attempt to resolve each challenge in good faith and must begin the process by conferring 17 directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 18 days of the date of service of notice. In conferring, the Challenging Party must explain the 19 basis for its belief that the confidentiality designation was not proper and must give the 20 Designating Party an opportunity to review the designated material, to reconsider the 21 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 22 designation. A Challenging Party may proceed to the next stage of the challenge process only 23 if it has engaged in this meet and confer process first or establishes that the Designating Party is 24 unwilling to participate in the meet and confer process in a timely manner. 25 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 26 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 27 Civil L.R. 7 (and in compliance with Civil L.R. 79-5, if applicable) within 21 days of the initial 5 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 notice of challenge or within 14 days of the parties’ agreeing that the meet and confer process 2 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by 3 a competent declaration affirming that the movant has complied with the meet and confer 4 requirements imposed in the preceding paragraph. Failure by the Designating Party to make 5 such a motion including the required declaration within 21 days (or 14 days, if applicable) shall 6 automatically waive the confidentiality designation for each challenged designation. In 7 addition, the Challenging Party may file a motion challenging a designation as Confidential 8 Business Information at any time if there is good cause for doing so, including a challenge to 9 the designation of a deposition transcript or any portions thereof. Any motion brought pursuant 10 to this provision must be accompanied by a competent declaration affirming that the movant 11 has complied with the meet and confer requirements imposed by the preceding paragraph. 12 The burden of persuasion in any such challenge proceeding shall be on the Designating 13 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 14 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 15 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 16 file a motion to retain confidentiality as described above, all parties shall continue to afford the 17 material in question the protection to which it is entitled as Confidential Business Information 18 until the Court rules on the challenge. 19 7. 20 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Protected Material disclosed to any Party during the course of this action: 21 a. Shall be used by the Parties only for the purposes of this action; 22 b. Shall not be used by the Parties for any business or commercial purposes (other than a Party’s use of its own information); 23 24 25 c. Shall not be published to the public in any form by the Parties, except as permitted by this Protective Order; 26 27 6 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order d. 1 May be disclosed only on an as-needed basis, during the course of this 2 litigation and with reasonable precautions taken to insure the 3 confidentiality of the information, to the following persons: 4 i. A Party; 5 ii. Employees or contractors of any law firm that represents a Party, 6 including attorneys as well as secretarial, clerical, paralegal, 7 legal, or student personnel, and any person or entity with whom a 8 Party contracts to reproduce or manage documents; 9 iii. Non-party witnesses; 10 iv. A document’s author(s), recipient(s), or copyee(s); 11 v. Current and former employees of the Producing Party or NonParty; 12 vi. 13 Independent (non-employee) consultants, expert witnesses, or 14 advisors retained by any of the Parties in connection with this 15 action; 16 vii. Court reporters or stenographers and their employees; and 17 viii. Such other persons as hereafter may be authorized by either 18 (1) written consent of all the Parties; (2) the original producing 19 Party or Non-Party; or (3) the Court, upon motion of either Party. 20 7.2 The Party disclosing Protected Material to a recipient under Paragraph 7.1.d 21 shall serve a copy of this Protective Order upon the recipient. The provisions of this Protective 22 Order shall be binding upon each such recipient. 23 7.3 The provisions of this Protective Order shall not be construed as preventing: 24 a. Any disclosure of Protected Material to any Party; 25 b. Any disclosure of Protected Material to any judge, magistrate, or 26 employee of this Court for any purposes of this action; or 27 7 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order c. 1 the criminal law or as otherwise required by law. 2 3 Any disclosure of Protected Material for the purpose of enforcement of 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 4 LITIGATION 5 If a Party is served with a subpoena or a court order issued in other litigation that compels 6 disclosure of any information or items designated in this action as Confidential Business 7 Information, that Party must: (a) 8 9 promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) 10 promptly notify in writing the party who caused the subpoena or order to issue in 11 the other litigation that some or all of the material covered by the subpoena or order is subject to 12 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 13 and (c) 14 15 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 16 17 subpoena or court order shall not produce any information designated in this action as 18 Confidential Business Information before a determination by the court from which the subpoena 19 or order issued, unless the Party has obtained the Designating Party’s permission. The 20 Designating Party shall bear the burden and expense of seeking protection in that court of its 21 confidential material – and nothing in these provisions should be construed as authorizing or 22 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 24 LITIGATION 25 (a) The terms of this Protective Order are applicable to information produced by a 26 Non-Party in this action and designated as Confidential Business Information. Such information 27 produced by Non-Parties in connection with this litigation is protected by the remedies and relief 8 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 provided by this Protective Order. Nothing in these provisions should be construed as prohibiting 2 a Non-Party from seeking additional protections. (b) 3 In the event that a Party is required, by a valid discovery request, to produce a 4 Non-Party’s confidential information in its possession, and the Party is subject to an agreement 5 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (1) 6 promptly notify in writing the Requesting Party and the Non-Party that 7 some or all of the information requested is subject to a confidentiality agreement with a Non- 8 Party; (2) 9 promptly provide the Non-Party with a copy of the Protective Order in this 10 litigation, the relevant discovery request(s), and a reasonably specific description of the 11 information requested; and (3) 12 (c) 13 make the information requested available for inspection by the Non-Party. If the Non-Party fails to object or seek a protective order from this court within 14 14 days of receiving the notice and accompanying information, the Receiving Party may produce the 15 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 16 seeks a protective order, the Receiving Party shall not produce any information in its possession 17 or control that is subject to the confidentiality agreement with the Non-Party before a 18 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 19 burden and expense of seeking protection in this court of its Protected Material. 20 10. 21 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 22 Material to any person or in any circumstance not authorized under this Protective Order, the 23 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 24 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, 25 (c) inform the person or persons to whom unauthorized disclosures were made of the terms and 26 the binding nature of this Protective Order under paragraph 7.2. 27 9 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 2 MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain inadvertently 4 produced material is subject to a claim of privilege or other protection, the obligations of the 5 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 6 provision is not intended to modify whatever procedure may be established in an e-discovery 7 order that provides for production without prior privilege review. Pursuant to Federal Rule of 8 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 9 communication or information covered by the attorney-client privilege or work product 10 protection, the parties may incorporate their agreement in the stipulated protective order 11 submitted to the court. 12 12. 13 14 15 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. 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 16 Order no Party waives any right it otherwise would have to object to disclosing or producing any 17 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 18 no Party waives any right to object on any ground to use in evidence of any of the material 19 covered by this Protective Order. 20 12.3 Filing Protected Material. Without written permission from the Designating Party 21 or a court order secured after appropriate notice to all interested persons, a Party may not file in 22 the public record in this action any Protected Material. A Party that seeks to file under seal any 23 Protected Material must comply with Civil L.R. 79-5. Protected Material may only be filed under 24 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. 25 Pursuant to Civil L.R. 79-5, a sealing order will issue only upon a request establishing that the 26 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 27 protection under the law. If a Receiving Party’s request to file Protected Material under seal 10 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 pursuant to Civil L.R. 79-5(d) is denied by the Court, then the Receiving Party may file the 2 information in the public record pursuant to Civil L.R. 79-5(e) unless otherwise instructed by the 3 Court. 4 13. 5 FINAL DISPOSITION Within 60 days after the Final Disposition of this action, as defined in 6 paragraph 4, each Receiving Party must return all Protected Material to the Producing Party, 7 must destroy such material, or must maintain and dispose of such material in accordance with 8 applicable federal recordkeeping and archival provisions. As used in this subdivision, “all 9 Protected Material” includes all copies, abstracts, compilations, summaries, and any other 10 format reproducing or capturing any of the Protected Material. Notwithstanding this provision, 11 Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, 12 and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 13 reports, attorney work product, and consultant and expert work product, even if such materials 14 contain Protected Material. Any such archival copies that contain or constitute Protected 15 Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 16 17 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 18 19 20 21 22 23 24 25 DATED: May 10, 2017 /s/ Kevin C. Lombardi Kevin C. Lombardi (DC Bar No. 474114) ( Paul W. Kisslinger (NJ Bar No. 6511995) ( SECURITIES AND EXCHANGE COMMISSION 100 F Street, NE Washington, DC 20549 Tel: (202) 551-8753 (Lombardi) Fax: (202) 772-9291 (Lombardi) Attorneys for Plaintiff Securities and Exchange Commission 26 27 11 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order 1 DATED: May 10, 2017 2 3 4 5 6 7 Attorneys for Defendant Erik K. Bardman 8 9 10 DATED: May 10, 2017 11 12 13 14 17 18 /s/ William H. Kimball William H. Kimball (State Bar No. 242626) KANE+KIMBALL LLP 803 Hearst Avenue Berkeley, CA 94710 Telephone: (510) 704-1400 Facsimile: (877) 482-4749 Email: Attorney for Defendant Jennifer F. Wolf 15 16 /s/ Patrick D. Robbins Patrick D. Robbins (State Bar No. 152288) Emily V. Griffen (State Bar No. 209162) Lisa Valenti-Jordan (State Bar No. 300161) SHEARMAN & STERLING LLP 535 Mission Street, 25th Floor San Francisco, CA 94105 Telephone: (415) 616-1100 Facsimile: (415) 616-1199 Email: CERTIFICATION PURSUANT TO CIVIL L.R. 5-1(i)(3) I attest that concurrence in the filing of this document has been obtained from the foregoing party listed immediately above this certification. 19 /s/ Patrick D. Robbins Patrick D. Robbins 20 21 22 23 24 25 PURSUANT TO STIPULATION, IT IS SO ORDERED. DATED: _May 21, 2017___________ _____________________________________ United States District Judge 26 27 12 SEC v. Bardman, et al., No. 3:16-cv-02023-JST Stipulated Protective Order

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?