Nelson et al v. Levy et al

Filing 108

STIPULATED PROTECTIVE ORDER. Signed by Judge Maxine M. Chesney on 05/30/17. (mmclc2, COURT STAFF) (Filed on 5/30/2017)

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MARK A. PRUNER, CA Bar No. 105259
1206 "Q" Street, Suite 1
Sacramento, CA 95811
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorney for Defendants
RAYAH LEVY, RAYAH RACHEL LEVY
INTERNATIONAL, INC., Doing Business As
“ArteQuesta”

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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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LESLEE A. NELSON individually and as
Trustee and Trustor of the LESLEE A.
NELSON REVOCABLE TRUST and
NANCY BARTH,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
RAYAH LEVY, JESSICA JACOBSON,
)
RAYAH RACHEL LEVY
)
INTERNATIONAL, d/b/a “ARTEQUESTA” )
and “AGENTS OF HUMANITY IN THE
)
FINE ARTS”, JOHN DOE and JANE DOE
)
(1-10),
)
)
Defendants.
)
______________________________________ )

Case No.: 3:16-cv-3797 MMC
STIPULATION FOR PROTECTIVE
ORDER; ORDER THEREON
[Modified CAND Form]
Assigned Judge: Hon. Maxine M. Chesney

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COME NOW the Parties in the above-entitled case, plaintiffs Leslee A. Nelson,

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Individually and as Trustee and Trustor of the Leslee A. Nelson Revocable Trust and Nancy

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Barth, by and through their counsel of record, Abraham M. George and D. Gill Sperlein,

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defendants Rayah Levy and Rayah Rachel Levy International, Inc., d/b/a “ArteQuesta”, a
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Stipulation for Protective Order; Order Thereon

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California corporation (miscaptioned “Rayah Rachel Levy International” “d/b/a Agents of

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Humanity in the Fine Arts”), by and through their counsel of record, Mark A. Pruner, and

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defendant Jessica Jacobson, by and through her counsel of record, Andrew D. Winghart, who

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hereby together certify that they have in good faith conferred with each other, and now agree

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and enter into this Stipulation for Protective Order in this action as follows:

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, and/or private information for which special protection from public

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disclosure, and from use for any purpose other than prosecuting this litigation, may be

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warranted. Accordingly, the Parties hereby stipulate to and petition the court to enter its

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Order on this Stipulation for Protective Order. The Parties acknowledge that such Order does

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not confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited information or

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items that are entitled to confidential treatment under the applicable legal principles. The

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Parties further acknowledge, as set forth in Section 12.3, below, that an Order on this

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Stipulation for Protective Order does not entitle them to file confidential information under

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seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards

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that will be applied when a Party seeks permission from the court to file material under seal.

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2.

DEFINITIONS

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2.1

Challenging Party: A Party or Non-Party that challenges the designation of

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information or items under this Order.
2.2

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“CONFIDENTIAL” Information or Items: Information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal

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Rule of Civil Procedure 26(c).

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Stipulation for Protective Order; Order Thereon

2.3

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(as well as their respective support staff).
2.4

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Counsel (without qualifier): Outside Counsel of Record and House Counsel

Designating Party: A Party or Non-Party that designates information or items

that she/it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

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Disclosure or Discovery Material: Any item or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other

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things, testimony, transcripts, and tangible things), that is produced or generated in disclosures

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or responses to discovery in this matter.
2.6

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Expert: A person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or her/its counsel to serve as an

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expert witness or as a consultant in this action.
2.7

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Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

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House Counsel: Attorneys who are employees of a party to this action. House

Non-Party: Any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.9

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Outside Counsel of Record: Attorneys who are not employees of a Party to

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this action but are retained to represent or advise a Party to this action and have appeared in

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this action on behalf of that Party or are affiliated with a law firm which has appeared on

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behalf of that Party.

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2.10

Party: Any Party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their support

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staffs).

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2.11

Producing Party: A Party or Non-Party that produces Disclosure or Discovery

Material in this action.

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2.12

Professional Vendors: Persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations,

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and organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.13

Protected Material: Any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”

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2.14

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a Producing Party.

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3.

Receiving Party: A Party that receives Disclosure or Discovery Material from

SCOPE

The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3)

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any testimony, conversations, or presentations by Parties or their Counsel that might reveal

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Protected Material. However, the protections conferred by this Stipulation and Order do not

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cover the following information: (a) any information that is in the public domain at the time of

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disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a

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Receiving Party as a result of publication not involving a violation of this Order, including

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becoming part of the public record through trial or otherwise; and (b) any information both

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known to, and legally obtained by, the Receiving Party prior to the disclosure or obtained by

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the Receiving Party after the disclosure from a source who obtained the information lawfully

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and under no obligation of confidentiality to the Designating Party. Any use of Protected

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Material at trial shall be governed by a separate agreement or order.

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4.

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Even after final disposition of this litigation, the confidentiality obligations imposed

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DURATION

by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a
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court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal

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of all claims and defenses in this action, with or without prejudice; or (2) final judgment

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herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or

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reviews of this action, including the time limits for filing any motions or applications for

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extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order must

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take care to limit any such designation to specific material that qualifies under the appropriate

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standards. The Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify – so that other portions of

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the material, documents, items, or communications for which protection is not warranted are

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not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions. If it comes

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to a Designating Party’s attention that information or items that it designated for protection do

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not qualify for protection, that Designating Party must promptly notify all other Parties that it

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is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., Subsections 5.2(a), (b) and (c) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly

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so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
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(a) For information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” to each page that contains Protected Material. If

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only a portion or portions of the material on a page qualify for protection, the Producing Party

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also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins). A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has indicated

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which material it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the Receiving Party has identified the documents it wants copied

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and produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order, then, before producing the specified documents, the

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Producing Party must affix the “CONFIDENTIAL” legend to each page that contains

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Protected Material. If only a portion or portions of the material on a page qualify for

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protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by

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making appropriate markings in the margins).

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(b) For testimony given in deposition or in other pretrial or trial proceedings, that the

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all Protected Material.

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(c) For information produced in some form other than documentary or testimony and

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for any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information or item warrant

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protection, the Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating

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Party’s right to secure protection under this Order for such material. Upon timely correction

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of a designation, the Receiving Party must make reasonable efforts to assure that the material

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is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party

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does not waive its/her right to challenge a confidentiality designation by electing not to mount

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a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it/she is challenging and describing

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the basis for each challenge. To avoid ambiguity as to whether a challenge has been made,

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the written notice must recite that the challenge to confidentiality is being made in accordance

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with this specific paragraph of the Protective Order. The Parties shall attempt to resolve each

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challenge in good faith and must begin the process by conferring directly (in voice to voice

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dialogue; other forms of communication are not sufficient) within 14 days of the date of

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service of notice. In conferring, the Challenging Party must explain the basis for its/her belief

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that the confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if no

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change in designation is offered, to explain the basis for the chosen designation. A
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Challenging Party may proceed to the next stage of the challenge process only if it/she has

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engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21

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days of the initial notice of challenge or within 14 days of the Parties agreeing that the meet

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and confer process will not resolve their dispute, whichever is earlier. Each such motion must

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be accompanied by a competent declaration affirming that the movant has complied with the

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meet and confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within 21 days (or

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14 days, if applicable) shall automatically waive the confidentiality designation for each

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challenged designation. In addition, the Challenging Party may file a motion challenging a

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confidentiality designation at any time if there is good cause for doing so, including a

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challenge to the designation of a deposition transcript or any portions thereof. Any motion

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brought pursuant to this provision must be accompanied by a competent declaration affirming

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that the movant has complied with the meet and confer requirements imposed by the

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preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to

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harass or impose unnecessary expenses and burdens on other Parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality

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designation by failing to file a motion to retain confidentiality as described above, all Parties

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shall continue to afford the material in question the level of protection to which it is entitled

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under the Producing Party’s designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this action only

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for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may

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be disclosed only to the categories of persons and under the conditions described in this

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Order. When the litigation has been terminated, a Receiving Party must comply with the

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provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location

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and in a secure manner that ensures that access is limited to the persons authorized under this

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Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated “CONFIDENTIAL” only to:

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(a) The Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose

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the information for this litigation and who have signed the “Acknowledgment and Agreement

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to Be Bound” that is attached hereto as Exhibit A;

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(b) The officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);
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(d) The court and its personnel;

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(e) Court reporters and their staff, professional jury or trial consultants, mock jurors,

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) During their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must

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be separately bound by the court reporter and may not be disclosed to anyone except as

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permitted under this Stipulated Protective Order.
(g) The author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.
8.

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

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compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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(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

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the other litigation that some or all of the material covered by the subpoena or order is subject

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to this Protective Order. Such notification shall include a copy of this Order; and

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(c) Cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating

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Party shall bear the burden and expense of seeking protection in that court of its confidential

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material – and nothing in these provisions should be construed as authorizing or encouraging

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a Receiving Party in this action to disobey a lawful directive from another court.

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9.

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

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this action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided by

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this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from

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seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a

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Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information, then

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the Party shall:

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(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

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this litigation, the relevant discovery request(s), and a reasonably specific description of the

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information requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce

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the Non-Party’s confidential information responsive to the discovery request. If the Non-

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Party timely seeks a protective order, the Receiving Party shall not produce any information in

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its possession or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court. Absent a court order to the contrary, the Non-Party shall

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bear the burden and expense of seeking protection in this court of its Protected Material.

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10.

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this Stipulated

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Protective Order, the Receiving Party must immediately (a) notify in writing the Designating

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Party of the unauthorized disclosures, (b) use its/her best efforts to retrieve all unauthorized

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copies of the Protected Material, (c) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (d) request such person or persons to

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execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work product
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protection, the Parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

MISCELLANEOUS

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12.1

Right to Further Relief. Nothing in this Order abridges the right of any person

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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

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Order no Party waives any right it/she otherwise would have to object to disclosing or

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producing any information or item on any ground not addressed in this Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Order.
12.3

Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party may

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not file in the public record in this action any Protected Material. A Party that seeks to file

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under seal any Protected Material must comply with Civil Local Rule 79-5. Protected

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Material may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will

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issue only upon a request establishing that the Protected Material at issue is privileged,

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protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving

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Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is

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denied by the Court, then the Receiving Party may file the information in the public record

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pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph 4, each

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Receiving Party must return all Protected Material to the Producing Party or destroy such

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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
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compilations, summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60-day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed, and (2) affirms that the

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Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert work product, even

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if such materials are, or contain, Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in Section 4

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for as long as any Protected Material remains in the possession of any Counsel or any

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Receiving Party.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: May _____, 2017.

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/s/ Mark A. Pruner
___________________________________
Mark M. Pruner
Attorney for Defendants Rayah Levy, and Rayah Rachel
Levy International Trust, Inc d/b/a/ ArteQuesta

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Dated: May _____, 2017.
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/s/ Andrew D. Winghart
___________________________________
Andrew D. Winghart
Winghart Law Group, Inc.
Attorney for Defendant Jessica Jacobson

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Dated: May _____, 2017.

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/s/ D. Gill Sperlein
____________________________________
D. Gill Sperlein
THE LAW OFFICE OF D. GILL SPERLEIN

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/s/ Abraham M. George
__________________________________
Abraham M. George
LAW OFFICES OF ABE GEORGE, ESQ. (pro hac vice)

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Attorneys for Plaintiffs Leslee A. Nelson individually and
as trustee and trustor of the Leslee A. Nelson revocable
trust and Nancy Barth

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ORDER

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PURSUANT TO STIPULATION AND GOOD CAUSE APPEARING, IT IS SO
ORDERED.

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May 30, 2017
DATED: ________________________

_____________________________________
MAXINE M. CHESNEY
United States District Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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_____________________________________________________ [print or type full address],

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declare under penalty of perjury that I have read in its entirety and understand the Stipulated

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Protective Order that was issued by the United States District Court for the Northern District

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of California on ________________, 2017, in the case of Nelson, et al. v. Levy, et al., Case

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Number 3:16-cv-3797 MMC. I agree to comply with and to be bound by all the terms of this

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Order and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this Order to any person or

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entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Northern District of California for the purpose of enforcing the terms of this Order, even if

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such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________
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Stipulation for Protective Order; Order Thereon