Securities And Exchange Commission v. Sells et al

Filing 102

ORDER GRANTING 87 STIPULATED PROTECTIVE ORDER, filed by Securities And Exchange Commission, Christopher Sells, Timothy Murawski. Signed by Magistrate Judge Nathanael M. Cousins on 03/20/2013. (nclc1S, COURT STAFF) (Filed on 3/20/2013)

Case4:11-cv-04941-CW Document87 Filed01/28/13 Page1 of 5

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
vs.

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CHRISTOPHER SELLS and TIMOTHY
MURAWSKI,

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Defendants.

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Case No. CV 11-04941 CW
[PROPOSED] AMENDED
PROTECTIVE ORDER
GOVERNING PRODUCTION OF
DOCUMENTS BY NON-PARTY
SAINT BARNABAS MEDICAL
CENTER
Date Filed: October 6, 2011
Trial Date: None set.

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AMENDED PROTECTIVE ORDER GOVERNING PRODUCTION OF DOCUMENTS
Case No. CV 11-04941 CW

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1.

PURPOSES AND LIMITATIONS

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Plaintiff Christopher Sells (“Sells”) served Non-Party Saint Barnabas Medical Center

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(“SBMC”) with a subpoena dated April 24, 2012 (“Subpoena”) requesting production of certain

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documents in the above-captioned matter. The parties acknowledge that the provisions of the

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Stipulated Protective Order in this matter, entered August 31, 2012, Docket No. 67 (“Protective

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Order”), govern the production of documents by SBMC and any protections extended by said

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Protective Order are fully applicable to SBMC and to documents produced by SBMC during the

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course of this matter. The Protective Order, including the definitions set forth therein, is fully

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incorporated herein. The parties to this action and SBMC stipulate to this Amended Protective

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Order setting forth additional provisions governing solely the production and disposition of

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documents by SBMC in this matter.

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2.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
2.1

Pursuant to Federal Rules of Evidence 502(d) and (e), the inadvertent production

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of information that is privileged or otherwise protected will not operate as a waiver of privilege

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or work-product protection in this proceeding or in any other federal or state proceeding. For

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purposes of this Order, an inadvertent production includes a production without prior review of

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the information for privilege or work product, or with the use of linguistic tools in screening for

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privilege or work product protection. Nothing in this section precludes a Party from otherwise

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challenging a claim of privilege or work-product protection.

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2.2

In the event that privileged or otherwise protected information is inadvertently

produced, the following procedures will apply:
(a)

If SBMC discovers that it inadvertently produced information that SBMC

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claims is privileged or otherwise protected work product, SBMC will promptly (i) advise the

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Receiving Party of the inadvertent disclosure in writing (unless written notification is

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impractical), and (ii) explain the basis for the claim of privilege or work-product protection.

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After being notified, the Receiving Party shall treat the information in compliance with the

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procedures set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
704055294v2
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(b)

If a Receiving Party discovers information that it reasonably believes to be

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privileged or protected work product, the Receiving Party will treat the information in

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compliance with Federal Rule of Civil Procedure 26(b)(5)(B) and notify SBMC of the disclosure

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and identify the information. SBMC then has five (5) business days to (i) confirm whether it

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intends to assert that the information is privileged or work product and (ii) provide the basis for

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the claim of privilege or protection. The Receiving Party shall at all times treat the specified

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information in accordance with the procedures set forth in Federal Rule of Civil Procedure

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26(b)(5)(B).

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(c)

To the extent the Receiving Party challenges the claim of privilege or

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work product under this Section, the Parties must meet and confer in an attempt to resolve the

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matter. If the Parties cannot resolve the dispute, the Party challenging the claim of privilege or

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work product shall have a reasonable amount of time to present the issue to the Court consistent

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with Federal Rule of Civil Procedure 26(b)(5)(B).

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(d)

If a Party receives information that it does not reasonably believe to be

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privileged or otherwise protected work product, disclosure or use of the information by the

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Receiving Party, including production to a third party before notice to SBMC that the

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information was inadvertently produced, will not be deemed a violation of the Protective Order

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or Amended Protective Order. However, under these circumstances, the Receiving Party is

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precluded from arguing that SBMC waived privilege or work-product protection based solely on

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the Receiving Party’s disclosure of the inadvertently produced information to a third party.

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(e)

If the Receiving Party disclosed the inadvertently produced information to

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a third party before receiving notice of a claim of privilege or work-product protection, it must

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take reasonable steps to retrieve the information and to return it, sequester it until the claim is

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resolved, or destroy it.

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(f)

If, during a deposition, SBMC asserts for the first time that information

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contained in a marked exhibit was inadvertently produced and is privileged or protected work

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product and the Receiving Party disputes the assertion, the Receiving Party may present the

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information to the Court under seal for a determination of the claim on an expedited basis, where
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appropriate, and reserve the right to seek to question the deponent regarding the challenged

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information on an expedited basis, if necessary, to the extent not privileged or protected. SBMC

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shall make reasonable efforts to cooperate with the Receiving Party regarding additional

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questioning, if any, on such information to the extent ordered by the Court.

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(g)

Compliance with Federal Rule of Civil Procedure 26(b)(5)(B) does not

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waive the Receiving Party’s right to challenge SBMC’s assertion of privilege or work-product

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protection.

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3.

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JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK WITH REGARD TO ENFORCEMENT OF
SUBPOENA

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The Parties and SBMC acknowledge that nothing in this Amended Protective Order, or

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the conduct undertaken by SBMC pursuant thereto is intended to affect or alter the jurisdiction of

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the United States District Court of The Southern District of New York, through which the

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Subpoena was issued to SBMC, with respect to enforcement of the Subpoena.

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Dated: January 28, 2013

/s/ Ana N. Damonte
Ana N. Damonte, Esq.
PILLSBURY WINTHROP SHAW PITTMAN LLP
Four Embarcadero Center, 22nd Floor
San Francisco, CA 94111
[phone]
Attorneys for Defendant Christopher Sells

Dated: January 28, 2013
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/s/ Jennifer A. Huber

Dated: January 28, 2013

/s/ Susan F. LaMarca
Susan F. LaMarca
SECURITIES AND EXCHANGE COMMISSION
44 Montgomery Street
Suite 2600
San Francisco, CA 94104
[phone]
Attorneys for Plaintiff

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Jennifer A. Huber, Esq.
KEKER & VAN NEST LLP
633 Battery Street
San Francisco, CA 94111-1809
[phone]
Attorneys for Defendant Timothy Murawski

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Dated: January 28, 2013

/s/ Paul G. Nittoly
Paul G. Nittoly, Esq.
DRINKER BIDDLE & REATH LLP
A Delaware Limited Liability Partnership
500 Campus Drive
Florham Park, New Jersey 07932-1047
[phone]
Attorneys for Non-Party Saint Barnabas Medical
Center

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ATTESTATION OF SIGNATURES

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Pursuant to General Order 45.X.B. of the U.S. District Court for the Northern District of

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California, I hereby attest that the foregoing have concurred in the filing of this document.

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Dated: January 28, 2013

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/s/ Ana N. Damonte__
Ana N. Damonte, Esq.
PILLSBURY WINTHROP SHAW PITTMAN LLP
Four Embarcadero Center, 22nd Floor
San Francisco, CA 94111
[phone]
Attorneys for Defendant Christopher Sells

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NO

than
Judge Na

PURSUANT TO STIPULATION, IT IS SO ORDERED

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Dated: ___________ ____, 2013
March 20

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Nathaniel Cousins
United States Magistrate Judge s
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Case No. CV 11-04941 CW