Federal Deposit Insurance Corporation v. Hong et al
Filing
58
ORDER by Judge Claudia Wilken Granting 57 STIPULATED PROTECTIVE ORDER (ndr, COURT STAFF) (Filed on 2/25/2013)
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Anthony J. Barron, Bar No. 150447
abarron@nixonpeabody.com
Marcie Keenan Farano, Bar No. 177939
mfarano@nixonpeabody.com
Gina M. Fornario, Bar No. 246619
gfornario@nixonpeabody.com
NIXON PEABODY LLP
One Embarcadero Center, 18th Floor
San Francisco, California 94111-3600
Telephone: (415) 984-8200
Fax: (415) 984-8300
Attorneys for Plaintiff
FEDERAL DEPOSIT INSURANCE CORPORATION
AS RECEIVER FOR INNOVATIVE BANK
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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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FEDERAL DEPOSIT INSURANCE
CORPORATION AS RECEIVER FOR
INNOVATIVE BANK,
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Plaintiff,
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vs.
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SEONG HOON HONG; DAVID CHIU; JIN )
YOUNG KIM (AKA JIMMY KIM); JUNG )
MIN MOK; YOUNG HO WON;
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SANGCHOL AN; CHANG K. CHANG;
)
SUNG SANG CHO; HARRY MOOK
)
CHOI; YONG OH CHOI; TONY HUEY;
)
CHONG KIM; JUNG KIM; BHUPENDRA
PATEL,
[PROPOSED]
STIPULATED PROTECTIVE ORDER
Complaint Filed May 23, 2012
Defendants.
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CV-12-2658 CW
IT IS HEREBY STIPULATED AND AGREED by the undersigned parties to this proceeding
and ordered by this Court as follows:
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-1STIPULATED PROTECTIVE ORDER
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Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public disclosure
and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures
or responses to discovery and that the protection it affords from public disclosure and use extends
only to the limited information or items that are entitled to confidential treatment under the applicable
legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this
Stipulated Protective Order does not entitle them to file confidential information under seal; Civil
Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the
standards that will be applied when a party seeks permission from the court to file material under
seal.
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2.2
Civil Procedure 26(c).
2.3
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Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
as their support staff).
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Designating Party: a Party or Non-Party that designates information or items that it
produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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“CONFIDENTIAL” Information or Items: information (regardless of how it is
generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
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Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
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DEFINITIONS
2.1
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PURPOSES AND LIMITATIONS.
2.5
Disclosure or Discovery Material: all items or information, regardless of the medium
or manner in which it is generated, stored, or maintained (including, among other things, testimony,
transcripts, and tangible things), that are produced or generated in disclosures or responses to
discovery in this matter.
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-2STIPULATED PROTECTIVE ORDER
CASE NO. CV 12 2658 CW
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litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in this action.
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behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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storing, or retrieving data in any form or medium) and their employees and subcontractors.
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2.14
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Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
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Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
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Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
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Party: any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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Outside Counsel of Record: attorneys who are not employees of a party to this action
but are retained to represent or advise a party to this action and have appeared in this action on
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Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
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House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
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Expert: a person with specialized knowledge or experience in a matter pertinent to the
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material (as
defined above), but also (1) any information copied or extracted from Protected Material; (2) all
copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
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-3STIPULATED PROTECTIVE ORDER
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information: (a) any information that is in the public domain at the time of disclosure to a Receiving
Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
publication not involving a violation of this Order, including becoming part of the public record
through trial or otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to the Designating Party. Any use of
Protected Material at trial shall be governed by a separate agreement or order.
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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time pursuant to
applicable law.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party or
Non-Party that designates information or items for protection under this Order must take care to
limit any such designation to specific material that qualifies under the appropriate standards. The
Designating Party must designate for protection only those parts of material, documents, items, or
oral or written communications that qualify – so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept unjustifiably within
the ambit of this Order.
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Even after final disposition of this litigation, the confidentiality obligations imposed
by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
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DURATION
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
encumber or retard the case development process or to impose unnecessary expenses and burdens on
other parties) may expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated for
protection do not qualify for protection, that Designating Party must promptly notify all other Parties
that it is withdrawing the mistaken designation.
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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly 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)
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affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion
or portions of the material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which material it
would like copied and produced. During the inspection and before the designation, all of the material
made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
identified the documents it wants copied and produced, the Producing Party must determine which
documents, or portions thereof, qualify for protection under this Order. Then, before producing the
specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page
that contains Protected Material. If only a portion or portions of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
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for information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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Manner and Timing of Designations. Except as otherwise provided in this Order
(b)
for testimony given in deposition or in other pre-trial or trial proceedings, that
the Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony. Alternatively, within thirty (30) days of receipt of a transcript
or recording of a deposition or other pretrial or trial proceeding, a Party or Non-Party may designate
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such transcript or recording, or any portion thereof, as “CONFIDENTIAL” by notifying all Parties,
in writing, of the specific pages and lines of the transcript or recording that should be treated as
“CONFIDENTIAL.” All transcripts or recordings of depositions shall be treated as
“CONFIDENTIAL” for thirty (30) days after receipt of the transcript or recording, or until written
notice of a designation is received, whichever occurs first. Transcript pages containing protected
material must be separately bound by the court reporter, who must affix to the top of each such page
the legend “CONFIDENTIAL,” as instructed by the Designating Party or Non-Party.
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(c)
other tangible items, that the Producing Party affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend “CONFIDENTIAL.” If
only a portion or portions of the information or item warrant protection, the Producing Party, to the
extent practicable, shall identify the protected portion(s).
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5.3
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right to secure protection under this Order for such material. Upon timely correction of a
designation, the Receiving Party must make reasonable efforts to assure that the material is treated
in accordance with the provisions of this Order.
6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the original
designation is disclosed.
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating Party’s
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for information produced in some form other than documentary and for any
6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution process
by providing written notice of each designation it is challenging and describing the basis for each
challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
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recite that the challenge to confidentiality is being made in accordance with this specific paragraph
of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must
begin the process by conferring directly (in voice to voice dialogue; other forms of communication
are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
Party must explain the basis for its belief that the confidentiality designation was not proper and
must give the Designating Party an opportunity to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may proceed to the next stage of the challenge process only if it
has engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
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Judicial Intervention. If despite a good faith meet and confer effort, the dispute cannot be
resolved informally by the parties within twenty-one (21) days of the Designating Party’s receipt of
the written notice of challenge, the Challenging Party may seek a determination from the Court with
respect to the propriety of the designation. The Designating Party shall then have fourteen (14) days
from the filing of a motion contesting the designation or restriction on access to file an opposition to
such motion, following which the Challenging Party shall be afforded five (5) days to file a reply
memorandum. The “CONFIDENTIAL” status of the challenged material shall be maintained until
the Court shall rule on the motion. While the Challenging Party must initiate the motion before the
Court, it is the burden of the Party seeking protection under this Order to demonstrate that the
“CONFIDENTIAL” designation is appropriate. Frivolous challenges, and those made for an
improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
expose the Challenging Party to sanctions. A challenge under this paragraph shall not affect a Party’s
right of access to “CONFIDENTIAL” material or to disclose information as provided for in this
Order.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed or
produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order. When the litigation has
been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.
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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “CONFIDENTIAL” only to:
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(a)
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information for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A;
(b)
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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c)
Agreement to Be Bound” (Exhibit A);
(d)
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court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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the court and its personnel;
(e)
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Experts (as defined in this Order) of the Receiving Party to whom disclosure
is reasonably necessary for this litigation and who have signed the “Acknowledgment and
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the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed
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the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
(f)
during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
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separately bound by the court reporter and may not be disclosed to anyone except as permitted under
this Stipulated Protective Order.
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(g)
custodian or other person who otherwise possessed or knew the information.
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If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
must:
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(a)
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(b)
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c)
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If the Designating Party timely seeks a protective order, the Party served with the subpoena or
court order shall not produce any information designated in this action as “CONFIDENTIAL” before
a determination by the court from which the subpoena or order issued, unless the Party has obtained
the Designating Party’s permission. The Designating Party shall bear the burden and expense of
seeking protection in that court of its confidential material – and nothing in these provisions should
be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful
directive from another court.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
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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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promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena or order is subject to
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promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
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the author or recipient of a document containing the information or a
(a)
The terms of this Order are applicable to information produced by a Non-
Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-
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Parties in connection with this litigation is protected by the remedies and relief provided by this
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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
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additional protections.
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(b)
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Non-Party’s confidential information in its possession, and the Party is subject to an agreement with
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the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
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(1)
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(2)
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description of the information requested; and
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(3)
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make the information requested available for inspection by the Non-
Party.
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(c)
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If the Non-Party fails to object or seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the Receiving Party may
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produce 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 its
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possession or control that is subject to the confidentiality agreement with the Non-Party before a
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determination by the court.1 Absent a court order to the contrary, the Non-Party shall bear the
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burden and expense of seeking protection in this court of its Protected Material.
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promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
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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;
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In the event that a Party is required, by a valid discovery request, to produce a
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
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The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a NonParty and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.
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inform the person or persons to whom unauthorized disclosures were made of all the terms of this
Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.
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MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced
material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties
are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
modify whatever procedure may be established in an e-discovery order that provides for production
without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or information covered by
the attorney-client privilege or work product protection, the parties may incorporate their agreement
in the stipulated protective order submitted to the court.
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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 Order
no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
Party waives any right to object on any ground to use in evidence of any of the material covered by
this Protective Order.
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MISCELLANEOUS
12.1
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
12.3
Filing Protected Material. Without written permission from the Designating Party or
a court order secured after appropriate notice to all interested persons, a Party may not file in the
public record in this action any Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected
Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific
Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order
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will issue only upon a request establishing that the Protected Material at issue is privileged,
protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party’s
request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) and General Order
62 is denied by the court, then the Receiving Party may file the information in the public record
pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.
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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such material.
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by
the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that
was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant
and expert work product, even if such materials contain Protected Material. Any such archival copies
that contain or constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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CASE NO. CV 12 2658 CW
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Dated: February 21, 2013
NIXON PEABODY LLP
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By: /s/ Anthony J. Barron ________________________
Anthony J. Barron
abarron@nixonpeabody.com
Attorney for Plaintiff
FEDERAL DEPOSIT INSURANCE
CORPORATION AS RECEIVER FOR
INNOVATIVE BANK
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ATTESTATION CLAUSE
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I hereby attest that I have on file all holograph signatures for any signatures indicated by a
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“conformed” signature (/s/) within this efiled document.
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Dated: February 21, 2013
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KIM, SHAPIRO, PARK & LEE
By: /s/ John P. Lee
John P. Lee, Esq.
Steve Shapiro, Esq.
Attorney for Defendants
CHANG K. CHANG, JUNG MIN MOK,
YONG OH CHOI, DAVID CHIU, TONY
HUEY, JUNG KIM, BHUPENDRA
PATEL AND SANGCHOL AN
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Dated: February 21, 2013
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LURIE & PARK
By: /s/ Daniel Eal Young Park
Daniel Eal Young Park, Esq.
Attorney for Defendant
SEONG HOON HONG
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Dated: February 21, 2013
NASSIRI & JUNG LLP
By: /s/ Kassra Powell Nassiri
Kassra Powell Nassiri, Esq.
Attorney for Defendant
YOUNG HO WON
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-13STIPULATED PROTECTIVE ORDER
CASE NO. CV 12 2658 CW
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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DATED:
2/25/2013
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Hon. Claudia A. Wilkin
Hon. Claudia Wilken
United States District Court Judge
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-14STIPULATED PROTECTIVE ORDER
CASE NO. CV 12 2658 CW
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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
__________________ [print or type full address], declare under penalty of perjury that I have read in
its entirety and understand the Stipulated Protective Order that was issued by the United States
District Court for the Northern District of California on [date] in the case of _____________ [insert
formal name of the case and the number and initials assigned to it by the court]. I agree to
comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of
contempt. I solemnly promise that I will not disclose in any manner any information or item that is
subject to this Stipulated Protective Order to any person or 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 Northern
District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even
if such enforcement proceedings occur after termination of this action.
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I hereby appoint _________________________________ [print or type full name] of
__________________ [print or type full address and telephone number] as my California agent for
service of process in connection with this action or any proceedings related to enforcement of this
Stipulated Protective Order.
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Date:
City and State where sworn and signed:
Printed name:
[printed name]
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Signature:
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[signature]
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-1STIPULATED PROTECTIVE ORDER
CASE NO. CV 12 2658 CW
14334134.2
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