Hong et al v. Chartis Specialty Insurance Company

Filing 35

ORDER by Judge Claudia Wilken Granting ( 34 in case 4:13-cv-00777-CW; 26 in case 4:13-cv-01029-CW; 27 in case 4:13-cv-01769-CW) Stipulated Protective Order. (ndr, COURT STAFF) (Filed on 9/17/2013)

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STEVEN E. SHAPIRO, ESQ (SBN 120200)
[e-mail]
JOHN P. LEE, ESQ. (SBN 144062)
[e-mail]
Kim, Shapiro, Park & Lee
A Professional Law Corporation
3435 Wilshire Boulevard, Suite 2050
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
Attorneys for Defendants
DAVID CHIU, JUNG MIN MOK,
SANGCHOL AN, CHANG K. CHANG,
YONG OH CHOI, TONY HUEY, JUNG
KIM AND BHUPENDRA PATEL

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SEONG HOON HONG, et al.,

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Plaintiff,
vs.
CHARTIS SPECIALTY
INSURANCE COMPANY,
Defendant.

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YOUNG HO WON,

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Plaintiff,
vs.
CHARTIS SPECIALTY
INSURANCE COMPANY,
Defendant.

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
CASE NO.: CV 13-777 CW

CASE NO.: C 13-1029 CW

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C 13-777-CW

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SEONG HOON HONG,

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Plaintiff,
vs.
CHARTIS SPECIALTY
INSURANCE COMPANY,
Defendant.

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CASE NO.: C 13-1769 CW

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IT IS HEREBY STIPULATED AND AGREED by the undersigned parties
to this proceeding and ordered by this Court 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

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production of confidential, proprietary, or private information for which special

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protection from public disclosure may be warranted. Accordingly, the parties

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hereby stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections

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on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. The parties

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further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal;

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Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from

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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

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of information or items under this Order.
2.2 “CONFIDENTIAL” Information or Items: information (regardless of
how it is generated, stored or maintained) or tangible things that qualify for
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protection under Federal Rule of Civil Procedure 26(c).
2.3 Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
2.4 Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.5 Disclosure or Discovery Material: all items or information, regardless of

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

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this action.
2.6 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 its counsel to serve as

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an expert witness or as a consultant in this action.

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2.7 FDIC Action: the action filed in this court captioned Federal Deposit
Insurance Corporation for Innovative Bank v. Hong et al., No. 4:12-cv-2658-CW.

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.9 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party

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to this action but are retained to represent or advise a party to this action and have

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appeared in this action on behalf of that party or are affiliated with a law firm which

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has appeared on behalf of that party.

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2.11 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

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
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Discovery Material in this action.
2.13 Professional Vendors: persons or entities that provide litigation support

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

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

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and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
2.16 Defendant Receiving Party: Defendant Chartis Specialty, its parent and

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affiliates, and each of their officers, directors, authorized representatives, and

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employees.

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3. SCOPE

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The protections conferred by this Stipulation and Order cover not only

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

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the

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

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

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disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or

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otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality to

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the Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order.
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4. DURATION

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4.1 Even after final disposition of this litigation, the confidentiality

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obligations imposed by this Order shall remain in effect until a Designating Party

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agrees otherwise in writing or a court order otherwise directs. Final disposition

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shall be deemed to be the later of (1) dismissal of all claims and defenses in this

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action, with or without prejudice; and (2) final judgment herein after the completion

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and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time

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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.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or

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to impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2 Manner and Timing of Designations. Except as otherwise provided in
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each

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page that contains protected material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available

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

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has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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

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If only a portion or portions of the material on a page qualifies for protection, the

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

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appropriate markings in the margins).

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(b) for testimony given in deposition or in other pre-trial or trial

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proceedings, that the Designating Party identify on the record, before the close of

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the deposition, hearing, or other proceeding, all protected testimony. Alternatively,

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within thirty (30) days of receipt of a transcript or recording of a deposition or other

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pretrial or trial proceeding, a Party or Non-Party may designate such transcript or

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recording, or any portion thereof, as “CONFIDENTIAL” by notifying all Parties, in
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writing, of the specific pages and lines of the transcript or recording that should be

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treated as “CONFIDENTIAL.” All transcripts or recordings of depositions shall be

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treated as “CONFIDENTIAL” for thirty (30) days after receipt of the transcript or

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recording, or until written notice of a designation is received, whichever occurs

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first. Transcript pages containing protected material must be separately bound by

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the court reporter, who must affix to the top of each such page the legend

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“CONFIDENTIAL,” as instructed by the Designating Party or Non-Party.

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(c) for information produced in some form other than documentary
and for any other tangible items, that the Producing Party affix in a prominent place

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on the exterior of the container or containers in which the information or item is

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stored the legend “CONFIDENTIAL.” If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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5.4 Documents and Materials Designated as Confidential in the FDIC

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Action. Documents and materials bearing the legend "CONFIDENTIAL", in

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compliance with the Stipulated Protective Order or Amended Protective Order in

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the FDIC Action, and that are produced in this action, shall be deemed to be in

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compliance with Section 5.2.

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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

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designation of confidentiality at any time. Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid foreseeable,
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substantial unfairness, unnecessary economic burdens, or a significant disruption or

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delay of the litigation, a Party does not waive its right to challenge a confidentiality

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designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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

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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith

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and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of

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notice. In conferring, the Challenging Party must explain the basis for its belief that

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

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an opportunity to review the designated material, to reconsider the circumstances,

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and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first or establishes

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that the Designating Party is unwilling to participate in the meet and confer process

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in a timely manner.

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6.3 Judicial Intervention. If despite a good faith meet and confer effort, the

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dispute cannot be resolved informally by the parties within twenty-one (21) days of

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the Designating Party’s receipt of the written notice of challenge, the Challenging

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Party may seek a determination from the Court with respect to the propriety of the

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designation. The Designating Party shall then have fourteen (14) days from the

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filing of a motion contesting the designation or restriction on access to file an

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opposition to such motion, following which the Challenging Party shall be afforded

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five (5) days to file a reply memorandum. The “CONFIDENTIAL” status of the
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challenged material shall be maintained until the Court shall rule on the motion.

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While the Challenging Party must initiate the motion before the Court, it is the

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burden of the Party seeking protection under this Order to demonstrate that the

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“CONFIDENTIAL” designation is appropriate. Frivolous challenges, and those

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made for an improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other parties) may expose the Challenging Party to sanctions. A

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challenge under this paragraph shall not affect a Party’s right of access to

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“CONFIDENTIAL” material or to disclose information as provided for in this

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Order.

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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

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case only for prosecuting, defending, handling, or attempting to settle this litigation.

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order. When the litigation has been

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terminated, a Receiving Party must comply with the provisions of section 13 below

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(FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation;

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(b) the officers, directors, authorized representatives, and employees
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(including House Counsel) of the Receiving Party to whom disclosure is reasonably

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necessary for this litigation;

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

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disclosure is reasonably necessary for this litigation and who have signed the

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

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(d) auditors of any Party, insurers and reinsurers of Defendant, and

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any governmental, regulatory or administrative agencies to whom any party is

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subject;

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(e) the court and its personnel;
(f) court reporters and their staff, professional jury or trial

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consultants, mock jurors, and Professional Vendors to whom disclosure is

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

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and Agreement to Be Bound” (Exhibit A);

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(g) during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits

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to depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.

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(h) the author or recipient of a document containing the information or

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a custodian or other person who otherwise possessed or knew the information.

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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

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that 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
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include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena

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or order is subject to this Protective Order. Such notification shall include a copy

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of this Stipulated Protective 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.
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

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action

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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

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a Non-Party in this action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is protected

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional protections.

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

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to produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then 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
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confidentiality agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the 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

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court within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court.1Absent a court order to the contrary, the Non-Party

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

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Material.

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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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

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

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a
Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.
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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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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

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product protection, the parties may incorporate their agreement in the stipulated

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protective order 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

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person to seek its modification by the court in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

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Order.

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12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected

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Material. A Party that seeks to file under seal any Protected Material must comply

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with Civil Local Rule 79-5 and General Order 62. Protected Material may only be

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filed under seal pursuant to a court order authorizing the sealing of the specific

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Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order

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62, a sealing order will issue only upon a request establishing that the Protected

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Material at issue is privileged, protectable as a trade secret, or otherwise entitled to
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protection under the law. If a Receiving Party’s request to file Protected Material

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under seal pursuant to Civil Local Rule 79-5(d) and General Order 62 is denied by

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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

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paragraph 4, each Receiving Party other than the Defendant Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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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

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Protected Material. Whether the Protected Material is returned or destroyed, each

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Receiving Party other than the Defendant Receiving Party must submit a written

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

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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)

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affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain

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an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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

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such materials 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

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Section 4 (DURATION).

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The Defendant Receiving Party may retain copies of any Confidential

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Material within the normal course of its business. When such retention is no longer

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needed, such persons and entities shall return the retained documents or destroy

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those documents in accordance with their standard record destruction procedures,
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subject to any applicable litigation hold or any other documents or information hold

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imposed by any governmental body or court order. Any person or entity retaining

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such Confidential Material shall maintain its confidentiality in accordance with this

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Order until such documents are returned or destroyed.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: September 12, 2013

KIM, SHAPIRO, PARK & LEE

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By: /s/ Steve E. Shapiro

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Attorneys Defendants
DAVID CHIU, JUNG MIN MOK,
SANGCHOL AN, CHANG K.
CHANG, YONG OH CHOI,
TONY HUEY, JUNG KIM and
BHUPENDRA PATEL

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I attest that the concurrence in the filing of the document has been obtained
from each of the other Signatories.

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Dated: September 12, 2013

Respectfully submitted,
MORISON & PROUGH, LLP

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By: /s/ William C. Morison
Attorneys for Defendant
CHARTIS SPECIALTY
INSURANCE COMPANY
Hong et al. v. Chartis Specialty
Insurance Company, Case No.
C 13-777 CW; Hong v. Chartis
Specialty Insurance Company,
Case No. C 13-01769 CW; and
Won v. Chartis Specialty Insurance
Company, Case No. C 13-1029 CW

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- 15 [PROPOSED] STIPULATED PROTECTIVE ORDER
C 13-777-CW

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Dated: September 12, 2013

PARK & SYLVA

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By: /s/ Daniel E. Park

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Attorneys for Defendant
SEONG HOON HONG

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Dated: September 12, 2013

NASSIRI & JUNG, LLP

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By: /s/ Kassra P. Nassiri

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Attorneys for Defendant
YOUNG HO WON

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Dated: September 12, 2013

ROBERT LANE

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By: /s/Robert Lane

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Attorney for Defendant
HARRY MOOK CHOI

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IT IS SO ORDERED.

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Dated: ___________________________
___________________________
9/17/2013
_______________________________________
United States District Court Judge

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- 16 [PROPOSED] STIPULATED PROTECTIVE ORDER
C 13-777-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

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__________________ [print or type full address], declare under penalty of perjury that I have

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read in its entirety and understand the Stipulated Protective Order that was issued by the United

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States District Court for the Northern District of California on [date] in the case of

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_____________ [insert formal name of the case and the number and initials assigned to it by

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the court]. I agree to comply with and to be bound by all the terms of this Stipulated Protective

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

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

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manner any information or item that is subject to this Stipulated Protective 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 Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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Date:

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City and State where sworn and signed:

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Printed name:
[printed name]

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Signature:
[signature]

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- 17 [PROPOSED] STIPULATED PROTECTIVE ORDER
C 13-777-CW