Federal Trade Commission v. Swish Marketing, Inc et al

Filing 105

STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIAL TREATMENT OF SENSITIVE PERSONALLY IDENTIFIABLE INFORMATION. Signed by Judge Richard Seeborg on 7/13/10. (cl, COURT STAFF) (Filed on 7/13/2010)

Federal Trade Commission v. Swish Marketing, Inc et al

Doc. 105

*E-Filed 7/13/10*

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WILLARD K. TOM General Counsel LISA D. ROSENTHAL, Bar # 179486 KERRY O'BRIEN, Bar # 149264 EVAN ROSE, Bar # 253478 ERIC D. EDMONDSON, D.C. Bar # 450294 Federal Trade Commission 901 Market Street, Ste. 570 San Francisco, CA 94103 [phone] (voice) [phone] (fax) [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff Federal Trade Commission UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FEDERAL TRADE COMMISSION, Plaintiff, v. SWISH MARKETING, INC., a corporation, MARK BENNING, individually and as an officer of SWISH MARKETING, INC., MATTHEW PATTERSON, individually and as an officer of SWISH MARKETING, INC., and JASON STROBER, individually and as an officer of SWISH MARKETING, INC., Defendants. Case No. C09-03814 RS STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING CONFIDENTIAL TREATMENT OF SENSITIVE PERSONALLY IDENTIFIABLE INFORMATION

Certain materials to be produced in connection with this litigation contain sensitive personally identifiable information ("PII"). PII includes an individual's Social Security PROTECTIVE ORDER RE PII - C09-03814 RS
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number, or an individual's name or address or phone number in combination with one or more of the following: date of birth; driver's license number or other state identification number, or a foreign country equivalent; passport number; financial account number; or credit card or debit card number. To protect such information, Plaintiff Federal Trade Commission ("FTC") and Defendants Swish Marketing, Inc., Mark Benning, Matthew Patterson, and Jason Strober ("Defendants") hereby stipulate to and request that the Court enter an Order requiring that: 1. PII may be designated confidential by any party, and thereby made subject

to the provisions of this Order. 2. PII shall be secured by any receiving party in such a manner as to minimize

the possibility of unintentional disclosure, including the physical storage thereof in a secure area or law office, the electronic storage thereof on a password-protected computer or system which may be accessed only by persons qualified to have access to PII pursuant to the terms of this Order, and the shipment thereof only to other qualified persons by a trackable method with restricted delivery to such qualified persons. 3. PII shall not be used for any purpose by the receiving party except

for purposes in connection with this litigation. 4. persons: (a) Defendants, including the executives or other personnel of A receiving party shall not disclose PII to any person, except the following

Defendants who are participants with respect to policy decisions for the trial or pretrial preparations with reference to this action and any other personnel of Defendants having a good-faith, reasonable need for obtaining access to PII; (b) FTC Commissioners and other employees of the FTC (including

consultants not covered under Subparagraph 4(c) below), the parties' respective counsel of record in this action, including the associates and paralegal, secretarial, clerical, and other regular and temporary employees of such counsel assisting such counsel and

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including employees of any firm retained to reproduce or store PII for use in accordance with this Order; (c) The independent experts or consultants retained or consulted by the

parties in this action, including the employees of such experts or consultants who are assigned to assist such experts or consultants; (d) Any person who is a witness or witness's counsel at deposition or

trial where the PII is reasonably related to the testimony of such witness, and court reporters and persons preparing transcripts of testimony; (e) The Court and related officials involved in this litigation or any other

proceeding in which PII is used, including judges, magistrates, commissioners, referees, jurors, and other personnel of the Court; provided, however, that PII shall be lodged or filed with the Court in accordance with the procedures for filing under seal as described in Paragraph 7 below; and (f) Any person designated by the Court in the interest of justice, upon

such terms as the Court deems proper, provided that, nothing in this Order shall impose any restrictions on the disclosure of PII by the FTC as provided by: (1) Sections 4.11(a) to (e) of the FTC's Rules of Practice and any cases construing them; (2) Sections 6(f) and 21 of the Federal Trade Commission Act and any cases construing them; and (3) any other legal obligation imposed upon the FTC. 5. Prior to disclosing PII to any person listed in Subparagraph 4(c), the

receiving party shall: (a) (b) provide such person with a copy of this Order; and obtain from such person a signed statement in the form attached

hereto as Exhibit A. Such statement shall be retained by counsel for the party and need not be filed with the Court or served upon opposing counsel unless requested for good cause or ordered by the Court. \\ \\ PROTECTIVE ORDER RE PII - C09-03814 RS
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6.

Any person listed in Subparagraphs 4(a) through 4(c) who receives PII

(a) (b) (c) 7.

read this Order; use PII only for purposes permitted by this Order; and not disclose or discuss PII other than as permitted by this Order.

PII that is lodged or filed with the Court shall be lodged or filed pursuant to

this Order in a sealed envelope or other appropriate sealed container marked in the manner required by the Court and Local Rule 79-5 for lodging and filing such materials under seal. Nothing contained in this Order shall be construed to limit the requirements of Local Rule 3-17(a) to redact, exclude, or submit under seal any information or documents described in that rule. 8. Nothing contained herein shall be construed to prejudice any party's right to

use PII or other information for any purpose in this litigation. 9. In the case of any accidental or inadvertent disclosure of PII, counsel for the

party responsible for the disclosure shall promptly notify the parties' respective counsel of the disclosure and make every effort to prevent further disclosure, including attempting to retrieve all copies of the PII from the recipients thereof, and attempting to secure the agreement of the recipients not to further disseminate the PII in any form. 10. At the time that any consultant, expert, or other person retained to assist

counsel in this action concludes participation in this action, such person shall return to counsel all copies of PII that are in the possession of such person or certify as to their destruction. Furthermore, within thirty days after the completion of this litigation PII shall be collected by counsel for the receiving party and either destroyed or returned to the party who produced the materials. For purposes of this Order, this action shall be considered completed when the entire proceeding has been resolved and any related orders have become final and non-appealable. \\ \\ PROTECTIVE ORDER RE PII - C09-03814 RS
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11.

All parties and other persons who receive PII shall be under a continuing

duty not to disclose such materials, except as permitted in this Order, and this duty shall continue in full force and effect after the completion of this litigation.

Respectfully submitted,

DATED: July 12, 2010

/s/ Evan Rose LISA D. ROSENTHAL KERRY O'BRIEN EVAN ROSE ERIC D. EDMONDSON Attorneys for Plaintiff FEDERAL TRADE COMMISSION

(The filer attests that concurrence in the filing of this document has been obtained from each of the other signatories.) DATED: July 12, 2010 /s/ Brian Grossman BRIAN GROSSMAN TESSER & RUTTENBERG Attorneys for Defendants SWISH MARKETING, INC., MATTHEW PATTERSON, and JASON STROBER DATED: July 12, 2010 /s/ Jay Fowler DANIEL J. BERGESON JAY FOWLER ELIZABETH D. LEAR BERGESON, LLP Attorneys for Defendant MARK BENNING PURSUANT TO STIPULATION, IT IS SO ORDERED:

DATED:

7/13/10

RICHARD SEEBORG UNITED STATES DISTRICT JUDGE

PROTECTIVE ORDER RE PII - C09-03814 RS

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