Federal Trade Commission v. Swish Marketing, Inc et al

Filing 96

STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIAL TREATMENT OF CONSUMER DATA ( #95 ). Signed by Judge Richard Seeborg on 6/18/10. (cl, COURT STAFF) (Filed on 6/18/2010)

*E-Filed 6/18/10*

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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] 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 CONSUMER DATA

In its initial disclosures, made pursuant to Fed. R. Civ. P. 26(a)(1), Plaintiff Federal Trade Commission ("FTC") identified documents that Giact Systems, Inc., provided to the FTC in response to a Civil Investigative Demand dated April 11, 2008. PROTECTIVE ORDER RE CONSUMER DATA - C09-03814 RS
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Those documents contain personally identifiable and private information, including bank account information, of consumers who were debited for the EverPrivate Card. To protect that information, and similar consumer data that Giact Systems, Inc., may provide to the parties in this case, the 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. Personally identifiable and private information of consumers that Giact

Systems, Inc., provides or has provided to any party in this case ("GIACT DATA") is designated confidential and is subject to the provisions of this Order. 2. GIACT DATA 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 passwordprotected computer or system which may be accessed only by persons qualified to have access to GIACT DATA 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. GIACT DATA shall not be used for any purpose by the receiving party

except for purposes in connection with this litigation. 4. A receiving party shall not disclose GIACT DATA to any person, except

the following persons: (a) Defendants, including the executives or other personnel of

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 GIACT DATA; (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 PROTECTIVE ORDER RE CONSUMER DATA - C09-03814 RS
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including employees of any firm retained to reproduce or store GIACT DATA 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) (e) Giact Systems, Inc; The Court and related officials involved in this litigation or any other

proceeding in which GIACT DATA is used, including judges, magistrates, commissioners, referees, jurors, and other personnel of the Court; provided, however, that GIACT DATA 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 GIACT DATA 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 GIACT DATA 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. 6. DATA shall: (a) read this Order;
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Any person listed in Subparagraphs 4(a) through 4(c) who receives GIACT

PROTECTIVE ORDER RE CONSUMER DATA - C09-03814 RS

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(b) (c)

use GIACT DATA only for purposes permitted by this Order; and not disclose or discuss GIACT DATA other than as permitted by this

GIACT DATA 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 GIACT DATA or other information for any purpose in this litigation. 9. In the case of any accidental or inadvertent disclosure of GIACT DATA,

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 GIACT DATA from the recipients thereof, and attempting to secure the agreement of the recipients not to further disseminate the GIACT DATA 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 GIACT DATA that are in the possession of such person or certify as to their destruction. Furthermore, within thirty days after the completion of this litigation GIACT DATA shall be collected by counsel for the receiving party and either destroyed or returned to the party who produced or provided the materials, or to Giact Systems, Inc. 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 nonappealable. 11. All parties and other persons who receive GIACT DATA shall be under a

continuing duty not to disclose such materials, except as permitted in this Order, and this PROTECTIVE ORDER RE CONSUMER DATA - C09-03814 RS
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duty shall continue in full force and effect after the completion of this litigation.

Respectfully submitted,

DATED: June 18, 2010

/S/ Kerry O'Brien 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: June 17, 2010

/S/ Michael A. Thurman MICHAEL L. MALLOW MICHAEL A. THURMAN LOEB & LOEB LLP Attorneys for Defendants SWISH MARKETING, INC. and MATTHEW PATTERSON

DATED: June 17, 2010

/S/ Brian Grossman BRIAN GROSSMAN TESSER & RUTTENBERG Attorneys for Defendants SWISH MARKETING, INC., MATTHEW PATTERSON, and JASON STROBER

DATED: June 17, 2010

/S/ Donald P. Gagliardi DONALD P. GAGLIARDI ELIZABETH D. LEAR BERGESON, LLP Attorneys for Defendant MARK BENNING

PROTECTIVE ORDER RE CONSUMER DATA - C09-03814 RS

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PURSUANT TO STIPULATION, IT IS SO ORDERED:

DATED: 6/18/10

RICHARD SEEBORG UNITED STATES DISTRICT JUDGE

PROTECTIVE ORDER RE CONSUMER DATA - C09-03814 RS

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