Chen et al v. U.S. Bank National Association et al

Filing 87


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THE HONORABLE RICARDO S. MARTINEZ 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 CHI CHEN, PI-CHUAN CHANG, PI-SHAN 9 CHANG, SHUQIN CHEN, XIANGLI CHEN, BINGXIN FAN, QIANG GUO, 10 JINSONG HUANG, LIHUA HUANG, JIAPING JIANG, XIAOWEN JIN, 11 CHENMIN LI, JINGHAN LI, YUN LIU, 12 XIAOWEN PAN, XIAOLI SONG, JINGUO WANG, JIE XIONG, BIN XU, LU YU, 13 QIANG ZHAO, YANYI ZHAO, WENQUAN ZHI, QUAN ZHOU, YIQIN 14 CHEN, KE LI, MING LI, LEI WANG, and ZHISHENG YUAN, 15 NO. 2:16-cv-01109-RSM STIPULATED PROTECTIVE ORDER Plaintiffs, 16 17 v. 18 U.S. BANK NATIONAL ASSOCIATION; QUARTZBURG GOLD, LP; ISR 19 CAPITAL, LLC; IDAHO STATE REGIONAL CENTER, LLC; and SIMA 20 MUROFF, 21 Defendants. 22 23 Pursuant to Federal Rule of Civil Procedure 26(c) and Local Civil Rule 26(c)(2), the 24 parties hereto hereby stipulate and agree to, and respectfully move this Court to enter, the below 25 Protective Order. 26 1. PURPOSES AND LIMITATIONS 27 Discovery in this action is likely to involve production of confidential, proprietary, or PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 1 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 private information for which special protection may be warranted. Accordingly, the parties 2 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The 3 parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 4 protection on all disclosures or responses to discovery, the protection it affords from public 5 disclosure and use extends only to the limited information or items that are entitled to 6 confidential treatment under the applicable legal principles, and it does not presumptively entitle 7 parties to file confidential information under seal. 8 2. “CONFIDENTIAL” MATERIAL 9 “Confidential” material shall include the following documents and tangible things 10 produced or otherwise exchanged: non-public bank statements and other records of banking or 11 financial transactions; accounting records; tax returns and tax information returns; financial 12 statements; personnel and/or employment records; insurance records; internal policies, 13 procedures, and forms; business plans, projections, or strategies; customer information; 14 information regarding particular financial accounts; passports; documents containing personally 15 identifying information; documents containing individual addresses and phone numbers; 16 documents containing names of children; documents containing individual financial account 17 numbers; documents containing any other information subject to protection under HIPAA or 18 other privacy laws; and sensitive information akin to the documents specified herein produced by 19 a non-party. 20 3. SCOPE 21 The protections conferred by this agreement cover not only confidential material (as 22 defined above), but also (1) any information copied or extracted from confidential material; (2) 23 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 24 conversations, or presentations by parties or their counsel that might reveal confidential material. 25 However, the protections conferred by this agreement do not cover information that is in the 26 public domain or becomes part of the public domain through trial or otherwise. 27 PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 2 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 2 4.1 Basic Principles. A receiving party may use material that is disclosed or produced 3 by another party or by a non-party in connection with this case only for prosecuting, defending, 4 or attempting to settle this litigation. Confidential material may be disclosed only to the 5 categories of persons and under the conditions described in this agreement. Confidential 6 material must be stored and maintained by a receiving party at a location and in a secure manner 7 that ensures that access is limited to the persons authorized under this agreement. 8 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 9 ordered by the court or permitted in writing by the designating party, a receiving party may 10 disclose any confidential material only to: 11 (a) the receiving party’s counsel of record in this action, as well as employees of 12 counsel to whom it is reasonably necessary to disclose the information for this litigation; 13 (b) the officers, directors, and employees (including in house counsel) of the 14 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 15 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 16 designated; 17 (c) experts and consultants to whom disclosure is reasonably necessary for this 18 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (d) the court, court personnel, and court reporters and their staff; 20 (e) copy or imaging services retained by counsel to assist in the duplication of 21 confidential material, provided that counsel for the party retaining the copy or imaging service 22 instructs the service not to disclose any confidential material to third parties and to immediately 23 return all originals and copies of any confidential material; 24 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 25 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 26 A), unless otherwise agreed by the designating party or ordered by the court. Pages of 27 transcribed deposition testimony or exhibits to depositions that reveal confidential material must PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 3 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 2 under this agreement; (g) 3 the author or recipient of a document containing the information or a custodian or 4 other person who otherwise possessed or knew the information. 4.3 5 Filing Confidential Material. Before filing confidential material or discussing or 6 referencing such material in court filings, the filing party shall confer with the designating party 7 to determine whether the designating party will remove the confidential designation, whether the 8 document can be redacted, or whether a motion to seal or stipulation and proposed order is 9 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the 10 standards that will be applied when a party seeks permission from the court to file material under 11 seal. 12 5. DESIGNATING PROTECTED MATERIAL 13 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 14 or non-party that designates information or items for protection under this agreement must take 15 care to limit any such designation to specific material that qualifies under the appropriate 16 standards. The designating party must designate for protection only those parts of material, 17 documents, items, or oral or written communications that qualify, so that other portions of the 18 material, documents, items, or communications for which protection is not warranted are not 19 swept unjustifiably within the ambit of this agreement. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 21 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 22 unnecessarily encumber or delay the case development process or to impose unnecessary 23 expenses and burdens on other parties) expose the designating party to sanctions. 24 If it comes to a designating party’s attention that information or items that it designated 25 for protection do not qualify for protection, the designating party must promptly notify all other 26 parties that it is withdrawing the mistaken designation. 27 5.2 Manner and Timing of Designations. PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 4 Except as otherwise provided in this DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 2 ordered, disclosure or discovery material that qualifies for protection under this agreement must 3 be clearly so designated before or when the material is disclosed or produced. 4 (a) Information in documentary form: (e.g., paper or electronic documents and 5 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 6 the designating party must affix the word “CONFIDENTIAL” to each page that contains 7 confidential material. If only a portion or portions of the material on a page qualifies for 8 protection, the producing party also must clearly identify the protected portion(s) (e.g., by 9 making appropriate markings in the margins). 10 (b) Testimony given in deposition or in other pretrial or trial proceedings: the parties 11 must identify on the record, during the deposition, hearing, or other proceeding, all protected 12 testimony, without prejudice to their right to so designate other testimony after reviewing the 13 transcript. Any party or non-party may, within fifteen days after receiving a deposition 14 transcript, designate portions of the transcript, or exhibits thereto, as confidential. 15 (c) Other tangible items: the producing party must affix in a prominent place on the 16 exterior of the container or containers in which the information or item is stored the word 17 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 18 the producing party, to the extent practicable, shall identify the protected portion(s). 19 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 20 designate qualified information or items does not, standing alone, waive the designating party’s 21 right to secure protection under this agreement for such material. Upon timely correction of a 22 designation, the receiving party must make reasonable efforts to ensure that the material is 23 treated in accordance with the provisions of this agreement. 24 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 25 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 26 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 27 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 5 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 2 challenge a confidentiality designation by electing not to mount a challenge promptly after the 3 original designation is disclosed. 4 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 5 regarding confidential designations without court involvement. Any motion regarding 6 confidential designations or for a protective order must include a certification, in the motion or in 7 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 8 conference with other affected parties in an effort to resolve the dispute without court action. 9 The certification must list the date, manner, and participants to the conference. A good faith 10 effort to confer requires a face-to-face meeting or a telephone conference. 11 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 12 intervention, the designating party may file and serve a motion to retain confidentiality under 13 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 14 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 15 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 16 other parties) may expose the challenging party to sanctions. All parties shall continue to 17 maintain the material in question as confidential until the court rules on the challenge. 18 7. IN OTHER LITIGATION 19 20 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a party is served with a subpoena or a court order issued in other litigation that compels 21 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 22 party must: 23 (a) promptly notify the designating party in writing and include a copy of the 24 subpoena or court order; 25 (b) promptly notify in writing the party who caused the subpoena or order to issue in 26 the other litigation that some or all of the material covered by the subpoena or order is subject to 27 this agreement. Such notification shall include a copy of this agreement; and PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 6 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 2 designating party whose confidential material may be affected. 3 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 5 material to any person or in any circumstance not authorized under this agreement, the receiving 6 party must immediately (a) notify in writing the designating party of the unauthorized 7 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, 8 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 9 this agreement, and (d) request that such person or persons execute the “Acknowledgment and 10 Agreement to Be Bound” that is attached hereto as Exhibit A. 11 9. PROTECTED MATERIAL 12 13 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a producing party gives notice to receiving parties that certain inadvertently 14 produced material is subject to a claim of privilege or other protection, the obligations of the 15 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). The 16 inadvertent disclosure in this litigation of a communication, document, or information covered 17 by the attorney-client privilege, work product doctrine, or other privilege or protection from 18 disclosure, shall not waive any such applicable privilege or protection. 19 10. NON TERMINATION AND RETURN OF DOCUMENTS 20 Within 60 days after the termination of this action, including all appeals, each receiving 21 party must destroy (with certification of such destruction provided to the producing party) or 22 return all confidential material to the producing party, including all copies, extracts and 23 summaries thereof. Notwithstanding this provision, counsel are not required to return or destroy 24 material in data backups made in the ordinary course of business, and are entitled to retain one 25 archival copy of all documents filed with the court, trial, deposition, and hearing transcripts, 26 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 27 consultant and expert work product, even if such materials contain confidential material. The PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 7 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 confidentiality obligations imposed by this agreement shall remain in effect until a designating 2 party agrees otherwise in writing or a court orders otherwise. 3 11. NON WAIVER 4 Nothing herein shall prevent any party or non-party from seeking an order from the court 5 further restricting the use or access to information, or seeking any other relief from the court. 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 7 /s/ Michael Black (by email authorization) 8 Michael Black, admitted pro hac vice Parr Brown Gee & Loveless 9 101 South 200 East, Suite 700 10 Salt Lake City, UT 84111 11 and Lawrence Carl Locker, WSBA #15819 12 Steven O Fortney, WSBA # 44704 13 Summit Law Group 315 Fifth Avenue South, Suite 1000 14 Seattle, WA 98104-2682 (206) 676-7000 15 16 Attorneys for Plaintiffs Except Bin Xu 17 18 /s/ Matthew Sava (by email authorization) Matthew Sava, admitted pro hac vice 19 Reid & Wise LLC 250 West 34th Street 20 One Penn Plaza, Suite 2015 21 New York, NY 10119 (212) 858-9968 22 and 23 Benjamin I. VandenBerghe, WSBA #35477 Montgomery Purdue Blankinship & Austin 24 701 Fifth Avenue, Suite 5500 25 Seattle, WA 98104 (206) 682-7090 26 Attorneys for Plaintiff Bin Xu 27 PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 8 /s/ Shawn Larsen-Bright Peter Ehrlichman, WSBA #6591 Shawn Larsen-Bright, WSBA #37066 Andrea Yang, WSBA #50613 Dorsey & Whitney LLP 701 Fifth Avenue, Suite 6100 Seattle, WA 98104 (206) 903-8800 Attorneys for Defendant U.S. Bank National Association /s/ Eric Swartz (by email authorization) Eric B. Swartz, admitted pro hac vice Jones & Swartz PLLC 623 West Hays Boise, ID 83702 (208) 489-8988 and Thomas M. Brennan, WSBA #30662 Krysta A. Liveris, WSBA #39581 McKay Chadwell, PLLC 600 University Street, Suite 1601 Seattle, WA 98101-4124 (206) 233-2800 Attorneys for Defendants Quartzburg Gold, LP, ISR Capital, LLC, Idaho State Regional Center, LLC, and Sima Muroff DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 2 3 PURSUANT TO STIPULATION, IT IS SO ORDERED. 4 Dated this 22 day of March 2017. A 5 6 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 9 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, 3 [print or type full name], of [print or type full address], declare under penalty of perjury that I have read in its 4 5 entirety and understand the Stipulated Protective Order that was issued by the United States 6 District Court for the Western District of Washington on [date] in the case of Chen et al. v. U.S. 7 Bank National Association et al., Case No. 2:16-cv-1109. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 9 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 10 solemnly promise that I will not disclose in any manner any information or item that is subject to 11 this Stipulated Protective Order to any person or entity except in strict compliance with the 12 provisions of this Order. I further agree to submit to the jurisdiction of the United States District 13 Court for the Western District of Washington for the purpose of enforcing the terms of this 14 Stipulated Protective Order, even if such enforcement proceedings occur after termination of this 15 action. 16 Date: 17 City and State where sworn and signed: 18 Printed name: 19 Signature: 20 21 22 23 24 25 26 27 PROTECTIVE ORDER 2:16-cv-01109-RSM 4813-2263-6354\2 10 DORSEY & WHITNEY LLP 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820

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