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Case 5:07-cv-02214-JF Document 24 Filed 11/05/2007 Page 1 of 14
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SECURITIES AND EXCHANGE Case No. C-07-2214-JF
19 COMMISSION,
STIPULATED PROTECTIVE
20 Plaintiff, ORDER
21 v.
22 NANCY R. HEINEN AND FRED D.
ANDERSON,
23
Defendants.
24
25
26
27
28
STIPULATED PROTECTIVE ORDER -
CASE NO. C-07-2214-JF
Dockets.Justia.com
Case 5:07-cv-02214-JF Document 24 Filed 11/05/2007 Page 2 of 14
15 2. DEFINITIONS
16 2.1 Party: any party to this action, including all of its officers, directors,
17 employees, consultants, retained experts, and outside counsel (and their support staff).
18 2.2 Disclosure or Discovery Material: all items or information, regardless of
19 the medium or manner generated, stored, or maintained (including, among other things,
20 testimony, transcripts, or tangible things) that are produced or generated in disclosures or
21 responses to discovery in this matter.
22 2.3 “Confidential” Information or Items: information (regardless of how
23 generated, stored or maintained) or tangible things that qualify for protection under standards
24 developed under F.R.Civ.P. 26(c).
25 2.4 “Highly Confidential – Attorneys’ Eyes Only” Information or Items:
26 extremely sensitive “Confidential Information or Items” whose disclosure to another Party or
27 nonparty would create a substantial risk of serious injury that could not be avoided by less
28 restrictive means.
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26 3. SCOPE
27 The protections conferred by this Stipulation and Order cover not only Protected Material
28 (as defined above), but also any information copied or extracted therefrom, as well as all copies,
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4 4. DURATION
5 Even after the termination of this litigation, the confidentiality obligations imposed by this
6 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
7 otherwise directs.
8
1 testimony that is entitled to protection, and when it appears that substantial portions of the
2 testimony may qualify for protection, the Party or non-party that sponsors, offers, or gives the
3 testimony may invoke on the record (before the deposition or proceeding is concluded) a right to
4 have up to 20 days to identify the specific portions of the testimony as to which protection is
5 sought and to specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY
6 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”). Only those portions of the testimony that
7 are appropriately designated for protection within the 20 days shall be covered by the provisions
8 of this Stipulated Protective Order.
9 Transcript pages containing Protected Material must be separately bound
10 by the court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL”
11 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as instructed by the Party or
12 nonparty offering or sponsoring the witness or presenting the testimony.
13 (c) for information produced in some form other than documentary, and for
14 any other tangible items, that the Producing Party affix in a prominent place on the exterior of the
15 container or containers in which the information or item is stored the legend “CONFIDENTIAL”
16 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only portions of the
17 information or item warrant protection, the Producing Party, to the extent practicable, shall
18 identify the protected portions, specifying whether they qualify as “Confidential” or as “Highly
19 Confidential – Attorneys’ Eyes Only.”
20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
21 to designate qualified information or items as “Confidential” or “Highly Confidential –
22 Attorneys’ Eyes Only” does not, standing alone, waive the Designating Party’s right to secure
23 protection under this Order for such material. If material is appropriately designated as
24 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” after the material was initially
25 produced, the Receiving Party, on timely notification of the designation, must make reasonable
26 efforts to assure that the material is treated in accordance with the provisions of this Order.
27
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1 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective
2 Order.
3 (g) the author or recipient of the document or the original source of the
4 information.
5 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in writing by
7 the Designating Party, a Receiving Party may disclose any information or item designated
8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
9 (a) the Receiving Party’s Outside Counsel of record in this action, as well
10 as employees, contract attorneys, consultants and/or investigators for said Counsel to whom it is
11 reasonably necessary to disclose the information for this litigation;
12 (b) House Counsel of a Receiving Party (1) who has no involvement in
13 competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation,
14 and (3) who has signed the “Agreement to Be Bound by Protective Order” (Exhibit A);
15 (c) Experts (as defined in this Order) (1) to whom disclosure is reasonably
16 necessary for this litigation, (2) who have signed the “Agreement to Be Bound by Protective
17 Order” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4, below, have
18 been followed;
19 (d) the Court and its personnel;
20 (e) court reporters, their staffs, and professional vendors to whom
21 disclosure is reasonably necessary for this litigation;
22 (f) during their depositions or during an informal interview, witnesses in
23 the action to whom disclosure is reasonably necessary. Pages of transcribed deposition testimony
24 or exhibits to depositions that reveal Protected Material must be separately bound by the court
25 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective
26 Order.
27 (g) the author or recipient of the document or the original source of the
28 information.
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1 efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer
2 discussions) and sets forth the reasons advanced by the Designating Party for its refusal to
3 approve the disclosure.
4 In any such proceeding the Designating Party opposing disclosure to the
5 Expert shall bear the burden of proving that the risk of harm that the disclosure would entail
6 (under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected
7 Material to its Expert.
8 7.5 Disclosure of “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL –
9 ATTORNEYS’ EYES ONLY” Information or Items by the Securities and Exchange
10 Commission.
11 Nothing in this stipulation and order shall be construed to limit or otherwise abrogate the
12 Securities and Commission’s (“Commission”) ability to makes its files available to other
13 governmental agencies, as described in the “Routine Uses of Information” section of SEC Form
14 1662, a copy of which is attached hereto as Exhibit B. The Commission is free to disclose
15 “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
16 Information or Items in a manner consistent with the “Routine Uses of Information” section of
17 SEC Form 1662 without notifying or seeking permission from the Designating Party.
18
1 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must
2 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that
3 caused the subpoena or order to issue.
4 The purpose of imposing these duties is to alert the interested parties to the existence of
5 this Protective Order and to afford the Designating Party in this case an opportunity to try to
6 protect its confidentiality interests in the court from which the subpoena or order issued. The
7 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its
8 confidential material – and nothing in these provisions should be construed as authorizing or
9 encouraging a Receiving Party in this action to disobey a lawful directive from another court.
10
1 declaration establishing that the Protected Material is sealable, and must lodge a narrowly tailored
2 proposed sealing order, or must withdraw the designation of confidentiality. If the Designating
3 Party does not file its responsive declaration as required herein and as required by Civil Local
4 Rule 79-5(d), the document or proposed filing will be made part of the public record.
5
24 12. MISCELLANEOUS
25 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
26 person to seek its modification by the Court in the future.
27 12.2 Right to Assert Other Objections. By stipulating to the entry of this
28 Protective Order no Party waives any right it otherwise would have to object to disclosing or
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1 producing any information or item on any ground not addressed in this Stipulated Protective
2 Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
3 the material covered by this Protective Order.
4 Respectfully submitted,
5 Dated: November 5, 2007 MARC J. FAGEL
ROBERT L. MITCHELL
6 MARK P. FICKES
SAHIL W. DESAI
7
8
By: /s/ Mark P. Fickes
9 Mark P. Fickes
10
Attorneys for Plaintiff
11 SECURITIES AND EXCHANGE
COMMISSION
12
13
Dated: November 5, 2007 MILES EHRLICH
14 ISMAIL RAMSEY
RAMSEY & EHRLICH LLP
15
16
By: /s/ Miles Ehrlich
17 Miles Ehrlich
18
Attorneys for Defendant
19 NANCY R. HEINEN
20 ***
21
ORDER
22
24
DATED: ____________________, 2007
25
26
_________________________________
27 The Honorable Howard R. Lloyd
United States Magistrate Judge
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STIPULATED PROTECTIVE ORDER -
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