FL1, a series of Funlife, LLC v. J. Carol Duncan

Opinion

1 THE BAILEY LEGAL GROUP 25014 Las Brisas South, Suite B 2 Murrieta, CA 92562 Tel: (951) 304-7566 3 Fax: (951) 304-7571 JOHN L. BAILEY, ESQ. (103867) 4 THERESE BAILEY, ESQ. (171043)

5 Attorneys for Defendants /Counter Claimants Joanne Neubauer and David M. Neubauer as Co-Trustees 6 of the Survivor’s Trust under the Hendry 2007 Living Trust, u/d/t Oct. 1, 2007, and as Co-Trustees of the Bypass Trust Under the Hendry 2007 Living Trust, u/d/t Oct. 1, 2007 7

8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11

12 FL1, a series of Funlife, LLC, a Nevada Series ) Case No. 2:19-cv-01262 ODW (SKx) Limited Liability Company, ) 13 ) STIPULATED PROTECTIVE ORDER 14 Plaintiff, ) ) Complaint Filed: February 20, 2019 15 vs. ) 16 ) [Discovery document: Referred to J. Carol Duncan, Trustee of J. Carol Duncan ) Magistrate Judge Steve Kim] 17 Revocable Trust dated December 28, 2011; ) 18 Cyndi Hicks and David Hicks, Trustees of the ) David and Cyndi Hicks Family Trust, dated ) 19 July 17, 2008; Tyler J. Duncan and Whitney ) 20 Duncan, Trustees of the Tyler and Whitney ) Duncan Family Trust; Joanne Neubauer, ) 21 Trustee of the Survivor’s Trust and the Bypass ) 22 Trust under the Hendry 2007 Living Trust, ) u/d/t Oct. 1, 2007; Bank of America, N.A. as ) 23 successor-in-interest to Countrywide Home ) 24 Loans, Inc.; Pacific Premier Bancorp, Inc.; and ) DOES 1 through 10, inclusive ) 25 ) 26 Defendants. ) _____________________________________ ) 27 AND RELATED COUNTER CLAIMS ) 1 I. PURPOSES AND LIMITATIONS 2 A. Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public disclosure and 4 from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 6 Stipulated Protective Order. The parties acknowledge that this Order does not confer 7 blanket protections on all disclosures or responses to discovery and that the protection it 8 affords from public disclosure and use extends only to the limited information or items 9 that are entitled to confidential treatment under the applicable legal principles. The parties 10 further acknowledge, as set forth in Section XIII(C), below, that this Stipulated Protective 11 Order does not entitle them to file confidential information under seal; Civil Local Rule 12 79-5 sets forth the procedures that must be followed and the standards that will be applied 13 when a party seeks permission from the Court to file material under seal. 14 II. GOOD CAUSE STATEMENT 15 A. This action is likely to involve banking information, tax identification 16 numbers, social security numbers, driver’s license numbers, and financial information for 17 which special protection from public disclosure and from use for any purpose other than 18 prosecution of this action is warranted. Such confidential and proprietary materials and 19 information consist of, among other things, banking numbers, routing numbers, financial 20 information, social security numbers, driver’s license numbers, or other confidential 21 family trust information (including information implicating privacy rights of third 22 parties), information otherwise generally unavailable to the public, or which may be 23 privileged or otherwise protected from disclosure under state or federal statutes, court 24 rules, case decisions, or common law. Accordingly, to expedite the flow of information, 25 to facilitate the prompt resolution of disputes over confidentiality of discovery materials, 26 to adequately protect information the parties are entitled to keep confidential, to ensure 27 that the parties are permitted reasonable necessary uses of such material in preparation for 1 the ends of justice, a protective order for such information is justified in this matter. It is 2 the intent of the parties that information will not be designated as confidential for tactical 3 reasons and that nothing be so designated without a good faith belief that it has been 4 maintained in a confidential, non-public manner, and there is good cause why it should 5 not be part of the public record of this case. 6 III. DEFINITIONS 7 A. Action: This pending federal law suit and any related actions or legal 8 proceedings related to the properties in question. 9 B. Challenging Party: A Party or Non-Party that challenges the designation or 10 information or items under this Order. 11 C. “CONFIDENTIAL” Information or Items: Information (regardless of how 12 it is generated, stored or maintained) or tangible things that qualify for protection under 13 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 14 Statement. 15 D. Counsel: Outside Counsel of Record and House Counsel (as well as their 16 support staff). 17 E. Designating Party: A Party or Non-Party that designates information or 18 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 19 F. Disclosure or Discovery Material: All items or information, regardless of the 20 medium or manner in which it is generated, stored, or maintained (including, among other 21 things, testimony, transcripts, and tangible things), that are produced or generated in 22 disclosures or responses to discovery in this matter. 23 G. Expert: A person with specialized knowledge or experience in a matter 24 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 25 expert witness or as a consultant in this Action. 26 H. House Counsel: Attorneys who are employees of a party to this Action. 27 House Counsel does not include Outside Counsel of Record or any other outside counsel. 1 I. Non-Party: Any natural person, partnership, corporation, association, or 2 other legal entity not named as a Party to this action. 3 J. Outside Counsel of Record: Attorneys who are not employees of a party to 4 this Action but are retained to represent or advise a party to this Action prior to the 5 litigation and/or have appeared in this Action on behalf of that party or are affiliated with 6 a law firm which has appeared on behalf of that party, and includes support staff. 7 K. Party: Any party to this Action, including all of its officers, directors, 8 employees, consultants, retained experts, and their support staffs. 9 L. Producing Party: A Party or Non-Party that produces Disclosure or 10 Discovery Material in this Action. 11 M. Professional Vendors: Persons or entities that provide litigation support 12 services (e.g., photocopying, videotaping, translating, preparing exhibits or 13 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 14 their employees and subcontractors. 15 N. Protected Material: Any Disclosure or Discovery Material that is designated 16 as “CONFIDENTIAL.” 17 O. Receiving Party: A Party that receives Disclosure or Discovery Material 18 from a Producing Party. 19 IV. SCOPE 20 A. The protections conferred by this Stipulation and Order cover not only 21 Protected Material (as defined above), but also (1) any information copied or extracted 22 from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 23 Material; and (3) any testimony, conversations, or presentations by Parties or their 24 Counsel that might reveal Protected Material. 25 B. Any use of Protected Material at trial shall be governed by the orders of the 26 trial judge. This Order does not govern the use of Protected Material at trial. 27 V. DURATION 1 A. Once a case proceeds to trial, all of the information that was designated as 2 confidential or maintained pursuant to this Protective Order becomes public and will be 3 presumptively available to all members of the public, including the press, unless 4 compelling reasons supported by specific factual findings to proceed otherwise are made 5 to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu, 6 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing 7 documents produced in discovery from “compelling reasons” standard when merits- 8 related documents are part of court record). Accordingly, the terms of this Protective 9 Order do not extend beyond the commencement of the trial. 10 VI. DESIGNATING PROTECTED MATERIAL 11 A. Exercise of Restraint and Care in Designating Material for Protection 12 1. Each Party or Non-Party that designates information or items for 13 protection under this Order must take care to limit any such designation to specific 14 material that qualifies under the appropriate standards. The Designating Party must 15 designate for protection only those parts of material, documents, items, or oral or 16 written communications that qualify so that other portions of the material, 17 documents, items, or communications for which protection is not warranted are not 18 swept unjustifiably within the ambit of this Order. 19 2. Mass, indiscriminate, or routinized designations are prohibited. 20 Designations that are shown to be clearly unjustified or that have been made for an 21 improper purpose (e.g., to unnecessarily encumber the case development process 22 or to impose unnecessary expenses and burdens on other parties) may expose the 23 Designating Party to sanctions. 24 3. If it comes to a Designating Party’s attention that information or items 25 that it designated for protection do not qualify for protection, that Designating Party 26 must promptly notify all other Parties that it is withdrawing the inapplicable 27 designation. 1 1. Except as otherwise provided in this Order (see, e.g., Section B(2)(b) 2 below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that 3 qualifies for protection under this Order must be clearly so designated before the 4 material is disclosed or produced. 5 2. Designation in conformity with this Order requires the following: 6 a. For information in documentary form (e.g., paper or electronic 7 documents, but excluding transcripts of depositions or other pretrial or trial 8 proceedings), that the Producing Party affix at a minimum, the legend 9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page 10 that contains protected material. If only a portion or portions of the material 11 on a page qualifies for protection, the Producing Party also must clearly 12 identify the protected portion(s) (e.g., by making appropriate markings in the 13 margins). 14 b. A Party or Non-Party that makes original documents available 15 for inspection need not designate them for protection until after the 16 inspecting Party has indicated which documents it would like copied and 17 produced. During the inspection and before the designation, all of the 18 material made available for inspection shall be deemed “CONFIDENTIAL.” 19 After the inspecting Party has identified the documents it wants copied and 20 produced, the Producing Party must determine which documents, or portions 21 thereof, qualify for protection under this Order. Then, before producing the 22 specified documents, the Producing Party must affix the “CONFIDENTIAL 23 legend” to each page that contains Protected Material. If only a portion or 24 portions of the material on a page qualifies for protection, the Producing 25 Party also must clearly identify the protected portion(s) (e.g., by making 26 appropriate markings in the margins). 27 1 c. For testimony given in depositions, that the Designating Party 2 identify the Disclosure or Discovery Material on the record, before the close 3 of the deposition all protected testimony. 4 d. For information produced in form other than document and for 5 any other tangible items, that the Producing Party affix in a prominent place 6 on the exterior of the container or containers in which the information is 7 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 8 information warrants protection, the Producing Party, to the extent 9 practicable, shall identify the protected portion(s). 10 C. Inadvertent Failure to Designate 11 1. If timely corrected, an inadvertent failure to designate qualified 12 information or items does not, standing alone, waive the Designating Party’s right 13 to secure protection under this Order for such material. Upon timely correction of 14 a designation, the Receiving Party must make reasonable efforts to assure that the 15 material is treated in accordance with the provisions of this Order. 16 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 A. Timing of Challenges 18 1. Any party or Non-Party may challenge a designation of confidentiality 19 at any time that is consistent with the Court’s Scheduling Order. 20 B. Meet and Confer 21 1. The Challenging Party shall initiate the dispute resolution process under 22 Local Rule 37.1 et seq. 23 C. The burden of persuasion in any such challenge proceeding shall be on the 24 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 25 to harass or impose unnecessary expenses and burdens on other parties) may expose the 26 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 27 the confidentiality designation, all parties shall continue to afford the material in question 1 the level of protection to which it is entitled under the Producing Party’s designation until 2 the Court rules on the challenge. 3 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL 4 A. Basic Principles 5 1. A Receiving Party may use Protected Material that is disclosed or 6 produced by another Party or by a Non-Party in connection with this Action only 7 for prosecuting, defending, or attempting to settle this Action. Such Protected 8 Material may be disclosed only to the categories of persons and under the conditions 9 described in this Order. When the Action has been terminated, a Receiving Party 10 must comply with the provisions of Section XIV below. 11 2. Protected Material must be stored and maintained by a Receiving Party 12 at a location and in a secure manner that ensures that access is limited to the persons 13 authorized under this Order. 14 B. Disclosure of “CONFIDENTIAL” Information or Items 15 1. Unless otherwise ordered by the Court or permitted in writing by the 16 Designating Party, a Receiving Party may disclose any information or item 17 designated “CONFIDENTIAL” only to: 18 a. The Receiving Party’s Outside Counsel of Record in this 19 Action, as well as employees of said Outside Counsel of Record to whom it 20 is reasonably necessary to disclose the information for this Action; 21 b. The officers, directors, and employees (including House 22 Counsel) of the Receiving Party to whom disclosure is reasonably necessary 23 for this Action; 24 c. Experts (as defined in this Order) of the Receiving Party to 25 whom disclosure is reasonably necessary for this Action and who have 26 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 d. The Court and its personnel; 1 f. Professional jury or trial consultants, mock jurors, and 2 Professional Vendors to whom disclosure is reasonably necessary or this 3 Action and who have signed the “Acknowledgment and Agreement to be 4 Bound” attached as Exhibit A hereto; 5 g. The author or recipient of a document containing the 6 information or a custodian or other person who otherwise possessed or knew 7 the information; 8 h. During their depositions, witnesses, and attorneys for witnesses, 9 in the Action to whom disclosure is reasonably necessary provided: (i) the 10 deposing party requests that the witness sign the “Acknowledgment and 11 Agreement to Be Bound;” and (ii) they will not be permitted to keep any 12 confidential information unless they sign the “Acknowledgment and 13 Agreement to Be Bound,” unless otherwise agreed by the Designating Party 14 or ordered by the Court. Pages of transcribed deposition testimony or 15 exhibits to depositions that reveal Protected Material may be separately 16 bound by the court reporter and may not be disclosed to anyone except as 17 permitted under this Stipulated Protective Order; and 18 i. Any mediator or settlement officer, and their supporting 19 personnel, mutually agreed upon by any of the parties engaged in settlement 20 discussions. 21 IX. PROTECTED MATERIAL SUPOENAED OR ORDERED PRODUCED 22 IN OTHER LITIGATION 23 A. If a Party is served with a subpoena or a court order issued in other litigation 24 that compels disclosure of any information or items designated in this Action as 25 “CONFIDENTIAL,” that Party must: 26 1. Promptly notify in writing the Designating Party. Such 27 notification shall include a copy of the subpoena or court order; 1 2. Promptly notify in writing the party who caused the subpoena 2 or order to issue in the other litigation that some or all of the material covered 3 by the subpoena or order is subject to this Protective Order. Such notification 4 shall include a copy of this Stipulated Protective Order; and 5 3. Cooperate with respect to all reasonable procedures sought to be 6 pursued by the Designating Party whose Protected Material may be affected. 7 B. If the Designating Party timely seeks a protective order, the Party served with 8 the subpoena or court order shall not produce any information designated in this action as 9 “CONFIDENTIAL” before a determination by the Court from which the subpoena or 10 order issued, unless the Party has obtained the Designating Party’s permission. The 11 Designating Party shall bear the burden and expense of seeking protection in that court of 12 its confidential material and nothing in these provisions should be construed as 13 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 14 from another court. 15 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 16 PRODUCED IN THIS LITIGATION 17 A. The terms of this Order are applicable to information produced by a Non- 18 Party in this Action and designated as “CONFIDENTIAL.” Such information produced 19 by Non-Parties in connection with this litigation is protected by the remedies and relief 20 provided by this Order. Nothing in these provisions should be construed as prohibiting a 21 Non-Party from seeking additional protections. 22 B. In the event that a Party is required, by a valid discovery request, to produce 23 a Non-Party’s confidential information in its possession, and the Party is subject to an 24 agreement with the Non-Party not to produce the Non-Party’s confidential information, 25 then the Party shall: 26 1. Promptly notify in writing the Requesting Party and the Non-Party that 27 some or all of the information requested is subject to a confidentiality agreement 1 2. Promptly provide the Non-Party with a copy of the Stipulated 2 Protective Order in this Action, the relevant discovery request(s), and a reasonably 3 specific description of the information requested; and 4 3. Make the information requested available for inspection by the Non- 5 Party, if requested. 6 C. If the Non-Party fails to seek a protective order from this court within 14 7 days of receiving the notice and accompanying information, the Receiving Party may 8 produce the Non-Party’s confidential information responsive to the discovery request. If 9 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any 10 information in its possession or control that is subject to the confidentiality agreement 11 with the Non-Party before a determination by the court. Absent a court order to the 12 contrary, the Non-Party shall bear the burden and expense of seeking protection in this 13 court of its Protected Material. 14 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 A. If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this 17 Stipulated Protective Order, the Receiving Party must immediately (1) notify in writing 18 the Designating Party of the unauthorized disclosures, (2) use its best efforts to retrieve 19 all unauthorized copies of the Protected Material, (3) inform the person or persons to 20 whom unauthorized disclosures were made of all the terms of this Order, and (4) request 21 such person or persons to execute the “Acknowledgment and Agreement to be Bound” 22 that is attached hereto as Exhibit A. 23 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 A. When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other protection, the 27 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 1 established in an e-discovery order that provides for production without prior privilege 2 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach 3 an agreement on the effect of disclosure of a communication or information covered by 4 the attorney-client privilege or work product protection, the parties may incorporate their 5 agreement in the Stipulated Protective Order submitted to the Court. 6 XIII. MISCELLANEOUS 7 A. Right to Further Relief 8 1. Nothing in this Order abridges the right of any person to seek its 9 modification by the Court in the future. 10 B. Right to Assert Other Objections 11 1. By stipulating to the entry of this Protective Order, no Party waives 12 any right it otherwise would have to object to disclosing or producing any 13 information or item on any ground not addressed in this Stipulated Protective Order. 14 Similarly, no Party waives any right to object on any ground to use in evidence of 15 any of the material covered by this Protective Order. 16 C. Filing Protected Material 17 1. A Party that seeks to file under seal any Protected Material must 18 comply with Civil Local Rule 79-5. Protected Material may only be filed under 19 seal pursuant to a court order authorizing the sealing of the specific Protected 20 Material at issue. If a Party's request to file Protected Material under seal is denied 21 by the Court, then the Receiving Party may file the information in the public record 22 unless otherwise instructed by the Court. 23 XIV. FINAL DISPOSITION 24 A. After the final disposition of this Action, as defined in Section V, within sixty 25 (60) days of a written request by the Designating Party, each Receiving Party must return 26 all Protected Material to the Producing Party or destroy such material. As used in this 27 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 1 Whether the Protected Material is returned or destroyed, the Receiving Party must submit 2 a written certification to the Producing Party (and, if not the same person or entity, to the 3 Designating Party) by the 60 day deadline that (1) identifies (by category, where 4 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that 5 the Receiving Party has not retained any copies, abstracts, compilations, summaries or 6 any other format reproducing or capturing any of the Protected Material. Notwithstanding 7 this provision, Counsel are entitled to retain an archival copy of all pleadings, motion 8 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 9 deposition and trial exhibits, expert reports, attorney work product, and consultant and 10 expert work product, even if such materials contain Protected Material. Any such archival 11 copies that contain or constitute Protected Material remain subject to this Protective Order 12 as set forth in Section V. 13 B. Any violation of this Order may be punished by any and all appropriate 14 measures including, without limitation, contempt proceedings and/or monetary sanctions. 15 Stipulated Protective Order 16 Signature Page 17 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 18 DATED: _____________, 2019. THE BAILEY LEGAL GROUP

19 By: ___________________________ 20 John L. Bailey Therese Bailey 21 Attorneys for Joanne Neubauer and David 22 M. Neubauer as Co-Trustees of the Survivor’s Trust under the Hendry 2007 23 Living Trust, u/d/t Oct. 1, 2007, and as Co- 24 Trustees of the Bypass Trust Under the Hendry 2007 Living Trust, u/d/t Oct. 1, 25 2007 26

27 1 || DATED: , 2019. REICKER, PFAU, PYLE & McROY LLP 2 By: — 3 Robert B. Forouzandeh, Esq. 4 Attorneys for Plaintiff FL1, a series « Funlife, LLC, a Nevada Series Limite 5 Liability Company 6 DATED: , 2019. MCCARTHY & KROES 7 8 By: R. Chris Kroes 9 Attorneys for Defendants/Count 10 Claimants J. Carol Duncan, Tyler J. Dunca: Whitney Duncan, Cyndi Hicks and Dav: 11 Hicks, in their Trustee Capacities 12 13 14 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 15 ae ee 16 ||Dated: January 22, 2020 oe Ss 7 Steve Kim, U.S. Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28

Stipulated Protective Order Signature Page > : 3} FT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. orem ita a8? aaa DATED: |-10 2098 THE BAIAPY LEGAL GRouP By: /\ __ 6 spade Aailey ThepSe Bailey . 7 Aftomeys- for Joanne Neubauer and David M. Neubauer as Co-Trustees of the Survivor's Trust 8 vider the Hondry 2007 Living Trust, u/d/t Oct, 1, 2007, atid as Co-Trustees of the Bypass Trust 9 Under the Hendry 2067 Living Trust, u/d/t O¢t. L, 2007 ‘ 10 u ifa/ 2 DATED: | ! “fi, 2089, REICKER, PFAU, PYLE & McROY LLP 13 By Z Lj obert B. Korolizandeh, Esq. □□□ 14 Attomeys for Plaintiff. FL1, a series of Funlife, 5 LLG, a Nevada Series Limited Liability Company | i) / 2D | DATED: !//0 , 207%, MCCARTHY 8 ERE ey | By: AA IRE 43] ~~ RChris Se Attomeys for Defendants/Counter Claimants J. Card) i 194 Duacai, Tyler J. Duncan, Whitney. Duncan, Cyndi nol Hioks-dind David Hicks, in their Trustee Capacities 21- 5 FOR GOOD CAUSE SHOWN, JT IS SO ORDERED. ‘2 23 j] Dated: 24 Steve Kim, Magistrate Judge 25, 26 27 28] ~12- Supulated Protective Order

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1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _______________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulated Protective Order 6 that was issued by the United States District Court for the Central District of California 7 on ___________ in the case of FL1, a series of Funlife, LLC, v. Carol J. Duncan, etc., et 8 al., case no. 2:19-cv-01262ODW(SKx). I agree to comply with and to be bound by all 9 the terms of this Stipulated Protective Order and I understand and acknowledge that 10 failure to so comply could expose me to sanctions and punishment in the nature of 11 contempt. I solemnly promise that I will not disclose in any manner any information or 12 item that is subject to this Stipulated Protective Order to any person or entity except in 13 strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for 15 the Central District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this 17 action. 18 Date: __________________ 19 City and State where sworn and signed: ___________________ 20 Printed Name: _______________________ 21 Signature: __________________________ 22 23 24 25 26 27