Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 1 of 20 Page ID #:761
MORGAN, LEWIS & BOCKIUS LLP UNITED STATES SECURITIES Joseph E. Floren, Bar No. 168292 AND EXCHANGE COMMISSION 1 joseph.floren@morganlewis.com One Market Street Ariella O. Guardi (pro hac vice) 2 Spear Street Tower guardia@sec.gov San Francisco, CA 94105-1596 Charles J. Kerstetter (pro hac vice) 3 Telephone: (415) 442-1391 kerstetterc@sec.gov Fax: (213) 612-2501 Jonathan A. Epstein (pro hac vice) 4 epsteinjo@sec.gov MORGAN, LEWIS & BOCKIUS LLP 175 West Jackson Blvd., Suite 1450 5 G. Jeffrey Boujoukos (pro hac vice) Chicago, Illinois 60604 jeff.boujoukos@morganlewis.com Telephone: (312) 353-7390 6 1701 Market Street Facsimile: (312) 353-7398 Philadelphia, PA 19103-2921 Donald W. Searles (Cal. Bar No. 7 Telephone: (215) 963-5000 135705) Fax: (215) 963-5001 searlesd@sec.gov 8 444 S. Flower Street, Suite 900 MORGAN, LEWIS & BOCKIUS LLP Los Angeles, California 90071 9 Jason S. Pinney (pro hac vice) Telephone: (323) 965-3998 jason.pinney@morganlewis.com Facsimile: (213) 443-1904 10 Andrew M. Buttaro (pro hac vice) andrew.buttaro@morganlewis.com 11 One Federal Street Attorneys for Plaintiff United States Boston, MA 02110-1726 Securities and Exchange Commission 12 Telephone: (617) 341-7700 Fax: (617) 341-7701 13 Attorneys for Defendant 14 WESTERN INTERNATIONAL SECURITIES, INC. 15 MURPHY COOKE LLP 16 PATRICK T. MURPHY, #178189 (patrick@murphycooke.com) 17 CHRISTOPHER COOKE, #142342 (ccooke@murphycooke.com) 18 533 Airport Blvd., Suite 400 Burlingame, CA 94010 19 Tel: (650) 401-2220
20 MARKUN ZUSMAN & COMPTON LLP JEFFREY K. COMPTON,#142969 21 (jcompton@mzclaw.com) NATHAN SMITH, #279124 22 (nsmith@mzclaw.com) DAVID J. SHINDER, #323499 23 (dshinder@mzclaw.com) 17383 W. Sunset Blvd., Suite A-380 24 Pacific Palisades, CA 90272 Tel: (310) 454-5900 25 Attorneys for Defendants 26 NANCY COLE, PATRICK EGAN, ANDY GITIPITYAPON, STEVEN 27 GRAHAM, AND THOMAS SWAN
28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-cv-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 2 of 20 Page ID #:762
1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 2 3 4 UNITED STATES SECURITIES AND Case No. 2:22-cv-04119-ODW-AFM EXCHANGE COMMISSION, 5 Judge Otis D. Wright, II Plaintiff, Magistrate Alexander F. MacKinnon 6 v. 7 WESTERN INTERNATIONAL [PROPOSED] STIPULATED 8 SECURITIES, INC., NANCY COLE, PROTECTIVE ORDER1 PATRICK EGAN, ANDY 9 GITIPITYAPON, STEVEN GRAHAM, and THOMAS SWAN, 10 Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 This Stipulated Protective Order is based substantially on the model protective 28 order provided under Magistrate Judge Alexander F. MacKinnon’s Procedures. [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 2 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 3 of 20 Page ID #:763
1 1. 2 A. PURPOSES, AND LIMITATIONS 3 Discovery in this action is likely to involve production of confidential, 4 proprietary, or private information for which special protection from public 5 disclosure and from use for any purpose other than prosecuting this litigation may be 6 warranted. Accordingly, Plaintiff United States Securities and Exchange 7 Commission (“SEC”), Defendants Western International Securities, Inc. (“WIS”), 8 Nancy Cole, Patrick Egan, Andy Gitipityapon, Steven Graham, and Thomas Swan 9 (“Individual Defendants” and collectively, the “Parties”) hereby stipulate to and 10 petition the court to enter the following Stipulated Protective Order (“Order”). The 11 Parties acknowledge that this Order does not confer blanket protections on all 12 disclosures or responses to discovery and that the protection it affords from public 13 disclosure and use extends only to the limited information or items that are entitled 14 to confidential treatment under the applicable legal principles. 15
16 B. GOOD CAUSE STATEMENT 17 This action is likely to involve trade secrets, customer and pricing lists and 18 other valuable research, development, commercial, financial, technical and/or 19 proprietary information for which special protection from public disclosure and from 20 use for any purpose other than prosecution of this action is warranted. Such 21 confidential and proprietary materials and information consist of, among other 22 things, confidential business or financial information, information regarding 23 confidential business practices, or other confidential research, development, or 24 commercial information (including information implicating privacy rights of third 25 26 27 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-cv-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 4 of 20 Page ID #:764
1 parties), information otherwise generally unavailable to the public, or which may be 2 privileged or otherwise protected from disclosure under state or federal statutes, court 3 rules, case decisions, or common law. Accordingly, to expedite the flow of 4 information, to facilitate the prompt resolution of disputes over confidentiality of 5 discovery materials, to adequately protect information the parties are entitled to keep 6 confidential, to ensure that the parties are permitted reasonable necessary uses of 7 such material in preparation for and in the conduct of trial, to address their handling 8 at the end of the litigation, and serve the ends of justice, a protective order for such 9 information is justified in this matter. It is the intent of the parties that information 10 will not be designated as confidential for tactical reasons and that nothing be so 11 designated without a good faith belief that it has been maintained in a confidential, 12 non-public manner, and there is good cause why it should not be part of the public 13 record of this case. 14
15 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 16 The Parties further acknowledge, as set forth in Section 13.3, below, that this 17 Order does not entitle them to file confidential information under seal; Local Civil 18 Rule 79-5 sets forth the procedures that must be followed and the standards that will 19 be applied when a Party seeks permission from the court to file material under seal. 20 There is a strong presumption that the public has a right of access to judicial 21 proceedings and records in civil cases. In connection with non-dispositive motions, 22 good cause must be shown to support a filing under seal. See Kamakana v. City and 23 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 24 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 25 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 26 require good cause showing), and a specific showing of good cause or compelling 27 reasons with proper evidentiary support and legal justification, must be made with 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 4 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 5 of 20 Page ID #:765
1 respect to Protected Material that a party seeks to file under seal. The parties’ mere 2 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 3 without the submission of competent evidence by declaration, establishing that the 4 material sought to be filed under seal qualifies as confidential, privileged, or 5 otherwise protectable—constitute good cause. 6 Further, if a party requests sealing related to a dispositive motion or trial, then 7 compelling reasons, not only good cause, for the sealing must be shown, and the 8 relief sought shall be narrowly tailored to serve the specific interest to be protected. 9 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each 10 item or type of information, document, or thing sought to be filed or introduced under 11 seal in connection with a dispositive motion or trial, the party seeking protection must 12 articulate compelling reasons, supported by specific facts and legal justification, for 13 the requested sealing order. Again, competent evidence supporting the application to 14 file documents under seal must be provided by declaration. 15 Any document that is not confidential, privileged, or otherwise protectable in 16 its entirety will not be filed under seal if the confidential portions can be redacted. If 17 documents can be redacted, then a redacted version for public viewing, omitting only 18 the confidential, privileged, or otherwise protectable portions of the document, shall 19 be filed. Any application that seeks to file documents under seal in their entirety 20 should include an explanation of why redaction is not feasible. 21 2. DEFINITIONS 22 2.1 Action: the civil enforcement action captioned SEC v. Western Int'l 23 Securities, Inc., et al., Case No. 2:22-cv-04119-ODW-AFM (C.D. Cal.). 24 2.2 Challenging Party: a Party or Non-Party that challenges the designation 25 of information or items under this Order. 26 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 27 how it is generated, stored or maintained) or tangible things that qualify for protection 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 5 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 6 of 20 Page ID #:766
1 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 2 Cause Statement. 3 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 4 their support staff). 5 2.5 Designating Party: a Party or Non-Party that designates information or 6 items that it produces in disclosures or in responses to discovery as 7 “CONFIDENTIAL.” 8 2.6 Disclosure or Discovery Material: all items or information, regardless 9 of the medium or manner in which it is generated, stored, or maintained (including, 10 among other things, testimony, transcripts, and tangible things), that are produced or 11 generated in disclosures or responses to discovery in this matter, as well as all 12 documents or information that were produced or generated by WIS or the Individual 13 Defendants in connection with the SEC investigation captioned In the Matter of 14 GWG Holdings, Inc. (C-8693) (“Investigation Material”).) 15 2.7 Expert: a person with specialized knowledge or experience in a matter 16 pertinent to the litigation who has been retained by a Party or its counsel to serve as 17 an expert witness or as a consultant in this Action. 18 2.8 House Counsel: attorneys who are employees of a party to this Action. 19 House Counsel does not include Outside Counsel of Record or any other outside 20 counsel. 21 2.9 Non-Party: any natural person, partnership, corporation, association, or 22 other legal entity not named as a Party to this Action. 23 2.10 Outside Counsel of Record: attorneys who are not employees of a party 24 to this Action but are retained to represent or advise a party to this Action and have 25 appeared in this Action on behalf of that party or are affiliated with a law firm that 26 has appeared on behalf of that party, and includes support staff. 27 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 6 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 7 of 20 Page ID #:767
1 2.11 Party: any Party to this Action, including all of its officers, directors, 2 employees, consultants, retained experts, Commissioners, and Counsel of Record 3 (and their support staffs). 4 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 5 Discovery Material in this Action. 6 2.13 Professional Vendors: persons or entities that provide litigation support 7 services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) 9 and their employees and subcontractors. 10 2.14 Protected Material: any Disclosure or Discovery Material that is 11 designated as “CONFIDENTIAL.” 12 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 13 from a Producing Party. 14 3. SCOPE 15 The protections conferred by this Stipulation and Order cover not only 16 Protected Material (as defined above), but also (1) any information copied or 17 extracted from Protected Material; (2) all copies, excerpts, summaries, or 18 compilations of Protected Material; and (3) any testimony, conversations, or 19 presentations by Parties or their Counsel that might reveal Protected Material. 20 Nothing in this Order shall be construed to limit any Producing Party’s use or 21 disclosure, outside the context of this litigation, of its own produced documents or 22 information that are subject to this Order. 23 Any use of Protected Material at trial shall be governed by the orders of the 24 trial judge. This Order does not govern the use of Protected Material at trial. 25 4. DURATION 26 Once a case proceeds to trial, information that was designated as 27 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 7 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 8 of 20 Page ID #:768
1 as an exhibit at trial becomes public and will be presumptively available to all 2 members of the public, including the press, unless compelling reasons supported by 3 specific factual findings to proceed otherwise are made to the trial judge in advance 4 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 5 showing for sealing documents produced in discovery from “compelling reasons” 6 standard when merits-related documents are part of court record). Accordingly, the 7 terms of this protective order do not extend beyond the commencement of the trial. 8 5. DESIGNATING PROTECTED MATERIAL 9 5.1 Confidential Information. A Party or Non-Party shall designate as 10 CONFIDENTIAL only such information that the Designating Party in good faith 11 believes in fact is confidential. Information and documents that may be designated 12 as CONFIDENTIAL include, but are not limited to, personal identifying information, 13 personal information that is protected by law, non-public information related to 14 criminal or regulatory matters, and other sensitive information that, if not restricted 15 as set forth in this order, may subject persons to potential injury or liability. 16 5.2 Non-Confidential Information. CONFIDENTIAL information shall 17 NOT include information that (a) is in the public domain at the time of disclosures, 18 as evidenced by a written document; (b) becomes part of the public domain through 19 no fault of the recipient, as evidenced by a written document; (c) the receiving party 20 can show by written document was in its rightful and lawful possession at the time 21 of disclosure; (d) lawfully comes into the recipient’s possession subsequent to the 22 time of disclosure from another source without restriction as to disclosure, provided 23 such third party as the right to make the disclosure to the receiving party. 24 5.3 Exercise of Restraint and Care in Designating Material for Protection. 25 Each Party or Non-Party that designates information or items for protection under 26 this Order must take care to limit any such designation to specific material that 27 qualifies under the appropriate standards. Mass, indiscriminate, or routinized 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 8 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 9 of 20 Page ID #:769
1 designations are prohibited. If it comes to a Designating Party’s attention that 2 information or items that it designated for protection do not qualify for protection, 3 that Designating Party must promptly notify all other Parties that it is withdrawing 4 the inapplicable designation. 5 5.4 Manner and Timing of Designations. Except as otherwise provided in 6 this Order (see, e.g., section 5.5 below), or as otherwise stipulated or ordered, 7 Disclosure or Discovery Material that qualifies for protection under this Order must 8 be clearly so designated before the material is disclosed or produced, except for the 9 Investigation Material, which can be designated at a later date. 10 Designation in conformity with this Order requires: 11 (a) For information in documentary form (e.g., paper or electronic 12 documents, but excluding transcripts of depositions or other pretrial or trial 13 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each 14 page that contains protected material. 15 (b) for testimony given in depositions or in other pretrial or trial 16 proceedings, that the Designating Party identifies all protected testimony. 17 (c) for information produced in some form other than documentary and for 18 any other tangible items, that the Producing Party affix in a prominent place on the 19 exterior of the container or containers in which the information is stored the legend 20 “CONFIDENTIAL.” 21 5.5 Inadvertent Failures to Designate. If timely corrected, an inadvertent 22 failure to designate qualified information or items does not, standing alone, waive 23 the Designating Party’s right to secure protection under this Order for such material. 24 Upon timely correction of a designation, the Receiving Party must make reasonable 25 efforts to assure that the material is treated in accordance with the provisions of this 26 Order. 27 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 9 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 10 of 20 Page ID #:770
1 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 2 designation of confidentiality at any time that is consistent with the Court’s 3 Scheduling Order. Unless a prompt challenge to a Designating Party’s confidentiality 4 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 5 economic burdens, or a significant disruption or delay of the Action, a Party does not 6 waive its right to challenge a confidentiality designation by electing not to mount a 7 challenge promptly after the original designation is disclosed. 8 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 9 resolution process under Local Rule 37-1 et seq. 10 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 11 joint stipulation pursuant to Local Rule 37-2. 12 6.4 The burden of persuasion in any such challenge proceeding shall be on 13 the Designating Party. Frivolous challenges, and those made for an improper purpose 14 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 15 expose the Challenging Party to sanctions. Unless the Designating Party has waived 16 or withdrawn the confidentiality designation, all parties shall continue to afford the 17 material in question the level of protection to which it is entitled under the Producing 18 Party’s designation until the Court rules on the challenge. 19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 Basic Principles. A Receiving Party may use Protected Material that is 21 disclosed or produced by another Party or by a Non-Party in connection with this 22 Action only for prosecuting, defending, or attempting to settle this Action. Such 23 Protected Material may be disclosed only to the categories of persons and under the 24 conditions described in this Order. When the Action has been terminated, a Receiving 25 Party must comply with the provisions of section 14 below (FINAL DISPOSITION). 26 27 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 10 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 11 of 20 Page ID #:771
1 Protected Material must be stored and maintained by a Receiving Party at a 2 location and in a secure manner that ensures that access is limited to the persons 3 authorized under this Order. 4 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 5 otherwise ordered by the court, permitted by law, necessary to comply with the order 6 of a court of competent jurisdiction, permitted in writing by the Designating Party, 7 or otherwise authorized herein, a Receiving Party may disclose any information or 8 item designated “CONFIDENTIAL” only to: 9 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 10 as employees of said Outside Counsel of Record to whom it is reasonably necessary 11 to disclose the information for this Action; 12 (b) the SEC personnel and Commissioners to whom disclosure is 13 reasonably necessary for this Action; 14 (c) the officers, directors, employees (including House Counsel) of the 15 Receiving Party to whom disclosure is reasonably necessary for this Action; 16 (d) Experts (as defined in this Order) of the Receiving Party to whom 17 disclosure is reasonably necessary for this Action and who have signed the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (e) the court and its personnel; 20 (f) court reporters and their staff; 21 (g) professional jury or trial consultants, mock jurors, and Professional 22 Vendors to whom disclosure is reasonably necessary for this Action and who have 23 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);; 24 (h) the author or recipient of a document containing the information or a 25 custodian or other person who otherwise possessed or knew the information; 26 (i) during their depositions, witnesses, and attorneys for witnesses, in the 27 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 11 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 12 of 20 Page ID #:772
1 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 2 not be permitted to keep any confidential information unless they sign the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 4 agreed by the Designating Party or ordered by the court. Pages of transcribed 5 deposition testimony or exhibits to depositions that reveal Protected Material may be 6 separately bound by the court reporter and may not be disclosed to anyone except as 7 permitted under this Stipulated Protective Order; 8 (j) any mediator or settlement officer, and their supporting personnel, 9 mutually agreed upon by any of the parties engaged in settlement discussions; and 10 (k) any person who is called, or whom counsel for a Party in good faith 11 believes may be called, to testify at trial in this Action and who have signed the 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A). 13 8. SEC USES OF PROTECTED MATERIAL 14 Notwithstanding anything in this Order to the contrary, this Order does not: 15 (a) apply to any documents, testimony, or other information produced to 16 or received by the SEC during its pre-filing investigation, including documents 17 previously marked as “CONFIDENTIAL” or “CONFIDENTIAL — FOIA 18 EXEMPT,” unless (i) the SEC now designates the information as 19 CONFIDENTIAL under this Order, or (ii) the producing party now designates 20 material they provided to the SEC in the pre-filing investigation as 21 CONFIDENTIAL under this Order; 22 (b) limit or restrict the retention, use, or disclosure of CONFIDENTIAL 23 information for any of the “Routine Uses of Information” identified in SEC Form 24 1662 (“Supplemental Information for Persons Requested to Supply Information 25 Voluntarily or Directed to Supply Information Pursuant to a Commission 26 Subpoena”), or as required for law enforcement activities or to otherwise regulate, 27 administer, or enforce the federal securities laws; or 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 12 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 13 of 20 Page ID #:773
1 (c) limit or restrict the retention, use, or disclosure of CONFIDENTIAL 2 information to the extent the SEC or its staff determines that such retention, use, or 3 disclosure is required by the Freedom of Information Act, 5 U.S.C. § 552, et seq., 4 or to fulfill the SEC’s recordkeeping, governmental reporting, or archival 5 obligations. 6 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 7 IN OTHER LITIGATION 8 If a Party is served with a subpoena or a court order issued in other litigation 9 that compels disclosure of any information or items designated in this Action as 10 “CONFIDENTIAL,” that Party must: 11 (a) promptly notify in writing the Designating Party. Such notification shall 12 include a copy of the subpoena or court order; 13 (b) promptly notify in writing the party who caused the subpoena or order 14 to issue in the other litigation that some or all of the material covered by the subpoena 15 or order is subject to this Protective Order. Such notification shall include a copy of 16 this Stipulated Protective Order; and 17 (c) cooperate with respect to all reasonable procedures sought to be pursued 18 by the Designating Party whose Protected Material may be affected. 19 If the Designating Party timely seeks a protective order, the Party served with 20 the subpoena or court order shall not produce any information designated in this 21 action as “CONFIDENTIAL” before a determination by the court from which the 22 subpoena or order issued, unless the Party has obtained the Designating Party’s 23 permission. The Designating Party shall bear the burden and expense of seeking 24 protection in that court of its confidential material and nothing in these provisions 25 should be construed as authorizing or encouraging a Receiving Party in this Action 26 to disobey a lawful directive from another court. 27 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 13 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 14 of 20 Page ID #:774
1 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2 PRODUCED IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non- 13 Party that some or all of the information requested is subject to a 14 confidentiality agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a 17 reasonably specific description of the information requested; and 18 (3) make the information requested available for inspection by the 19 Non-Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court within 21 14 days of receiving the notice and accompanying information, the Receiving Party 22 may produce the Non-Party’s confidential information responsive to the discovery 23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 24 not produce any information in its possession or control that is subject to the 25 confidentiality agreement with the Non-Party before a determination by the court. 26 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 27 of seeking protection in this court of its Protected Material. 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 14 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 15 of 20 Page ID #:775
1 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 3 Protected Material to any person or in any circumstance not authorized under this 4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 7 persons to whom unauthorized disclosures were made of all the terms of this Order, 8 and (d) request such person or persons to execute the “Acknowledgment and 9 Agreement to Be Bound” that is attached hereto as Exhibit A. 10 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 11 PROTECTED MATERIAL 12 Pursuant to Federal Rule of Evidence 502(d) and (e), the Parties agree to the 13 following procedure to address the inadvertent disclosure of a communication or 14 information covered by the attorney-client privilege or work product protection. The 15 production of Disclosure or Discovery Material, electronically stored information, or 16 other information, whether inadvertent or otherwise, is not a waiver of the privilege 17 or protection from discovery in this case or in any other federal or state proceeding. 18 This Order shall be interpreted to provide the maximum protection allowed by 19 Federal Rule of Evidence 502(d). 20 The Producing Party must notify the Receiving Party promptly, in writing, 21 upon discovery that privileged or protected information has been produced. Upon 22 receiving written notice from the Producing Party that privileged and/or protected 23 information has been produced, all such information, and all copies thereof, shall be 24 returned to the Producing Party within ten (10) business days of receipt of such notice 25 and the Receiving Party shall not use such information for any purpose until further 26 Order of the Court. The Receiving Party shall also attempt in good faith, to retrieve 27 and return or destroy all copies of the documents in electronic format. 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 15 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 16 of 20 Page ID #:776
1 The Receiving Party may contest the privilege or protected designation by the 2 Producing Party. However, the Receiving Party may not challenge the privilege or 3 protection claim by arguing that the disclosure itself was a waiver of any privilege or 4 protection. The Challenging Party shall give the Producing Party written notice of 5 the reason it contests the privilege or protected designation. The Challenging Party 6 shall seek an order from the court compelling the production of the information 7 within fifteen (15) days of the notice by the Producing Party. 8 13. MISCELLANEOUS 9 13.1 Right to Further Relief. Nothing in this Order abridges the right of any 10 person to seek its modification by the Court in the future. 11 13.2 Right to Assert Other Objections. By stipulating to the entry of this 12 Protective Order, no Party waives any right it otherwise would have to object to 13 disclosing or producing any information or item on any ground not addressed in this 14 Stipulated Protective Order. Similarly, no Party waives any right to object on any 15 ground to use in evidence of any of the material covered by this Protective Order. 16 13.3 Filing Protected Material. A Party that seeks to file under seal any 17 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 18 only be filed under seal pursuant to a court order authorizing the sealing of the 19 specific Protected Material at issue. If a Party’s request to file Protected Material 20 under seal is denied by the court, then the Receiving Party may file the information 21 in the public record unless otherwise instructed by the court. 22 14. FINAL DISPOSITION 23 After the final disposition of this Action, as defined in paragraph 4, within 60 24 days of a written request by the Designating Party, each Receiving Party must return 25 all Protected Material to the Producing Party or destroy such material. As used in this 26 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 27 summaries, and any other format reproducing or capturing any of the Protected 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 16 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 17 of 20 Page ID #:777
1 Material. Whether the Protected Material is returned or destroyed, the Receiving 2 Party must submit a written certification to the Producing Party (and, if not the same 3 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 4 (by category, where appropriate) all the Protected Material that was returned or 5 destroyed and (2) affirms that the Receiving Party has not retained any copies, 6 abstracts, compilations, summaries or any other format reproducing or capturing any 7 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 8 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 9 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 10 reports, attorney work product, and consultant and expert work product, even if such 11 materials contain Protected Material. Any such archival copies that contain or 12 constitute Protected Material remain subject to this Protective Order as set forth in 13 Section 4 (DURATION). 14 15. VIOLATION 15 Any violation of this Order may be punished by appropriate measures 16 including, without limitation, contempt proceedings and/or monetary sanctions. 17
18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 19
20 21 22 23 24 25 26 27 28 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 17 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 18 of 20 Page ID #:778
1 Dated: February 23, 2023 Respectfully submitted, 2 UNITED STATES SECURITIES AND MORGAN, LEWIS & BOCKIUS LLP, EXCHANGE COMMISSION, 3
4 By: /s/ Joseph E. Floren By: /s/Ariella Omholt Guardi_______ 5 Joseph E. Floren Ariella Omholt Guardi (pro hac vice) One Market Street Charles J. Kerstetter (pro hac vice) 6 Spear Street Tower Jonathan A. Epstein (pro hac vice) San Francisco, CA 94105-1596 175 West Jackson Blvd., Suite 1450 7 Telephone: (415) 442-1391 Chicago, Illinois 60604 joseph.floren@morganlewis.com guardia@sec.gov 8 kerstetterc@sec.gov G. Jeffrey Boujoukos (pro hac vice) epsteinjo@sec.gov 9 1701 Market Street Telephone: (312) 353-7390 Philadelphia, PA 19103-2921 Facsimile: (312) 353-7398 10 Telephone: (215) 963-5000 jeff.boujoukos@morganlewis.com 11 LOCAL COUNSEL Jason S. Pinney (pro hac vice) Donald W. Searles 12 Andrew M. Buttaro (pro hac vice) United States Securities and Exchange One Federal Street Commission 13 Boston, MA 02110-1726 444 S. Flower Street, Suite 900 Telephone: (617) 341-7700 Los Angeles, California 90071 14 jason.pinney@morganlewis.com Telephone: (323) 965-3998 andrew.buttaro@morganlewis.com Facsimile: (213) 443-1904 15 searlesd@sec.gov Attorneys for Defendant Western 16 International Securities, Inc.
17 MURPHY COOKE LLP 18 MARKUN ZUSMAN & COMPTON LLP, 19
20 By: /s/Patrick T. Murphy_______ PATRICK T. MURPHY, #178189 21 (patrick@murphycooke.com) CHRISTOPHER COOKE, #142342 22 (ccooke@murphycooke.com) 533 Airport Blvd., Suite 400 23 Burlingame, CA 94010 Tel: (650) 401-2220 24 JEFFREY K. COMPTON,#142969 25 (jcompton@mzclaw.com) NATHAN SMITH, #279124 26 (nsmith@mzclaw.com) DAVID J. SHINDER, #323499 27 (dshinder@mzclaw.com) 17383 W. Sunset Blvd., Suite A-380 28 Pacific Palisades, CA 90272 [PROPOSED] STIPULATED MO BR OG CA KN IU, SL LEW LPIS & 18 PROTECTIVE ORDER ATTORNEYS AT LAW 2:22-CV-04119-ODW-AFM SAN FRANCISCO Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 19o0f20 Page ID#:779
1 | Tel: (310) 454-5900 2 || Attorneys for Defendants Nancy Cole, Patrick Egan, Andy Gitipityapon, Steven 3 || Graham, and Thomas Swan FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 9 □□□ Dated: 2/23/2023 (dy Mex ke 10 By HONORABLE ALEXANDER F. MACKINNON MN UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 soncan Lawet [PROPOSED] STIPULATED BOCKIUS LLP 19 PROTECTIVE ORDER “SanERNeco. 2:22-CV-04119-ODW-AFM
Case 2:22-cv-04119-ODW-AFM Document 70 Filed 02/23/23 Page 20 of 20 Page ID #:780
1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _________________________________ [print or type full name], of 4 ___________________________________________________________ [print or 5 type full address], declare under penalty of perjury that I have read in its entirety 6 and understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on __________ [date] in the 8 case of SEC v. Western Int’l. Sec., Inc. et al., Case No. 22:22-cv-4119- ODW- 9 AFM. I agree to comply with and to be bound by all the terms of this Stipulated 10 Protective Order and I understand and acknowledge that failure to so comply could 11 expose me to sanctions and punishment in the nature of contempt. I solemnly 12 promise that I will not disclose in any manner any information or item that is 13 subject to this Stipulated Protective Order to any person or entity except in strict 14 compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint _____________________________ 19 [print or type full name] of ___________________________________________ 20 [print or type full address and telephone number] as my California agent for service 21 of process in connection with this action or any proceedings related to enforcement 22 of this Stipulated Protective Order. 23 DATED:________________________ BY: _________________________________ 24 Signature__________________________ Title_______________________________ 25 Address ___________________________ 26 City, State, Zip _____________________ 27 Telephone Number _______________
28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO