1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9

10 UNITED STATES OF AMERICA, Case No. 2:16-cv-07965-DMG-RAO 11 Plaintiff, 12 STIPULATED PROTECTIVE v. ORDER 13 $461,940.00 IN U.S. CURRENCY, 14 $88,984.00 IN U.S. CURRENCY, AND $146,763.17 IN BANK 15 FUNDS, 16 Defendants.

17 MIDCAP FUNDING XVII 18 TRUST, 19 Claimant. 20 21

22 Plaintiff United States of America (the government”), by and through its 23 counsel of record, and claimant Midcap Funding XVII Trust (“Claimant”), by and 24 through its counsel of record (collectively the “Parties”), request that the Court enter 25 this Stipulated Protective Order.1 26 /// 27 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. 11 B. GOOD CAUSE STATEMENT 12 The Parties believe that a protective order is necessary because the 13 government intends to produce to Claimant discovery materials containing the 14 personal identifying information (“PII”) of third parties and material that may 15 contain information within the scope of the Privacy Act. The government believes 16 that disclosure of this information without limitation risks the privacy and security 17 of the information’s legitimate owners. Because the government has an ongoing 18 obligation to protect third parties’ PII, it cannot produce unredacted discovery 19 containing this information in the absence of a Protective Order. If the government 20 were to attempt to redact the information in compliance with Federal Rule of Civil 21 Procedure 5.2, the Central District of California’s Local Rules regarding redaction, 22 and the Privacy Policy of the United States Judicial Conference, the Claimant would 23 receive a set of discovery that could be confusing and difficult to understand, and it 24 could be challenging for Claimant’s counsel to adequately evaluate the case, provide 25 advice to Claimant, or prepare for trial. Accordingly, to expedite the flow of 26 information, to facilitate the prompt resolution of disputes over confidentiality of 27 discovery materials, to adequately protect information the parties are entitled to keep 1 such material in preparation for and in the conduct of trial, to address their handling 2 at the end of the litigation, and serve the ends of justice, a protective order for such 3 information is justified in this matter. It is the intent of the parties that information 4 will not be designated as confidential for tactical reasons and that nothing be so 5 designated without a good faith belief that it has been maintained in a confidential, 6 non-public manner, and there is good cause why it should not be part of the public 7 record of this case. 8 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 9 The parties further acknowledge, as set forth in Section 12.3, below, that this 10 Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 12 and the standards that will be applied when a party seeks permission from the court 13 to file material under seal. 14 There is a strong presumption that the public has a right of access to judicial 15 proceedings and records in civil cases. In connection with non-dispositive motions, 16 good cause must be shown to support a filing under seal. See Kamakana v. City and 17 County of Honolulu,

(9th Cir. 2006); Phillips v. Gen. Motors 18 Corp.,

, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, 19 Inc.,

(E.D. Wis. 1999) (even stipulated protective orders 20 require good cause showing), and a specific showing of good cause or compelling 21 reasons with proper evidentiary support and legal justification, must be made with 22 respect to Protected Material that a party seeks to file under seal. The parties’ mere 23 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 24 without the submission of competent evidence by declaration, establishing that the 25 material sought to be filed under seal qualifies as confidential, privileged, or 26 otherwise protectable—constitute good cause. 27 Further, if a party requests sealing related to a dispositive motion or trial, then 1 relief sought shall be narrowly tailored to serve the specific interest to be protected. 2 See Pintos v. Pacific Creditors Ass’n,

(9th Cir. 2010). For 3 each item or type of information, document, or thing sought to be filed or introduced 4 under seal in connection with a dispositive motion or trial, the party seeking 5 protection must articulate compelling reasons, supported by specific facts and legal 6 justification, for the requested sealing order. Again, competent evidence supporting 7 the application to file documents under seal must be provided by declaration. 8 Any document that is not confidential, privileged, or otherwise protectable in 9 its entirety will not be filed under seal if the confidential portions can be redacted. 10 If documents can be redacted, then a redacted version for public viewing, omitting 11 only the confidential, privileged, or otherwise protectable portions of the document 12 shall be filed. Any application that seeks to file documents under seal in their 13 entirety should include an explanation of why redaction is not feasible. 14 2. DEFINITIONS 15 2.1 Action: this pending forfeiture matter and any appeals filed related to 16 this forfeiture matter. 17 2.2 Challenging Party: a Party or Non-Party that challenges the 18 designation of information or items under this Order. 19 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 20 how it is generated, stored or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 22 the Good Cause Statement. 23 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 24 their support staff). 25 2.5 Designating Party: a Party or Non-Party that designates information or 26 items that it produces in disclosures or in responses to discovery as 27 “CONFIDENTIAL.” 1 of the medium or manner in which it is generated, stored, or maintained (including, 2 among other things, testimony, transcripts, and tangible things) that are produced or 3 generated in disclosures or responses to discovery in this matter. 4 2.7 Expert: a person with specialized knowledge or experience in a matter 5 pertinent to the litigation who has been retained by a Party or its counsel to serve as 6 an expert witness or as a consultant in this Action. 7 2.8 House Counsel: attorneys who are employees of a party to this Action. 8 House Counsel does not include Outside Counsel of Record or any other outside 9 counsel. 10 2.9 Non-Party: any natural person, partnership, corporation, association or 11 other legal entity not named as a Party to this action. 12 2.10 Outside Counsel of Record: attorneys who are not employees of a 13 party to this Action but are retained to represent or advise a party to this Action and 14 have appeared in this Action on behalf of that party or are affiliated with a law firm 15 that has appeared on behalf of that party, and includes support staff. 16 2.11 Party: any party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 20 Discovery Material in this Action. 21 2.13 Professional Vendors: persons or entities that provide litigation 22 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstrations, and organizing, storing, or retrieving data in any form or medium) 24 and their employees and subcontractors. 25 2.14 Protected Material: any Disclosure or Discovery Material that is 26 designated as “CONFIDENTIAL.” 27 2.15 Receiving Party: a Party that receives Disclosure or Discovery 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 4. DURATION 10 Once a case proceeds to trial, information that was designated as 11 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 12 as an exhibit at trial becomes public and will be presumptively available to all 13 members of the public, including the press, unless compelling reasons supported by 14 specific factual findings to proceed otherwise are made to the trial judge in advance 15 of the trial. See Kamakana,

(distinguishing “good cause” 16 showing for sealing documents produced in discovery from “compelling reasons” 17 standard when merits-related documents are part of court record). Accordingly, the 18 terms of this protective order do not extend beyond the commencement of the trial. 19 5. DESIGNATING PROTECTED MATERIAL 20 5.1 Exercise of Restraint and Care in Designating Material for Protection. 21 Each Party or Non-Party that designates information or items for protection under 22 this Order must take care to limit any such designation to specific material that 23 qualifies under the appropriate standards. The Designating Party must designate for 24 protection only those parts of material, documents, items or oral or written 25 communications that qualify so that other portions of the material, documents, items 26 or communications for which protection is not warranted are not swept unjustifiably 27 within the ambit of this Order. 1 Mass, indiscriminate or routinized designations are prohibited. Designations 2 that are shown to be clearly unjustified or that have been made for an improper 3 purpose (e.g., to unnecessarily encumber the case development process or to impose 4 unnecessary expenses and burdens on other parties) may expose the Designating 5 Party to sanctions. 6 If it comes to a Designating Party’s attention that information or items that it 7 designated for protection do not qualify for protection, that Designating Party must 8 promptly notify all other Parties that it is withdrawing the inapplicable designation. 9 5.2 Manner and Timing of Designations. Except as otherwise provided in 10 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 11 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 12 under this Order must be clearly so designated before the material is disclosed or 13 produced. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic 16 documents, but excluding transcripts of depositions or other pretrial or trial 17 proceedings), that the Producing Party affix at a minimum, the legend 18 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 19 contains protected material. The Producing Party may also put that legend on digital 20 medium (such as DVD or hard drive) or simply label a digital folder on the digital 21 medium to cover the content of that digital folder. The Producing Party may also 22 redact any PII contained in the production of Confidential Information. 23 A Party or Non-Party that makes original documents available for inspection 24 need not designate them for protection until after the inspecting Party has indicated 25 which documents it would like copied and produced. During the inspection and 26 before the designation, all of the material made available for inspection shall be 27 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 1 documents, or portions thereof, qualify for protection under this Order. Then, 2 before producing the specified documents, the Producing Party must affix the 3 “CONFIDENTIAL legend” to each page that contains Protected Material. The 4 Producing Party may also put that legend on digital medium (such as DVD or hard 5 drive) or simply label a digital folder on the digital medium to cover the content of 6 that digital folder. The Producing Party may also redact any PII contained in the 7 production of Confidential Information. If only a portion of the material on a page 8 qualifies for protection, the Producing Party also must clearly identify the protected 9 portion(s) (e.g., by making appropriate markings in the margins). 10 (b) for testimony given in depositions that the Designating Party identifies 11 the Disclosure or Discovery Material on the record, before the close of the 12 deposition all protected testimony. 13 (c) for information produced in some form other than documentary and 14 for any other tangible items, that the Producing Party affix in a prominent place on 15 the exterior of the container or containers in which the information is stored the 16 legend “CONFIDENTIAL.” If only a portion or portions of the information 17 warrants protection, the Producing Party, to the extent practicable, shall identify the 18 protected portion(s). 19 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 20 failure to designate qualified information or items does not, standing alone, waive 21 the Designating Party’s right to secure protection under this Order for such material. 22 Upon timely correction of a designation, the Receiving Party must make reasonable 23 efforts to assure that the material is treated in accordance with the provisions of this 24 Order. 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 27 designation of confidentiality at any time that is consistent with the Court’s 1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 2 resolution process under Local Rule 37.1 et seq. 3 6.3 The burden of persuasion in any such challenge proceeding shall be on 4 the Designating Party. Frivolous challenges, and those made for an improper 5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 6 parties) may expose the Challenging Party to sanctions. Unless the Designating 7 Party has waived or withdrawn the confidentiality designation, all parties shall 8 continue to afford the material in question the level of protection to which it is 9 entitled under the Producing Party’s designation until the Court rules on the 10 challenge. 11 7. ACCESS TO AND USE OF PROTECTED MATERIAL 12 7.1 Basic Principles. A Receiving Party may use Protected Material that is 13 disclosed or produced by another Party or by a Non-Party in connection with this 14 Action only for prosecuting, defending or attempting to settle this Action. Such 15 Protected Material may be disclosed only to the categories of persons and under the 16 conditions described in this Order. When the Action has been terminated, a 17 Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a 20 location and in a secure manner that ensures that access is limited to the persons 21 authorized under this Order. 22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 23 otherwise ordered by the court or permitted in writing by the Designating Party, a 24 Receiving Party may disclose any information or item designated 25 “CONFIDENTIAL” only to: 26 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 27 well as employees of said Outside Counsel of Record to whom it is reasonably 1 (b) the officers, directors, and employees (including House Counsel) of 2 the Receiving Party to whom disclosure is reasonably necessary for this Action; 3 (c) Experts (as defined in this Order) of the Receiving Party to whom 4 disclosure is reasonably necessary for this Action and who have signed the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff; 8 (f) professional jury or trial consultants, mock jurors, and Professional 9 Vendors to whom disclosure is reasonably necessary for this Action and who have 10 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (g) the author or recipient of a document containing the information or a 12 custodian or other person who otherwise possessed or knew the information; 13 (h) during their depositions, witnesses, and attorneys for witnesses, in the 14 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 15 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 16 will not be permitted to keep any confidential information unless they sign the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 18 agreed by the Designating Party or ordered by the court. Pages of transcribed 19 deposition testimony or exhibits to depositions that reveal Protected Material may 20 be separately bound by the court reporter and may not be disclosed to anyone except 21 as permitted under this Stipulated Protective Order; and 22 (i) any mediator or settlement officer, and their supporting personnel, 23 mutually agreed upon by any of the parties engaged in settlement discussions. 24 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 25 IN OTHER LITIGATION 26 If a Party is served with a subpoena or a court order issued in other litigation 27 that compels disclosure of any information or items designated in this Action as 1 (a) promptly notify in writing the Designating Party. Such notification 2 shall include a copy of the subpoena or court order; 3 (b) promptly notify in writing the party who caused the subpoena or order 4 to issue in the other litigation that some or all of the material covered by the 5 subpoena or order is subject to this Protective Order. Such notification shall include 6 a copy of this Stipulated Protective Order; and 7 (c) cooperate with respect to all reasonable procedures sought to be 8 pursued by the Designating Party whose Protected Material may be affected. 9 If the Designating Party timely seeks a protective order, the Party served with 10 the subpoena or court order shall not produce any information designated in this 11 action as “CONFIDENTIAL” before a determination by the court from which the 12 subpoena or order issued, unless the Party has obtained the Designating Party’s 13 permission. The Designating Party shall bear the burden and expense of seeking 14 protection in that court of its confidential material and nothing in these provisions 15 should be construed as authorizing or encouraging a Receiving Party in this Action 16 to disobey a lawful directive from another court. 17 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 18 PRODUCED IN THIS LITIGATION 19 (a) The terms of this Order are applicable to information produced by a 20 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 21 produced by Non-Parties in connection with this litigation is protected by the 22 remedies and relief provided by this Order. Nothing in these provisions should be 23 construed as prohibiting a Non-Party from seeking additional protections. 24 (b) In the event that a Party is required, by a valid discovery request, to 25 produce a Non-Party’s confidential information in its possession, and the Party is 26 subject to an agreement with the Non-Party not to produce the Non-Party’s 27 confidential information, then the Party shall: 1 that some or all of the information requested is subject to a confidentiality 2 agreement with a Non-Party; 3 (2) promptly provide the Non-Party with a copy of the Stipulated 4 Protective Order in this Action, the relevant discovery request(s), and a reasonably 5 specific description of the information requested; and 6 (3) make the information requested available for inspection by the 7 Non-Party, if requested. 8 (c) If the Non-Party fails to seek a protective order from this court within 9 14 days of receiving the notice and accompanying information, the Receiving Party 10 may produce the Non-Party’s confidential information responsive to the discovery 11 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 12 not produce any information in its possession or control that is subject to the 13 confidentiality agreement with the Non-Party before a determination by the court. 14 Absent a court order to the contrary, the Non-Party shall bear the burden and 15 expense of seeking protection in this court of its Protected Material. 16 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 17 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 18 Protected Material to any person or in any circumstance not authorized under this 19 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 20 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 21 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 22 persons to whom unauthorized disclosures were made of all the terms of this Order, 23 and (d) request such person or persons to execute the “Acknowledgment and 24 Agreement to Be Bound” that is attached hereto as Exhibit A.

25 /// 26 27 1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2 PROTECTED MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other protection, 5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 7 procedure may be established in an e-discovery order that provides for production 8 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 9 (e), insofar as the parties reach an agreement on the effect of disclosure of a 10 communication or information covered by the attorney-client privilege or work 11 product protection, the parties may incorporate their agreement in the stipulated 12 protective order submitted to the court. 13 12. MISCELLANEOUS 14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 15 person to seek its modification by the Court in the future. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of this 17 Protective Order, no Party waives any right it otherwise would have to object to 18 disclosing or producing any information or item on any ground not addressed in this 19 Stipulated Protective Order. Similarly, no Party waives any right to object on any 20 ground to use in evidence of any of the material covered by this Protective Order. 21 12.3 Filing Protected Material. A Party that seeks to file under seal any 22 Protected Material must comply with Local Civil Rule 79-5. Protected Material 23 may only be filed under seal pursuant to a court order authorizing the sealing of the 24 specific Protected Material at issue. If a Party’s request to file Protected Material 25 under seal is denied by the court, then the Receiving Party may file the information 26 in the public record unless otherwise instructed by the court. 27 /// 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 3 days of a written request by the Designating Party, each Receiving Party must return 4 all Protected Material to the Producing Party or destroy such material. As used in 5 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 6 summaries, and any other format reproducing or capturing any of the Protected 7 Material. Whether the Protected Material is returned or destroyed, the Receiving 8 Party must submit a written certification to the Producing Party (and, if not the same 9 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 10 (by category, where appropriate) all the Protected Material that was returned or 11 destroyed and (2) affirms that the Receiving Party has not retained any copies, 12 abstracts, compilations, summaries or any other format reproducing or capturing any 13 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 14 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 15 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 16 reports, attorney work product, and consultant and expert work product, even if such 17 materials contain Protected Material. Any such archival copies that contain or 18 constitute Protected Material remain subject to this Protective Order as set forth in 19 Section 4 (DURATION).

20 /// 21 /// 22 /// 23

/// 24

25 ///

26 ///

27 /// 1 |} 14. VIOLATION 2 || Any violation of this Order may be punished by appropriate measures including, 3 || without limitation, contempt proceedings and/or monetary sanctions. 4 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 || DATED: May 26, 2021 6 TRACY L. WILKISON 7 || Acting United States Attorney g || BRANDON D. FOX Assistant United States Attorney 9 || Chief, Criminal Division io || STEVEN R. WELK Assistant United States Attorney 11 || Chief, Asset Forfeiture Section 12 /s/ Katharine Schonbachler 13 || KATHARINE SCHONBACHLER 14 || Assistant United States Attorney 15 Attorneys for Plaintiff UNITED STATES OF AMERICA '© || DATED: May 26, 2021 17 || BRYAN CAVE LEIGHTON PAISNER LLP 19 /s/ per email authorization 20 |} H. MARK MERSEL, ESQ. DAVID HARFORD, ESQ. 27 || Attorneys for Claimant MIDCAP FUNDING XVII TRUST 3 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 24 ll DATED: May 28, 2021 25 26 Raydio a. Qe 97 |} HON. ROZELLA A. OLIVER United States Magistrate Judge 28

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 of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of U.S. v. $461,940.00 in U.S. Currency; $88,984.00 in U.S. 8 Currency; and $146,763.17 in Bank Funds; 2:16-CV-07965-DMG (RAOx). I agree 9 to comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Central District of California for enforcing the terms of this Stipulated Protective 17 Order, even if such enforcement proceedings occur after termination of this action. 18 I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27 Signature: __________________________________