David Gingras Attorney declaration iso joint stip

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David Gingras Attorney declaration iso joint stip

  1. 1. DECLARATION OF DAVID S. GINGRAS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072EASTMOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 David S. Gingras, CSB #218793 Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 639-4996 Fax: (480) 668-3623 David.Gingras@webmail.azbar.org Maria Crimi Speth, (Admitted Pro Hac Vice) Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Tel: (602) 248-1000 Fax: (602) 248-0522 mcs@jaburgwilk.com Paul S. Berra, CSB #186675 Law Offices of Paul S. Berra 1404 3rd Street Promenade, Suite 205 Santa Monica, CA 90401 Tel: (310) 394-9700 Fax: (310) 394-9755 Paul@Berra.org Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al., Defendants. Case No: 2:10-cv-01360-SVW-PJW DISCOVERY MATTER DECLARATION OF DAVID S. GINGRAS IN SUPPORT OF JOINT RULE 37 STIPULATION Hearing Date: June 24, 2010 Time: 11:00 AM Courtroom: 827A Complaint Filed: Jan. 27, 2010 Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 1 of 27
  2. 2. 2 DECLARATION OF DAVID S. GINGRAS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072EASTMOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 I, David S. Gingras declare as follows: 1. My name is David Gingras. I am a United States citizen, a resident of the State of Arizona, am over the age of 18 years, and if called to testify in court or other proceeding I could and would give the following testimony which is based upon my own personal knowledge unless otherwise stated. 2. I am an attorney licensed to practice law in the States of Arizona and California, I am an active member in good standing with the State Bars of Arizona and California and I am admitted to practice and in good standing with the United States District Court for the District of Arizona and the United States District Court for the Northern, Central, and Eastern Districts of California. 3. Since July 2009, I have been employed as General Counsel for Plaintiff Xcentric Ventures, LLC. In my capacity as counsel for Xcentric Ventures I have been involved in the litigation of this action since its inception. I have possession of Xcentric’s files relating to this case, and I am personally familiar with the contents thereof. 4. Attached hereto as Exhibit A is a true and correct copy of an email I received on May 7, 2010 from Daniel F. Blackert who is co-counsel for the Plaintiffs in this matter. 5. Attached hereto as Exhibit B is a true and correct copy of an email I sent to Mr. Blackert on April 21, 2010. 6. Attached hereto as Exhibit C is a true and correct copy of an email I received on May 19, 2010 from Lisa Borodkin who is co-counsel for the Plaintiffs in this matter. 7. Attached hereto as Exhibit D is a true and correct copy of an email I sent to Ms. Borodkin on May 19, 2010. 8. I understand that Plaintiffs in this matter contend that Defendants have somehow refused to produce Defendant Edward Magedson for deposition. This is false. Mr. Magedson has, in fact, already been deposed in this case. Specifically, on Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 2 of 27
  3. 3. 3 DECLARATION OF DAVID S. GINGRAS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072EASTMOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 Wednesday, June 2, 2010, Mr. Magedson was deposed by Plaintiffs’ counsel in his capacity as the Rule 30(b)(6) designee of Defendant Xcentric Ventures. The deposition began at approximately 10:40 AM and was completed shortly after 6:00 PM. 9. In addition to the 30(b)(6) deposition of Xcentric for which Mr. Magedson was the only witness, I have also met and conferred with Plaintiffs’ counsel about permitting a second deposition of Mr. Magedson in his individual capacity to take place within the next week. Defendants do not now, and have never at any time, objected to the deposition of Mr. Magedson or anyone else. Rather, the only objection Defendants have made relates to the lack of a previously-agreed protective order which would apply only to certain specific areas of testimony and which would be subject to review by the Court in the event the parties could not agree as to the extent that any specific testimony should be deemed confidential. 10. Initially, I discussed the general concept of a protective order with Plaintiffs’ counsel and they agreed to consider such an order if I provided them with a sample form of order, which I promptly did. Attached hereto as Exhibit E is a draft stipulated protective order which I sent to Mr. Blackert and Ms. Borodkin on several occasions including as an attachment to an email I sent to both Mr. Blackert and Ms. Borodkin on April 29, 2010. I also resent a copy of the same draft stipulated protective order as an attachment to another email to both Mr. Blackert and Ms. Borodkin on May 18, 2010. The draft stipulated protective order which I sent to opposing counsel is a form that Xcentric Ventures has used in many other cases in the past. 11. After sending the proposed order to Plaintiffs counsel, I received no response. Later, after resending the order, Plaintiffs’ counsel announced that they would not agree to any protective order because, among other things, they felt that this case involved issues which should be written about publicly. 12. Because Plaintiffs counsel have changed their position and decided that they would not agree to a protective order, I have explained that depending on the specific questions asked of Mr. Magedson (or any other defense witness), I may have Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 3 of 27
  4. 4. 4 DECLARATION OF DAVID S. GINGRAS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072EASTMOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 privacy or other objections which would result in Defendants bringing a motion for a protective order before the witness would be allowed to answer the question. Of course, because I do not know what exact areas of testimony Plaintiffs wish to obtain and I do not know the exact questions they intend to ask, I cannot determine whether or not a protective order is needed until such time as each question is presented. 13. As a matter of course and in other cases, Defendants have anticipated and address these situations by agreeing to a standard stipulated protective order in advance of any deposition so that confidentiality issues can be preserved and then ruled upon by the Court on an ad hoc basis after the deposition has been completed. The only objection Defendants have ever had relating to the deposition of Mr. Magedson is that without an agreed-upon protective order in place before the deposition occurs, the deposition may need to be interrupted to permit Defendants to bring a motion for a protective order in the event that Plaintiffs seek information which is confidential, proprietary, or otherwise of such a nature that it would legitimately require a protective order limiting the scope and/or use of such information. That concern is particularly strong in the present case because Plaintiffs have expressly stated that the intend to use this litigation as a forum to obtain information about Defendants and then release that information publicly. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. EXECUTED ON: June 4, 2010. /S/David S. Gingras David S. Gingras Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 4 of 27
  5. 5. 5 DECLARATION OF DAVID S. GINGRAS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072EASTMOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 CERTIFICATE OF SERVICE I hereby certify that on June 4, 2010 I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mr. Daniel F. Blackert, Esq. Ms. Lisa J. Borodkin, Esq. Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Attorneys for Plaintiffs And a courtesy copy of the foregoing delivered to: Honorable Stephen V. Wilson U.S. District Judge /s/David S. Gingras Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 5 of 27
  6. 6. EXHIBIT A Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 6 of 27
  7. 7. From: daniel F. Blackert, esq. [mailto:blackertesq@yahoo.com] Sent: Friday, May 07, 2010 10:26 PM To: david@ripoffreport.com Subject: Re: AEI et al. v. Xcentric (C.D. Cal. 10-cv-1360) Draft Rule 26f Report David, In light of todays events I believe I have a serious conflict of interest between myself and my client. I will do whatever state bar mandates. I have called today but they do not resume until monday. In light if todays developments which were contradictory to anything I have heard, seen, or discussed w my clients. I will act in accordance w my ethical obligations 100 percent. You have to realize this is a shock to me. Per my own indepedent research I need to withdraw from the case and explain why. In light of todays events I have a serious conflict of interest and will withdraw as counsel. In addition I explained to my clients the implications of todays events and that I can no longer represent them per ethical obligations and will explain to the court why in a dec. My only concern is still seeking correct anaccurae advice from the state bar and acting accordingly. Moreover, I urged my client to dismiss this case. I need to review the ethical rules in more detail and talk w the ethics hotline. As lead counsel, I believe in good faith,sadly, that I can no longer move this case forward and do not intend to do so. I am taking this very seriously and am completely shocked. Daniel Sent from my Verizon Wireless BlackBerry Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 7 of 27
  8. 8. EXHIBIT B Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 8 of 27
  9. 9. From: David Gingras [mailto:david@ripoffreport.com] Sent: Wednesday, April 21, 2010 2:44 PM To: 'Daniel Blackert' Cc: 'Maria Crimi Speth' Subject: RE: Meet and Confer - AEI v. Xcentric Dan, Thanks, but we don’t need to meet and confer re: Rule 26(a) disclosures; these are simply done by both sides as a matter of course without any need to meet and confer. Our initial disclosures are attached and we will supplement them as time goes by. We do, however, need to meet and confer re: a Rule 26(f)(3) discovery plan. Since you represent the plaintiff, it is customary for you to create the first draft of the plan, but since I already had some notes on this, I went ahead and added my comments. Below are the areas that need to be covered (this comes right out of Rule 26(f)(3)). Why don’t you review this stuff and add your clients’ position where appropriate and then we can meet and confer on the phone to discuss anything that needs discussion. April 27 th is actually no good for me unless you want to meet and confer before 11am or after 3pm. Also, my suggestion is that we meet and confer sooner – even later today, tomorrow, or Friday. This process shouldn’t take very long, so there’s no reason to put it off for a week or longer. Also, FYI – as noted in my comments to the plan, I would like to propose that given the expedited schedule, we agree to answer discovery faster than the usual 30 days. For my part, I can probably turn around any number of reasonable roggs or RFPs within about 5 business days or less, though I am okay with agreeing to use 10 calendar days for both sides. Of course, if any requests are particularly lengthy, we could agree to a reasonable extension of time (maybe 5 additional calendar days) when appropriate, but allowing 30 full days for responses to simple requests makes no sense given the short time available. Finally, please let me know what dates your clients are available for deposition. In that regard, I think we need to discuss how much time will be needed for each depo and whether we should agree to bifurcate the depos in the same manner as the trial. FYI – in Arizona, depositions are normally limited by rule to no more than 4 hours. Although we get 7 hours in federal cases, I normally like to go very, very quickly and complete my depos in as little time as possible. In this case, however, I don’t think it makes sense to require me to complete the depo of every possible issue since the trial won’t cover a substantial number of issues. Thus, I suggest that we simply agree that both sides can divide the 7 hour time between two dates if they want to do so. This would help me to conduct a quick depo of your clients as needed for the issues to be tried in August, and then if the case continues beyond then, I would complete their depos on other issues at a later time. Anyway, talk to your clients about these points and let me know what you think. (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; Plaintiffs’ Position: Defendants’ Position: Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 9 of 27
  10. 10. Defendants served their initial disclosures on April 21, 2010. Defendants will supplement as necessary. (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; Plaintiffs’ Position: Defendants’ Position: Based on the court’s order bifurcating this matter, Defendants believe that discovery should be initially focused on the matters set for trial in August. However, unless the court enters an order staying discovery as to any other matters or unless Plaintiffs agree to a stay, Defendants intend to pursue discovery as to each issue in the case. Based on experience and assuming no stay, Defendants intend to pursue discovery as to each of the following areas: • Any facts giving rise to Plaintiffs’ claims; • Any facts relating to Plaintiffs’ damages; • Evidence relating to the truth or substantial truth of the statements at issue; • Evidence relating to Plaintiffs’ credibility. (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; Plaintiffs’ Position: Defendants’ Position: N/A (D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order; Plaintiffs’ Position: Defendants’ Position: In the event Plaintiffs wish to obtain discovery of information that may lead to the identity of the author(s) of the postings at issue in this case, Defendants note this information is subject to First Amendment privilege. See Mobilisa v. Doe, 217 Ariz. 103 (App. 2007); UMG Recordings, Inc. v. Does 1–4, 2006 WL 1343597, *2 (N.D.Cal. 2006). As such, Defendants will not produce any such privileged information absent compliance with the standards set forth in Mobilisa v. Doe and related cases. (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and Plaintiffs’ Position: Defendants’ Position: Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 10 of 27
  11. 11. Defendants request that the parties agree to expedited discovery responses (10 days from date of service with short reasonable extensions if necessary) for all requests under Rules 33, 34 and/or 36. (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). Plaintiffs’ Position: Defendants’ Position: To the extent Plaintiffs intend to seek discovery relating to Defendants’ financial condition, such information is subject to the protections of Cal. Civ. Code § 3295(c); see also Jabro v. Superior Court, 95 Cal.App.4 th 754, 115 Cal.Rptr.2d 843 (4 th DCA 2002) (providing plaintiff who seeks punitive damages is prohibited from seeking discovery of defendant’s financial condition absent showing of substantial probability that plaintiff will prevail on claim); see also Larriva v. Montiel, 143 Ariz. 23 (App. 1984) (setting even higher standard under Arizona law). As such, although a protective order is not strictly required under Rule 26(c) (because § 3295(c) expressly prohibits such discovery without an order granting leave), Defendants may nevertheless move for an order under Rule 26(c) in the event plaintiffs request discovery of financial evidence without leave of court. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://www.ripoffreport.com/ David@RipoffReport.com PO BOX 310, Tempe, AZ 85280 Tel.: (480) 668-3623 Fax: (480) 639-4996 Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 11 of 27
  12. 12. EXHIBIT C Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 12 of 27
  13. 13. From: Lisa Borodkin [mailto:lborodkin@gmail.com] Sent: Wednesday, May 19, 2010 7:01 PM To: david@ripoffreport.com Cc: Daniel Blackert; Maria Crimi Speth Subject: Your call Hi David, I heard from one of our clerks that you called the office looking for Daniel and me today but that you would put whatever you were calling about in an email to us. I haven't gotten any email from you yet. However, if this is about the deposition transcript, I'd ask you to stipulate that the deponent, Raymond Mobrez has 30 days from May 7 to correct the trancript. Daniel very clearly said on the record that we want the transcript. If you want a faster turnaround we can probably stipulate to that also. Lisa No virus found in this incoming message. Checked by AVG - www.avg.com Version: 9.0.819 / Virus Database: 271.1.1/2871 - Release Date: 05/19/10 11:26:00 Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 13 of 27
  14. 14. EXHIBIT D Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 14 of 27
  15. 15. From: David Gingras [mailto:david@ripoffreport.com] Sent: Wednesday, May 19, 2010 10:05 PM To: 'Lisa Borodkin' Cc: 'Daniel Blackert'; 'Maria Crimi Speth' Subject: RE: Your call Lisa, The reason for my call was to ask (again) that you provide us with your position re: the protective order that you have now had for nearly three weeks. When we last spoke, you told Maria and I that you hadn’t actually reviewed the draft order I sent so you indicated that you would do so and get back to us. You never did. Making matters worse, you unilaterally scheduled a deposition of Xcentric to take place next week without consulting with us and without resolving the existing issues that we talked about with respect to the protective order for Mr. Magedson’s deposition. As before, if you will simply agree to a protective order (whether in the form I provided or in any other form that you prefer), then the confidentiality concerns will be resolved. If you won’t agree to the order, that’s fine – we’ll ask the court for one as soon as we can -- but as I told you before, without an order in place I will not allow the witness to answer any questions that pertain to matters which otherwise would have been subject to the protective order. As for your client’s deposition, I will not agree to give him additional time to review or change the transcript. Once again, despite your assertion that somehow Dan preserved the right for Mr. Mobrez to review the depo, that position is totally groundless. On page 299, line 24 of the transcript, the court reporter asked Dan if he wanted review the transcript and on page 300, line 1, Dan responded, “No, that’s okay.” Obviously, Mr. Mobrez’s deposition testimony is essential to the Motion for Summary Judgment which I am finally done drafting and which I intend to file on Monday. Agreeing to delay the finalization of the transcript for 30 days or any other amount of time would severely prejudice our right to have that motion heard and ruled upon as soon as possible, so while I am normally happy to agree to any reasonable accommodation, that’s not one I can accept. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://www.ripoffreport.com/ David@RipoffReport.com PO BOX 310, Tempe, AZ 85280 Tel.: (480) 668-3623 Fax: (480) 248-3196 Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 15 of 27
  16. 16. EXHIBIT E Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 16 of 27
  17. 17. JOINT STIPULATION / [PROPOSED] PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 David S. Gingras, CSB #218793 Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 639-4996 Fax: (480) 668-3623 David.Gingras@webmail.azbar.org Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al., Defendants. Case No: 2:10-cv-01360-SVW-PJW JOINT STIPULATION FOR ENTRY OF PROTECTIVE ORDER AND [PROPOSED] PROTECTIVE ORDER In preparation for anticipated discovery to be conducted by the Parties, Plaintiffs ASIA ECONOMIC INSTITUTE, LLC, RAYMOND MOBREZ and ILIANA LLANERAS and Defendants XCENTRIC VENTURES, LLC and EDWARD MAGEDSON (the “Parties”), hereby stipulate and agree that good cause exists for the entry of a Protective Order in this matter pursuant to Rule 26(c). Without waiving any objection they may have to the application of this Order to specific materials or otherwise, the Parties agree that discovery in this case may call for the production of documents that one of the Parties considers to be confidential, proprietary, and/or trade secret, or otherwise appropriately requiring a Protective Order under Rule 26(c). In order to protect such confidential, proprietary, and/or trade secret information, the undersigned Parties request that good cause exists for the Court to enter this stipulated Protective Order in the following form. Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 17 of 27
  18. 18. 2 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 Therefore, upon stipulation of all parties for a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is hereby ORDERED that: 1. This Protective Order is applicable to the Parties and their respective representatives, experts and employees, as well as third parties, for the sole purpose of facilitating discovery in the above styled and numbered cause. It is expressly ordered that this Protective Order will not, in any manner, be disclosed to the jury, if any, in the above-styled and numbered cause. It is further ordered that this Protective Order will not be used, in any manner or form, direct or indirect, as evidence in any trial or any hearing, or referred to in any trial or any hearing on the merits of this case, save and except a hearing which involves issues related to the enforcement of any provision of this Protective Order. It is further ordered that this provision is absolutely and completely essential to this Protective Order and that this paragraph is not severable from any remaining paragraph or provision of this Protective Order. 2. Any party may designate any document, data, or thing produced, deposition testimony, or interrogatory answer or answer to request for admission produced, given, or served pursuant to discovery requests in this litigation which contains sensitive personal information or trade secrets as “Confidential”. 3. Any party may designate a document, data, or thing produced, deposition testimony, written admission or denial or interrogatory answer as “Confidential-Attorney Eyes Only” if it contains non-public confidential or sensitive proprietary business-related data or strategies or information or matters that, if publicized, would subject the party to public scorn, ridicule, or materially injure the party’s business or financial prospects. 4. Except as otherwise provided below, any document, data, or thing produced, deposition testimony, or interrogatory answer or answer to request for admission produced, given, or served pursuant to discovery requests in this litigation and designated by the producing party as “Confidential” or “Confidential – Attorneys Eyes Only” (generally ”Confidential Material”), or any information contained in or derived from any of the foregoing Material, shall be subject to the provisions of this Protective Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 18 of 27
  19. 19. 3 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 Order until further order of the Court. Nothing in this Protective Order shall permit a receiving party to designate Confidential Material produced by another party or a third party as “Confidential” or “Confidential – Attorneys Eyes Only” if the Material does not contain information belonging to, or did not originate from, such receiving party. 5. Confidential Material shall be designated as “Confidential” or “Confidential- Attorney Eyes Only” by stamping the appropriate legend “Confidential” or “Confidential-Attorney Eyes Only” on each page thereof as to which confidentiality is claimed. 6. All deposition testimony shall automatically be designated “Confidential— Attorneys Eyes Only” for a period of 20 business days after the date of receipt of the final transcript, during which time either party may designate portions of the transcript as “Confidential” or “Confidential—Attorneys Eyes Only” by notifying the other parties in writing of the deposition transcript page(s) and line(s) so designated; and after which date any non-designated portions shall automatically be designated non-confidential material. The forgoing does not apply to testimony or questions referencing or discussing any deposition exhibits designated prior to the deposition date as “Confidential” or “Confidential—Attorneys Eyes Only,” such questions and testimony shall automatically carry the same designation as the document(s) so discussed at deposition. 7. A party or its attorney may orally designate testimony as “Confidential” or “Confidential—Attorneys Eyes Only” during the course of the deposition. Any portion of a deposition so designated shall not be filed with the Court, except in accordance with this Agreed Protective Order. Any designation pursuant to this paragraph shall apply to any video or audio recording of the deposition as well. 8. Electronically stored Confidential Material or information produced in this matter shall be electronically tagged or branded with the appropriate legend “Confidential” or “Confidential—Attorneys Eyes Only” on each page. With respect to any Confidential Material not produced in paper form (such as diskettes, magnetic media, and other Material not produced in paper form) and that is not susceptible to the Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 19 of 27
  20. 20. 4 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 imprinting of a stamp signifying its confidential nature, the producing party shall, to the extent practicable, produce such Material with a cover labeled “Confidential” or “Confidential—Attorneys Eyes Only” as appropriate, and shall inform all counsel in writing of the designation of such Confidential Material at the time it is produced. If any outside counsel shall print or otherwise create paper copies of material that was not originally produced in a paper form and that is designated as “Confidential,” such outside counsel shall immediately mark such documents with the appropriate “Confidential” stamp prior to distributing such Material. 9. No “Confidential” Material subject to this Protective Order or extracts or summaries therefrom shall be given or shown to any person except the following: a. Inside and outside attorneys for any party engaged in the litigation of this action and the employees or agents of such attorneys. b. Parties or employees of a party who are actively engaged in assisting that party’s attorneys in the conduct of this litigation to the extent reasonably necessary to enable the attorneys for that party to render professional services in the litigation. c. Persons not employees of any party who are expressly retained to assist such party’s counsel (“retaining counsel”) in the preparation of this action for trial including, consulting and testifying experts, and the employees of such persons (“Outside Experts”), after such Outside Expert has signed and delivered to retaining counsel a statement in the form annexed hereto as Exhibit A. For purposes of this subparagraph, Outside Experts includes jury consulting experts and mock jurors, provided that each individual has signed and delivered to retaining counsel a statement in the form annexed hereto as Exhibit A. Retaining counsel shall maintain the original of the executed Exhibit A and shall produce the executed Exhibit A at the Court’s order. Under no circumstances shall any individual referenced in Paragraph 4(c) be Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 20 of 27
  21. 21. 5 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 allowed to review any Confidential Material unless they have executed a copy of Exhibit A attached hereto. d. The Court, other court officials (including court reporters) and the trier of fact. No person allowed to view Confidential Material shall use it for any purpose except as needed solely in connection with or to assist in the prosecution or defense of claims or possible claims in this action. 10. No “Confidential – Attorney’s Eyes Only” Material subject to this Protective Order or extracts or summaries therefrom, including but not limited to oral recitations or descriptions of the content or import of “Confidential—Attorneys Eyes Only” material shall be communicated, given or shown to any person except the following: a. Outside attorneys for any party engaged in the litigation of this action and the employees of such attorneys directly involved in this matter. b. Persons not employees of any party who are expressly retained to assist such party’s counsel (“retaining counsel”) in the preparation of this action for trial including, consulting and testifying experts, and the employees of such persons (“Outside Experts”), after such Outside Expert has signed and delivered to retaining counsel a statement in the form annexed hereto as Exhibit A. For purposes of this subparagraph, Outside Experts includes jury consulting experts and mock jurors, provided that each has signed and delivered to retaining counsel a statement in the form annexed hereto as Exhibit A. Retaining counsel shall maintain the original of the executed Exhibit A and shall produce the executed Exhibit A at the Court’s order. Under no circumstances shall any individual referenced herein be allowed to review any “Confidential” Material unless they have executed a copy of Exhibit A attached hereto. Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 21 of 27
  22. 22. 6 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 c. The Court, other court officials (including court reporters) and the trier of fact. No person allowed to view “Confidential – Attorneys Eyes Only” Material shall use any “Confidential – Attorneys Eyes Only” Material for any purpose except as needed solely in connection with or to assist in the prosecution or defense of claims or possible claims in this action. 11. If either party has a need use, to show or communicate any testimony, document or thing or information to a person not authorized to see it given the designation given it by the designating party, the receiving party may seek permission to reveal said document, thing, or information to said person by notifying in writing the designating party of the need and the basis for the need. The designating party shall have 10 business days in which to accede to any such request or deny it. If denied, the receiving party may thereafter file an appropriate motion with the Court to request that continued protection of the documents or information hereunder be modified or eliminated as the Court shall direct, and the producing party shall bear the burden of justifying any such continued protection under applicable law. The protection afforded by the producing party’s designation under this Protective Order shall continue until the Court modifies or eliminates the protections afforded the documents by the designation. The parties agree that accession to such a request and/or a successful motion to reveal designated material to a previously-unauthorized person shall not waive the designation of said material generally nor authorizes the receiving party to use, show or communicate such information to other unauthorized persons. The Parties further agree that this paragraph provides the sole means for any party to show, reveal, discuss or otherwise communicate Confidential Material to any person not authorized by the designation given by the designating party. 12. Notwithstanding the foregoing, “Confidential” Material, but not “Confidential – Attorneys Eyes Only” Material, may be shown to the following persons: Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 22 of 27
  23. 23. 7 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 a. Persons who are shown on the face of the document to have been the author or recipient of the Confidential Material. b. Witnesses at depositions and at the trial shall be subject to the rules under paragraph 11, above. 13. Non-deponents may attend depositions pursuant to the agreement of the parties. However, unless such non-deponent is entitled to review Confidential Material in accordance with this Protective Order, the non-deponent must leave the room before any discussion of any material that the non-deponent is not entitled to review. For clarity’s sake, this paragraph’s provisions do not apply to court reporters or videographers. 14. Except for use in trial which shall be separately addressed by the Court, in the event that any “Confidential” or “Confidential – Attorney’s Eyes Only” Material that is subject to the provisions of the Protective Order is used in motions, briefs, or other documents filed with the Court, or if the documents filed with the Court reveal the contents of (in whole or in part) the “Confidential” or “Confidential – Attorney’s Eyes Only” Material, the following procedure must be followed: Any document submitted for filing under seal, except a response or reply to a sealed motion, must be accompanied by a motion and proposed order authorizing such filing. The Motion to Seal will be filed as a public document using the appropriate event located under the electronic filing “Motions and Related Filings” category. The proposed document to be filed under seal will be lodged electronically using the “Sealed Lodged Proposed Document” event. If a Motion to Seal is granted, the Court will issue an order authorizing the electronic filing by the Clerk’s Office of the lodged proposed document under seal. 15. This Protective Order shall not be deemed a waiver of: a. Any party’s right to object to any discovery requests on any ground; b. Any party’s right to seek an order compelling discovery with respect to any discovery request; Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 23 of 27
  24. 24. 8 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 c. Any party’s right in any proceeding herein to object to the admission of any evidence on any ground; d. Any party’s right to use its own documents and its own “Confidential” Material in its sole and complete discretion; or e. Any party’s right to seek a further protective order from the Court relating to any purportedly confidential information. 16. In the event any person or party having control of any “Confidential” or “Confidential - Attorney’s Eyes Only” Material covered by this Protective Order receives a subpoena or other process or order to produce such information, the person or party shall immediately notify in writing all counsel of record, and furnish those attorneys with a copy of said subpoena, process, or order. The party receiving such subpoena or other process or order to produce such information shall not produce such Material until after the producing party has had an opportunity to object to or otherwise move for protection against such disclosure, or makes the party receiving the subpoena aware, in writing, that it will not object or otherwise move for protection against such disclosure. 17. The provisions of this Protective Order shall continue in effect with respect to any “Confidential” or “Confidential - Attorney’s Eyes Only” Material until expressly released by the party furnishing such Material, and such effectiveness shall survive the final determination of this action. Any party may move the Court to amend any portion of this Confidentiality Order, including amendment to permit actual trial witnesses access to trial exhibits and transcripts of testimony that are reasonably necessary to assist such witnesses in preparation for that testimony. 18. Unless otherwise agreed by the party producing such Material, within sixty (60) days of the final determination of this action, each party shall return all “Confidential” or “Confidential - Attorney’s Eyes Only” Material in its possession or control, and all copies, derivations and summaries thereof, to the party who furnished it, or certify that all such documents have been destroyed, provided however, that counsel of record may retain “Confidential” or “Confidential - Attorney’s Eyes Only” Materials to Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 24 of 27
  25. 25. 9 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 the extent that such Materials are part of or attached as exhibits to court filings or other legally operative documents in this matter. For purposes of this Protective Order, the “final determination of this action” shall be deemed to be the later of (i) full settlement of all claims, final judgment herein or the completion and exhaustion of all appeals, rehearings, remands, trials and reviews, if any, of this action, or (ii) the expiration of all time limits under applicable law for the filing of or appeals, rehearings, remands, trials or reviews of this action, including the time limits for the filing of any motions or applications for extension of time pursuant to applicable law. 19. Counsel for the parties to whom “Confidential” or “Confidential - Attorney’s Eyes Only” Material has been furnished shall be responsible for restricting disclosure in accordance with the provisions of this Protective Order and for securing execution of and retaining the statement attached hereto as Exhibit A as and when required under the provisions of this Protective Order. 20. Pursuant to Fed. R. Evid. 502, the inadvertent disclosure of any privileged documents shall not be deemed a waiver of that privilege, and any inadvertent disclosure of any privileged documents shall be governed by the Inadvertent Disclosure Agreement, entered into between the parties and attached hereto as Exhibit B. Pursuant to Rule 502(e), the Inadvertent Disclosure Agreement shall be binding on all individuals subject to this Protective Order. SO ORDERED. SIGNED AND ENTERED this day of __________________, 2010. HON. STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 25 of 27
  26. 26. 10 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al., Defendants. Case No: 2:10-cv-01360-SVW-PJW ACKNOWLEDGMENT OF PROTECTIVE ORDER I have read, am familiar with and agree to be bound by the terms of the Protective Order in the litigation styled Asia Economic Institute, LLC v. Xcentric Ventures, LLC, in the United States District Court for the Central District of California. I will only make such copies of or notes concerning documents designated “Confidential” as are necessary to enable me to render the assistance required in connection with this litigation, and all such notes and copies shall be preserved in a separate file maintained as confidential and marked for disposal or destruction upon completion of this litigation. I will not reveal the contents of “Confidential” Material to any unauthorized person. I will not use “Confidential” Material for any purpose other than the prosecution or defense of claims or possible claims in this action. Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 26 of 27
  27. 27. 11 PROTECTIVE ORDER CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 4072E.MOUNTAINVISTADRIVE PHOENIX,ARIZONA85048 (480)668-3623 I also agree that all documents furnished to me that contain information designated as “Confidential” and all documents, including notes, memoranda and other working papers that I prepare which contain such information will be returned within thirty days of the termination of the above action to the party or parties from whom I have received such documents or information. I further agree voluntarily to submit myself to the jurisdiction of the United States District Court for the Central District of California, for the resolution of any dispute that might arise in connection with my compliance with the terms of the Protective Order and this Acknowledgment of Protective Order. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: Printed Name: Case 2:10-cv-01360-SVW-PJW Document 54 Filed 06/04/10 Page 27 of 27

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