Opinion
Civil No. 2:02CV-0039C.
December 8, 2004
Richard D. Clayton, Sarah G. Schwartz, HOLLAND HART LLP, Salt Lake City, Utah, Attorneys for David K. Broadbent, as Receiver for Merrill Scott Associates, Ltd. et al.
Thomas M. Melton, Esq., William B. McKean, Esq., Karen L. Martinez, Securities and Exchange Commission, Salt Lake City, UT, Attorneys for the Securities and Exchange Commission.
Randall Mackey, Esq., Gifford W. Price, Esq., Russell C. Skousen, Esq., Mackey Price Thompson, Salt Lake City, UT, Attorneys for Patrick M. Brody.
Kristopher A. Kuehn, Esq., Warden Triplett Grier, Overland Park, Kansas, Attorneys for Certain Underwriters at Lloyds, London.
Max D. Wheeler, Esq., Robert J. Shelby, Esq., Snow, Christensen Martineau, Salt Lake City, UT, Attorneys for David E. Ross II.
Rodney G. Snow, Esq., Clyde, Snow, Sessions Swenson, Salt Lake City, UT, Attorneys for Michael G. Licopantis.
Steven A. Sinkin, Sinkin Baretto, PLLC, San Antonio, TX, Attorneys for James P. Landis.
Peter W. Billings, Jr., Esq., Fabian Clendenin, Salt Lake City, UT, Haig Kalbian, Kalbian Hagerty, LLP, Washington, DC, Attorneys for Certain Underwriters at Lloyds, London.
Mary C. Gordon, Manning Curtis Bradshaw Bedner, Salt Lake City, UT, Attorneys for Charles Cozean.
PROTECTIVE ORDER
WHEREAS, former clients of Merrill Scott and Associates and its affiliated entities (collectively "MSA") who wish to assert claims against MSA are required to file forms which may contain information of confidential nature, including non-public financial and commercial information;
WHEREAS, Duane Asp, Ralf Leszinski, Alan Cohoon, Douglas MacKinnon, Larry Cotton, Larry Mahisekar, Douglas Drexler, Richard Gerber, Christopher Harrison, Robert Herbolich, Eric Kooba, Hector LeMarque, Stephen Serlin, Jay Sharp, Sr., Lou White, and Michael Williams (collectively, the "Movants") have asserted that disclosure of such confidential information may cause them harm; and
WHEREAS, the Movants have requested this Protective Order to protect the confidentiality of such information.
IT IS HEREBY ORDERED that:
1. "Action" is defined as Securities and Exchange Commission v. Merrill Scott Associates, et al., Civil No. 2:02CV-0039C, in the United States District Court for the District of Utah.
2. "Claims Procedure" is defined as any proceedings related to this Action which are necessary to determine the validity of any claim(s) made against the Receivership estate.
3. This Protective Order governs all Confidential Information which is defined as all documents and materials, including without limitation, all written, recorded, graphic, or electronically-stored matters, including but not limited to partnership, organizational, operational, investor and investment information; correspondence, tax returns, financial reports and statements, or other proprietary information (collectively "Confidential Information"); and all copies, notes, abstracts, excerpts, or summaries of such documents and materials produced by the Movants pursuant to the Claims Procedure.
4. Confidential Information does not include any documents or materials obtained by the Receiver from any source other than the Movants even if such documents or materials were also produced by the Movants.
5. All Confidential Information shall be subject to this Protective Order and shall be used solely for purposes directly related to this Action, Confidential Information shall not be used, directly or indirectly, by parties, counsel, or non-parties receiving it for or in connection with any other purpose of any kind, including but not limited to any commercial use or any other legal proceedings not related to this Action. All persons who gain access to Confidential Information are hereby prohibited and enjoined from disclosing or using it except as specifically provided herein. Counsel and all other persons to whom Confidential Information is disclosed shall take reasonable and appropriate precautions to avoid misuse, loss, and/or unauthorized disclosure of Confidential Information.
6. Confidential Information shall not be disclosed, repeated, given, shown, made available, or communicated in any way to anyone other than the following persons to whom it is necessary that such Confidential Information be given:
(a) this Court and Court personnel in connection with this Action;
(b) qualified court reporters taking testimony in this Action;
(c) the named parties, and party personnel actively involved in or assisting in this Action;
(d) outside counsel of record for any party, their associated attorneys and other employees of their law firms assisting in this Action;
(e) third-party consultants and experts retained by any party or its attorneys of record in this Action who have agreed, in a written and signed certification, to be bound by the terms of this Protective Order; and
(f) the United States Attorney's Office for the District of Utah or any other department or agency of the federal government.
7. Confidential Information may be used during depositions of party or non-party witnesses taken in this Action, subject to the following conditions:
(a) Only persons authorized under paragraph 6, the witnesses and the witnesses' counsel, hereto may be in attendance at the deposition; and
(b) The witness agrees on the record, or in a written and signed certification, to be bound by the terms of this Protective Order.
8. Any summary, log or abstract of any Confidential Information shall be subject to the terms of this Protective Order to the same extent as the Confidential Information summarized or abstracted.
9. In the event that a party receives a duly issued subpoena from a third party which requests some or all of the Confidential Information, the party receiving such a subpoena shall notify counsel for the Movants within ten days of receipt of the subpoena. Counsel for the Movants shall then take the appropriate steps necessary to relieve the party receiving the subpoena from providing any Confidential Information. If counsel for the Movants does not undertake those steps, the recipient of the subpoena shall be entitled to provide any Confidential Information required to be produced by the subpoena.
10. If a party wishes to challenge the designation of any of the Confidential Information under this Protective Order, the party shall first consult with counsel for the Movants. If agreement cannot be reached between counsel, the matter may be submitted to the Court.
11. Nothing herein shall prevent any of the parties from using Confidential Information in connection with any trial or proceeding in this Action or from seeking further protection with respect to the use of any Confidential Information in connection with any trial or proceeding in this Action. Means to preserve the confidentiality of Confidential Information presented at the trial of this matter shall be considered and implemented prior to the beginning of such trial. Confidential Information that is not received into evidence at trial shall retain its "Confidential" status under this Protective Order.
12. Nothing in this Protective Order shall be deemed to restrict the Movants' use or disclosure of their own Confidential Information. Such use or disclosure shall not waive the protections of this Protective Order and shall not entitle any other party, non-party, or their attorneys to use or disclose such Confidential Information, or the contents thereof, in violation of this Protective Order.
13. After the conclusion of this litigation, the provisions of this Protective Order shall continue to be binding, and this Court shall retain jurisdiction over the parties, and any other person who has access to Confidential Information, pursuant to this Protective Order for enforcement of the provisions of this Protective Order.
14. Any party, on reasonable notice to the others, may apply to the Court to seek to modify or to supplement the terms of this Protective Order for good cause.