Opinion
John M. McCoy III, Cal. Bar No. 166244, Cal. Bar No. 199414, Attorneys for Plaintiff Securities and Exchange Commission Rosalind R. Tyson, Regional Director
[PROPOSED] ORDER REGARDING MOTION TO QUASH THE SUBPOENA DUCES TECUM TO BANK OF THE WEST
ELIZABETH D. LaPORTE, Magistrate Judge.
On January 12, 2010, the United States District Court for the Northern District of California issued a document subpoena to Bank of the West (the "Subpoena") for records related to a bank account ending in 3342, which is a client trust account used by non-parties Harold P. Gewerter and Harold P. Gewerter, Esq. Ltd. (collectively, "Gewerter"). Gewerter has moved to quash the Subpoena, and the Securities and Exchange Commission (the "Commission") opposes to motion.
Having considered the parties' written and oral arguments, the Court GRANTS IN PART and DENIES IN PART the motion to quash the subpoena. Specifically, all documents produced by Bank of the West in response to the Subpoena (the "Documents") shall be delivered to the Commission subject to following conditions:
1. The Commission shall use the Documents only in connection with its litigation or post-judgment collection efforts in SEC v. CMKM Diamonds, et al. (Case Number 08-cv-437), an action originally filed in the United States District Court for the District of Nevada.
2. The Commission shall not use the Documents in connection with any Commission investigation or enforcement action that is unrelated to SEC v. CMKM Diamonds.
3. Only Commission staff Leslie Hakala, Molly White, and one Commission paralegal assigned to work on matters related to SEC v. CMKM Diamonds shall have access to the Documents. The Commission will take all reasonable efforts to ensure that Commission staff not assigned to matters related to SEC v. CMKM Diamonds do not have access to the Documents.
4. Nothing in this Order shall be construed to apply to any documents or materials possessed or obtained by the Commission by any means other than pursuant to the Subpoena issued to Bank of the West on January 12, 2010, whether or not such documents are also included among the Documents that Bank of the West produces in response to the Subpoena.
5. Nothing in this Order shall be construed to prevent the Commission from complying with any other legal obligation regarding the Documents.
It is SO ORDERED.