David Gingras Attorney declaration iso joint stip

DECLARATION OF DAVID S. GINGRAS

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GINGRAS LAW O

FFICE, PLLC

4072 EAST M

OUNTAIN V

ISTA D

RIVE

PHOENIX, ARIZONA 85048

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 [email protected] 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 [email protected] Paul S. Berra, CSB #186675 Law Offices of Paul S. Berra 1404 3

rd Street Promenade, Suite 205

Santa Monica, CA 90401 Tel: (310) 394-9700 Fax: (310) 394-9755 [email protected] 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 DECLARATION OF DAVID S. GINGRAS

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GINGRAS LAW O

FFICE, PLLC

4072 EAST M

OUNTAIN V

ISTA D

RIVE


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



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GINGRAS LAW O

FFICE, PLLC

4072 EAST M

OUNTAIN V

ISTA D

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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



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GINGRAS LAW O

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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



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GINGRAS LAW O

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4072 EAST M

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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


EXHIBIT A


From: daniel F. Blackert, esq. [mailto:[email protected]]

Sent: Friday, May 07, 2010 10:26 PM To: [email protected]

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


EXHIBIT B


From: David Gingras [mailto:[email protected]]

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:


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:


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/ [email protected]

PO BOX 310, Tempe, AZ 85280 Tel.: (480) 668-3623 Fax: (480) 639-4996


EXHIBIT C


From: Lisa Borodkin [mailto:[email protected]]

Sent: Wednesday, May 19, 2010 7:01 PM

To: [email protected]

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

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05/19/10 11:26:00


EXHIBIT D


From: David Gingras [mailto:[email protected]]

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/

[email protected]

PO BOX 310, Tempe, AZ 85280

Tel.: (480) 668-3623

Fax: (480) 248-3196


EXHIBIT E


JOINT STIPULATION / [PROPOSED] PROTECTIVE ORDER CV10-01360 SVW

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GINGRAS LAW OFFICE, PLLC

4072 E. MOUNTAIN VISTA DRIVE


(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 [email protected] Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA


Plaintiffs,

vs.


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.


2 PROTECTIVE ORDER

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(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


3 PROTECTIVE ORDER

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(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


4 PROTECTIVE ORDER

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(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


5 PROTECTIVE ORDER

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(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.


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(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:


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(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;


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(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


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(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


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(480) 668-3623

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA


Plaintiffs,

vs.


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.


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(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:


Business

David Gingras Attorney declaration iso joint stip