Gary Ivens, DC Bar No. 415004 Federal Trade Commission …to this subpoena without requiring their client’s consent. Although the FTC believes the intent of the SPO is quite clear

Gary Ivens, DC Bar No. 415004

Federal Trade Commission

600 Pennsylvania Ave., NW

Washington, D.C. 20580

(202) 326-2330, fax (202) 326-3395

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA, PHOENIX DIVISION_______________________________________

)

FEDERAL TRADE COMMISSION, )

)

Plaintiff, ) Civ. No. CV 04-0074 PHX SRB

v. )

)

FIRST AMERICAN PAYMENT )

PROCESSING, INC., et al., )

)

Defendants. )

_______________________________________)

PLAINTIFF’S MOTION TO CLARIFY THE

STIPULATED PROTECTIVE ORDER

I. INTRODUCTION

The Federal Trade Commission (“FTC”) hereby requests that the Court clarify that

the stipulated protective order (“SPO”) entered in this case on January 27, 2004, does not

prohibit the FTC from disclosing confidential information under the circumstances

enumerated in subparagraphs 5(b) and 5(c) of the SPO. The issue has urgency because

the United States Attorney’s Office for the Western District of Missouri has issued a

criminal trial subpoena to the FTC for information that is subject to the SPO. Although

the FTC believes the intent of the SPO is to allow the FTC to comply with the subpoena,

the defendants disagree. Therefore, the FTC asks the Court to clarify the SPO by

Case 2:04-cv-00074-SRB Document 44 Filed 09/23/2005 Page 1 of 21

2

adopting a common sense and practical interpretation. A proposed Modified SPO is

submitted herewith.

II. BACKGROUND

The FTC brought this action against the defendants in January 2004 alleging,

among other things, that the defendants assisted and facilitated various telemarketers who

operated in violation of the law. In particular, defendant First American Payment

Processing (“FAPP”) debited consumer bank accounts to process payments to FAPP’s

clients. Before engaging in discovery, the parties stipulated to a blanket protective order,

the SPO, which protects a wide range of information designated as “confidential” by the

parties. On January 27, 2004, the Court issued the protective order. The lawsuit

ultimately settled, and on November 24, 2004, the Court issued a final permanent

injunction.

In March 2005, in connection with its criminal prosecution of numerous

individuals who have been indicted for conspiracy to commit wire and telemarketing

fraud, the United States Attorney’s Office for the Western District of Missouri requested

that the FTC provide information received from defendant FAPP regarding certain

telemarketers who were FAPP’s clients. Counsel for the FTC contacted defense counsel

for FAPP to inform them of the request. The FTC pointed out that paragraph 5(b) of the

SPO permits the FTC to produce information to certain entities, including Congress,

government agencies, and in compliance with a court order. Under the exception

enumerated in subparagraph 5(b), government agencies seeking access to information


3

from the FTC would be required to follow the procedures set forth in the Code of Federal

Regulations at 16 C.F.R. Section 4.11(c). However, the FTC noted that due to an

apparent mistake in the enumeration of the paragraphs, this exception was made part of

the more general Paragraph 5, which purports to limit the sharing of any information to

certain specific individuals named in the SPO’s paragraphs 3 and 4. Neither Congress

nor other law enforcement agencies are mentioned Paragraphs 3 or 4, so Subparagraphs

5(b) and 5(c) only make sense if they are read as stand-alone paragraphs. Because of the

apparent inconsistency, the FTC sought an agreement from FAPP’s counsel confirming

that the SPO does not bar the FTC from providing information to government agencies if

it follows the strictures of Subparagraph 5(b).

Defense counsel for FAPP would not enter into such an agreement. Instead, the

defendants stated that, while they were willing to consent to allow the FTC to produce

certain limited information in response to this government agency request, they would

require the FTC to obtain the specific consent of their clients for the production of any

other information designated as confidential to any government agency, including the

U.S. Attorney’s Office. Specifically, FAPP’s counsel would require the FTC to produce

only information related to named entities that had been payment-processing clients of

FAPP. The FTC would not agree to an interpretation of the SPO that rendered

paragraphs 5(b) and 5(c) meaningless, and also noted that the defendants’ insistence on

obtaining the specific consent of their clients to every piece of information produced

pursuant to paragraphs 5(b) and 5(c) would impose significant and unreasonable burdens


1 The face of the subpoena calls for compliance in September 2005. Counsel for the FTChas been informed, however, that the trial date has been continued until February 2006 and thecompliance date has been similarly continued.

4

on the FTC. This is so because many of FAPP’s clients operated under multiple names

and had various related entities. For example, if a subpoena sought documents about

FAPP client Platinum 2000, a telemarketer of advance-fee credit cards, would the FTC

over-produce (and be subject to a contempt action under the current of the SPO) if it

turned over files for that entity plus those of Platinum Discount, Telehublink Corp., and

Continental Benefits Group – all of which were either related entities or d/b/a names of

Platinum 2000?

In April 2005, the U.S. Attorney’s Office issued a trial subpoena to the FTC

requesting information relating to FAPP’s payment processing activities for various

telemarketing companies identified in its indictment. See Ex. 2.1 When the FTC learned

that the subpoena would be issued, FTC counsel again contacted defense counsel to

attempt to resolve the situation without the need for court intervention. However, the

defendants would not agree that the SPO allows the FTC to produce information pursuant

to this subpoena without requiring their client’s consent.

Although the FTC believes the intent of the SPO is quite clear and wishes to

comply with the subpoena, we believe the prudent course of action is to move the Court

to clarify the SPO so that the information-sharing exceptions enumerated in

subparagraphs 5(b) and 5(c) are read as stand-alone paragraphs not subject to the

introductory language of paragraph 5. This clarification will not only resolve the instant


2 The cited cases discuss the Court’s authority to modify protective orders. Because it hasthe power to modify its own protective orders, it certainly has the authority to clarify or interpretits own protective orders.

5

dispute between the parties, but will resolve how such requests for information that

defendants designated as confidential are to be treated in the future.

III. ARGUMENT

This Court retains jurisdiction over the SPO even after a final judgment has been

entered. United Nuclear Corp. v. Cransford Ins. Co., 905 F.2d 1424, 1427 (10th Cir.

1990) (court retains power to modify protective order even if underlying lawsuit has been

dismissed).2 A protective order should be interpreted in a common sense way, In re

Dual-Deck Vido Cassette Antitrust Litigation, 10 F.3d 693, 695 (9 th Cir. 1993), and it

may be modified “to meet the reasonable needs of other parties in other litigation.”

Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 475 (9th Cir. 1992).

Here, the FTC’s request is far more limited than a modification request – the FTC

simply asks this Court to clarify that the SPO allows the FTC to share information under

the circumstances enumerated in subparagraphs 5(b) and 5(c) because: (1) it is the

common sense interpretation of the SPO; (2) it makes practical sense to avoid duplicating

discovery efforts, particularly where it is necessary for law enforcement purposes; and

(3) the defendants do not have a legitimate expectation that the information would be kept

confidential from Congress, a court, or law enforcement agencies.


6

A. The Common Sense Reading of the SPO is to Allow the FTC to Share

Information Under the Circumstances Enumerated in Subparagraphs

5(b) and 5(c)

“For [a] protective order to comply with common sense, a reasonable reading must

connect its prohibitions to its purpose.” In re Dual-Deck Vido Cassette Antitrust

Litigation, 10 F.3d 693, 695 (9 th Cir. 1993) (reversing order of contempt where there was

a literal breach of a stipulated protective order but the order was so overly broad as to be

absurd). See also FTC v. Productive Marketing, Inc., 136 F. Supp.2d 1096, 1109-10

(N.D. Cal. 2001) (citing In Re Dual Deck, and stating that an overly restrictive reading of

certain terms in the order at issue did not advance the purpose of the order). The

common-sense reading of the SPO is to protect the sensitive personal information of

consumers and the financial information of businesses while allowing the parties to use

this information for limited purposes, such as in the instant litigation and in subsequent

law enforcement proceedings. Furthermore, the language of paragraph 5(b) and 5(c) of

the SPO itself reflects an intent to carve out exceptions to the disclosure prohibitions if

the disclosure is required by Congress or a court, or where disclosure is authorized by

statute for certain specified purposes, such as sharing information with government

agencies acting to enforce the law.

The relevant portions of the SPO are organized as follows. Paragraph 1 identifies

what information is “confidential,” and includes within its blanket protection a broad

range of information, including information that contains personal identifying information

of consumers, financial or account information of consumers or businesses, and trade


3 Paragraph 1 of the SPO (attached as Ex. 1 for the Court’s convenience) states:

1. As used in this Order, “Confidential Information” shall refer to:a. Any document or portion thereof containing: 1) information that identifies

or could be used to identify consumers (e.g., name, social security number,postal address, or email address); 2) a consumer’s, merchant’s, client’sfinancial institution’s or third-party ACH processor’s personal or businessfinancial or account information, including but not limited to creditreports, loan applications, records of accounts with financial institutions,income sources, income tax statements, payment or debt history, or otherinformation that determines credit-worthiness; and 3) the trade secretinformation of any consumer, merchant, client, financial institution, orthird-party ACH processor.

Subparagraphs 1(b) - (d) identify additional information that would be treated as confidential.

7

secrets of any consumer, business, or financial institution; any information in any contract

between the defendants and any third-party; the financial information of any defendant;

and the employee files of FAPP employees.3 See Dual-Deck, 10 F.3d at 695 (noting that

the protective order at issue was written by lawyers and not the judge, to “throw the

biggest possible blanket over every kind of knowledge which might be obtained in the

lawsuit”). Paragraphs 3 and 4 identify the persons to whom confidential information may

be disclosed, and includes among the list: FTC employees, employees of defense

counsel’s law firm, the defendants, defendants’ employees, litigation experts and

consultants, deponents and court reporters, the Court and the Court’s personnel, and

witnesses.

Paragraph 5 performs two functions, and this is where the arguable ambiguity

emerges. First, it sets the parameters for the use of confidential information with the

individuals identified in paragraphs 3 and 4, specifically stating that such information can

be disclosed to further the litigation of this case and “any subsequent enforcement


8

proceeding against any entity.” Second, it enumerates the exceptions for the disclosure of

confidential information. For example, it states that disclosure is allowed pursuant to

applicable statutes and regulations, subpoena from Congress, or orders of court. The

ambiguity in Paragraph 5 results from the application of its introductory language to the

information sharing exceptions described in Subparagraphs b and c.

In its entirety, Paragraph 5 states:

5. Disclosure of Confidential Information to any person described in

Paragraphs 3 and 4 of this Order shall be only for the following purposes:

a. The preparation, litigation, settlement, and appeal of this proceeding

and any subsequent enforcement proceeding against any entity or any

proceeding to effectuate final relief such as consumer redress.

b. Subject to taking appropriate steps to preserve confidentiality, the

FTC may: (1) disclose and use information that is Confidential

under Paragraph 1 of this Order to the extent permitted by the

confidentiality provisions of applicable statutes and Commission

rules; and (2) disclose and use Confidential Information obtained

pursuant to this Order (a) in responding to a formal request or

subpoena from either House of Congress or from any committee or

subcommittee of the Congress, consistent with applicable law,

including Sections 6(f) and 21 of the Federal Trade Commission Act;

(b) pursuant to Section 6(f) of the Federal Trade Commission Act;

(c) in responding to a federal, state, or local government access

request under Commission Rule 4.11(c), 16 C.F.R. § 4.11(c); or

(d) pursuant to court order.

c. Any party possessing Confidential Information may disclose and use

it to the extent required and/or permitted by any court order.

See SPO (Ex. 1).

If read as the defendants suggest, the SPO would be nonsensical. See In Re Dual-

Deck, 10 F.3d at 695 (reversing contempt finding because the order, literally read, was


9

absurd). For example, if interpreted as the defendants suggest, the FTC would be

prohibited from disclosing confidential information in response to a subpoena issued by

Congress because Congress is not among the persons enumerated in paragraphs 3 or 4.

The same analysis would apply to court orders, statutory provisions governing the FTC,

and requests for information from government agencies acting to enforce the law.

Furthermore, the limiting language in subparagraph 5(b) requiring the FTC to take

appropriate steps to preserve the confidentiality of information before producing it to

Congress or others would be rendered entirely meaningless if the disclosure of such

information were limited to the parties to the litigation. Indeed, the defendants’

interpretation of the SPO would render all of subparagraphs 5(b) and 5(c) a complete

nullity. See On Command Video Corp. v. Lodgenet Entertainment Corp., 976 F. Supp.

917, 921 (N.D. Cal. 1997) (refusing to read the parties’ stipulated protective order in a

way that would render meaningless the paragraph enumerating the possible use of

confidential information).

Instead, the Court should clarify the SPO to give the intended meaning to

subparagraphs 5(b) and 5(c), which include specific citations to statutes and

implementing regulations where the FTC acts pursuant to its statutory authority. Indeed,

section 6(f) of the FTC Act specifies with particularity the circumstances under which the

FTC may share confidential information with a law enforcement agency. In particular, it

states that confidential information may be disclosed to other law enforcement agencies

only “upon the prior certification of an officer of any such Federal or State law


4 Section 6(f) of the FTC Act specifically states:

. . . the Commission shall not have any authority to make public any trade secret or anycommercial or financial information which is obtained from any person and which isprivileged or confidential, except that the Commission may disclose such information toofficers and employees of appropriate Federal law enforcement agencies or to any officeror employee of any State law enforcement agency upon the prior certification of anofficer of any such Federal or State law enforcement agency that such information will bemaintained in confidence and will be used only for official law enforcement purposes.

15 U.S.C. § 46(f). The SPO also specifically refers to the regulation applied to this statutoryauthority, 16 C.F.R. § 4.11(c). This regulation reiterates that disclosed information must be heldin confidence and used for official law enforcement purposes, and further, it requires that therequesting law enforcement agency “describe the nature of the law enforcement activity and theanticipated relevance of the information to that activity.” 16 C.F.R. § 4.11(c).

10

enforcement agency that such information will be maintained in confidence and will be

used only for official law enforcement purposes.” 15 U.S.C. § 46(f).4 Therefore,

FAPP’s recent assertion that this interpretation would grant the FTC “unfettered

discretion to disseminate First American’s documents,” see Ex. 3 (email from Andrea

Marconi), is entirely without foundation. Even in the hands of a law enforcement agency,

the information would be kept confidential, pursuant to the requirements of the statute.

Moreover, defendants’ argument is not grounded in common sense, as it would render all

of the specifically enumerated exceptions and limitations in subparagraphs 5(b) and 5(c)

null and void.

Therefore, the common sense interpretation of the SPO is to read subparagraphs

5(b) and 5(c) as not limited by the introductory language of Paragraph 5.

B. The Requested Clarification Would Obviate Further Disputes

Furthermore, the clarification that the FTC seeks would avoid repetitive disputes

that could arise from discovery efforts in future potential cases. Indeed, with respect to


11

protective orders, “Ninth Circuit precedent strongly favors disclosure to meet the needs of

parties in pending litigation.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 475

(9th Cir. 1992) (citing Olympic Refining Co. v. Carter, 332 F.2d 260 (1964) and affirming

modification of a protective order to allow intervenors with their own pending litigation

to have access to discovery). This rationale applies with extra force here because the

entity that issued the subpoena for discovery that gave rise to this dispute is a criminal law

enforcement agency seeking the prosecution of individuals who defrauded scores of

consumers. See In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes, 62

F.3d 1222, 1226 (9th Cir. 1995) (adopting a “per se rule that a grand jury subpeona

should, as a matter of course, prevail over a protective order.”) As noted above, the FTC

is in possession of documents that defendant FAPP produced pursuant to discovery

requests. Specifically, FAPP produced documents that indicate the amounts FAPP caused

to be debited from consumers accounts on behalf of its many clients. Some of those

FAPP clients are now the focus of a criminal action in the Western District of Missouri.

Instead of forcing the United States Attorney’s Office of the Western District of Missouri

to attempt to duplicate the discovery that the FTC already obtained, this court should

clarify that the protective order permits access to discovered information under the

conditions set forth in paragraphs 5(b) and 5(c). Moreover, it is possible that FAPP,

which is no longer controlled by the named defendants, no longer retains the documentary

evidence that it supplied to the FTC.


12

Because FAPP processed payments for many telemarketing entities that operated

under various different names and corporate structures, there is a good possibility that

other law enforcement agencies will seek information from the FTC as has the United

States Attorney for the Western District of Missouri. By intervening in this dispute now

and clarifying the SPO, the Court can forego any future piecemeal approach every time

the FTC is served with a valid subpoena from a law enforcement agency.

C. The Defendants Could Not Reasonably Rely on an Expectation that

Confidential Information Would Be Withheld

The common sense interpretation and the practical result urged by the FTC makes

all the more sense because the defendants did not have a reasonable expectation that the

large pool of information they designated as confidential would be withheld secret. “The

extent to which a party can rely on a protective order should depend on the extent to

which the order induced the party to allow discovery.” Beckman, 966 F.2d at 475.

Where a stipulated blanket protective order has been entered, “reliance will be less”

because such an order “is by nature overinclusive.” Id. at 476 (noting that there was

never a good cause showing for the entry of the protective order because it was

stipulated). As in Beckman, the SPO here designated a wide swath of information as

“confidential.”

The defendants’ reliance on complete confidentiality is even more diminished in

this case because they knew at the time that the FTC initiated its lawsuit that many of

FAPP’s clients had already been sued by law enforcement agencies, and the defendants

agreed to allow confidential information produced in discovery to be used in this case and


13

in “any subsequent enforcement proceeding against any entity.” SPO, ¶ 5(a). Finally and

significantly, the very inclusion of subparagraphs 5(b) and 5(c) in the SPO indicates an

awareness on the part of the defendants that the information they designated as

confidential information could be disclosed outside the context of the FTC litigation to

other branches of the government.

IV. CONCLUSION

In sum, it is untenable to suggest that an error in the enumeration of a

subparagraph in a protective order can bar an agency of the federal government forever

from sharing any information subject to the protective order with any other member of the

government. Therefore, the FTC respectfully requests that the Court clarify the SPO so

that subparagraphs 5(b) and 5(c) are read as stand-alone paragraphs.

Dated: September 23, 2005 Respectfully submitted,

Gary L. Ivens

FEDERAL TRADE COMMISSION

600 Pennsylvania Ave., N.W., Rm. 238

Washington, DC 20580

(202) 326-2330

(202) 326-3395 (facsimile)

Attorney for Plaintiff


CERTIFICATE OF SERVICE

I hereby certify that the foregoing Plaintiff’s Motion to Clarify the Stipulated

Protective Order was served in the manner noted on September 23, 2005, upon counsel

for the defendants as follows:

BY FACSIMILE AND BY FIRST-CLASS MAIL, POSTAGE PREPAID:

Cynthia A. Ricketts

Brian M. McQuaid

Andrea L. Marconi

Squire Sanders & Dempsey L.L.P.

Two Renaissance Square

40 North Central Avenue, Suite 2700

Phoenix, Arizona 85004

Fax: (602) 253-8129

Counsel for Defendants

Gary Ivens


UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA, PHOENIX DIVISION_______________________________________

)

FEDERAL TRADE COMMISSION, )

)

Plaintiff, ) Civ. No. CV 04-0074 PHX SRB

v. )

) MODIFIED PROTECTIVE ORDER

FIRST AMERICAN PAYMENT )

PROCESSING, INC., et al., )

)

Defendants. )

_______________________________________)

To ensure that matters raised by this proceeding are open to the public and to

protect the confidential information of consumers and producing parties, IT IS HEREBY

ORDERED THAT:

1. As used in this Order, “Confidential Information” shall refer to:

a. Any document or portion thereof containing: (1) information that

identifies or could be used to identify consumers (e.g., name, social security number,

postal address, or email address); (2) a consumer’s merchant’s, client’s, financial

institution’s, or third-party ACH processor’s personal or business financial or account

information, including but not limited to, credit reports, loan applications, records of

accounts with financial institutions, income sources, income tax statements, payment or

debt history, or other information that determines credit-worthiness; and (3) the trade

secret information of any consumer, merchant, client, financial institution, or third-party

ACH processor.


2

b. Any information contained in any contract between First American

Payment Processing, Inc. (“FAPP”), CET Corp. (“CET”), Check Processing Center, LLC

(“Check Processing Center”) and any third-party, including but not limited to, financial

information, account information and trade secrets.

c. The financial information of Matthew Robinson or Jennifer

Robinson, Carl Towner or Jennifer Towner, CET, Check Processing Center, or FAPP

produced, if any, as part of this litigation.

d. Employment files for FAPP employees (other than names and

contact infromation of employees).

2. This Protective Order applies to Confidential Information produced during

the course of this litigation by a party to the litigation.

3. Confidential Information shall be disclosed only to:

a. FTC counsel, FTC Commissioners, employees and contractors of the

FTC;

b. Counsel of record for defendants and employees of their law firm(s);

c. Defendants FAPP, CET, Check Processing Center, Matthew

Robinson and Jennifer Robinson and Carl Towner and Jennifer Towner;

d Defendants’ employees, upon obtaining an executed copy of the

acknowledgment of the receipt of a copy of this Order. A form of acknowledgment is

attached hereto as Exhibit A. However, this Order shall not limit or impair defendants’

employees from accessing defendants’ files and records as otherwise permitted in the


3

course and scope of their employment. Confidential Information that defendants’

employees would not otherwise have access to may be disclosed to defendants’

employees only for the purposes of theis or other litigation between the parties and for no

other purpose, and shall not be used in the defendants’ business affairs, be imparted to

any other person, or used by any employee for his own affairs;

e. Consultants and experts retained for the purpose of assisting in the

preparation of this or other litigation between the parties, upon obtaining an executed

copy of the acknowledgment attached hereto as Exhibit A. Confidential Information shall

not be used by the consultants or experts in any business or consulting affairs other than

this litigation;

f. Deponents, their counsel, Court reporters and any persons preparing

transcripts of depositions in connection with depositions taken in this litigation; and

g. The Court and Court personnel.

4. Notwithstanding Paragraph 3, a party may: (1) provide Confidential

Information about a particular witness to that witness, and (2) disclose and use

Confidential Information during any other witness interview, deposition, or preparation

session for any deposition or court appearance in the course of this action. A party may

not provide copies of Confidential Information for a witness to keep, except in

accordance with subsection 1 of this Paragraph. A party may also use Confidential

Information to furmulate and pose discovery requests, including but not limited,

depositions, interrogatories, document requests and requests for admissions.


4

5. Disclosure of Confidential Information to any person described in

Paragraphs 3 and 4 of this Order shall be only for the following purposes: the

preparation, litigation, settlement, and appeal of this proceeding and any subsequent

enforcement proceeding against any entity or any proceeding to effectuate final relief

such as consumer redress.

6. Subject to taking appropriate steps to preserve confidentiality, the FTC

may: (1) disclose and use information that is Confidential under Paragraph 1 of this Order

to the extent permitted by the confidentiality provisions of applicable statutes and

Commission rules; and (2) disclose and use Confidential Information obtained pursuant to

this Order (a) in responding to a formal request or subpoena from either House of

Congress of from any committee or subcommittee of the Congress, consistent with

applicable law, including Sections 6(f) and 21 of the Federal Trade Commission Act;

(b) pursuant to Section 6(f) of the Federal Trade Commission Act; (c) in responding to a

federal, state, or local government access request under Commission Rule 4.11(c), 16

C.F.R. § 4.11(c); or (d) pursuant to court order.

7. Any party possessing Confidential Information may disclose and use it to

the extent required and/or permitted by any court order. If the disclosure would be public,

the party subject to such a court order shall notify the original source of the Confidential

Information promptly, with sufficient time to allow the source to present objections to the

court, and prior to the production of the Confidential Information.


5

8. In the event that any Confidential Information is contained in any pleading,

motion, exhibit or other paper (collectively the “papers”) filed or to be filed with the

Clerk of the Court, the Clerk shall be so informed by the party filing such papers, and

such papers shall be filed under seal and explicitly designate the Confidential

Information. Confidential Information contained in the papers shall remain under seal

until further order of this Court; provided, however, that such papers may be furnished to

persons or entities who may receive Confidential Information pursuant to Paragraph 3.

Upon or after filing any paper containing Confidential Information, the filing party may

file on the public record a duplicate copy of the paper that does not reveal Confidential

Information. At the conclusion of the litigation, the protected nature of all Confidential

Information will be determined pursuant ro the provisions of Rule 26(c).

9. All information subject to Paragraph 1(a) or 1(b) of this Order about a

particular witness will no longer be deemed Confidential Information if the witness

testifies at trial.

10. For information subject to Paragraph 1 of this Order, the producing party,

deponent or any party for the purpose of protecting Confidential Information including,

but not limited to, his or her counsel or the FTC, on the record of the deposition or by

written notice to counsel for all parties no later than thirty (30) days after the deposition

transcript is first made available to the deponent, designate portions thereof as

Confidential Information under the terms of this Order. Until the submission of such

designations, the deposition transcript and the information contained therein will be


6

deemed to be Confidential Information in its entirety. At the end of the thirty-day period,

only those portions of a transcript of a deposition marked Confidential, if any, shall be

deemed Confidential Information.

11. Any party may challenge any Confidential designation by giving written

notice to the designating party (which notice shall specify with particularity the document

or other matter pursuant to which the challenge is made). Within ten (10) days of receipt

of such notice, counsel for the party that designated the materials must determine whether

to withdraw the designation. If the designation is withdrawn, counsel for the designating

party shall give written notice of the change. If counsel for the designating party does not

withdraw the designation, the party making the challenge may file a motion with the

Court with respect thereto. The parties agree that before seeking any relief from the court

they will make a good faith effort to resolve any disputes concerning the appropriate

treatment of materials. Until this Court enters an order changing the designation, all

materials shall be treated in accordance with their initial designation.

12. At the conclusion of all litigation between the parties, all experts,

consultants or other persons retained to assist counsel in the preparation of this action

shall return to counsel all copies of documents or portions thereof containing Confidential

Information that are in the possession of such person, together with all notes, memoranda

or other papers containing Confidential Information.

13. At the conclusion of all litigation between the parties, the parties shall

return or destroy documents obtained in this action to the producing party including all


7

appeals, provided, however, that the FTC’s obligation to return documents shall be

governed by the provisions of Rule 4.12 of the FTC’s Rules of Practice, 16 C.F.R. § 4.12.

14. Nothing in this Order shall be construed to affect or limit in any way the use

or admissibility of any document, testimony, or other evidence at trial or any evidentiary

hearing.

15. Nothing in this Order shall be construed to effect an abrogation, waiver, or

limitation of any kind on the right of the parties or a third party to assert any applicable

discovery or trial privilege.

SO ORDERED this ________day of _________________________, 2005.

__________________________________

Susan R. Bolton, U.S. District Judge


Documents

Gary Ivens, DC Bar No. 415004 Federal Trade Commission …to this subpoena without requiring their client’s consent. Although the FTC believes the intent of the SPO is quite clear