Securities and Exchange Commission v. Reifler et al, No. 2:2020cv00511 - Document 38 (D. Nev. 2020)
Court Description: ORDER Granting 35 Stipulated Protective Order. Signed by Magistrate Judge Daniel J. Albregts on 9/18/2020. (Copies have been distributed pursuant to the NEF - JQC)
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Securities and Exchange Commission v. Reifler et al Doc. 38 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 1 of 16 1 2 3 4 5 6 CHRISTOPHER E. MARTIN (AZ. Bar No. 018486) admitted pro hac vice Email: martinc@sec.gov POLLY A. ATKINSON (CO. Bar No. 18703) admitted pro hac vice Email: atkinsonpolly@sec.gov Attorneys for Plaintiff Securities and Exchange Commission 1961 Stout Street, Suite 1700 Denver, Colorado 80294 Telephone: (303) 844-1106 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 SECURITIES AND EXCHANGE COMMISSION, 12 Plaintiff, 13 14 vs. BRADLEY C. REIFLER, 15 18 19 20 21 STIPULATED PROTECTIVE ORDER Defendant, 16 17 Case No. 20-cv-00511 -RFB-DJA Judge Richard F. Boulware, II Magistrate Judge Daniel J. Albregts and FOREFRONT PARTNERS, LLC FOREFRONT CAPITAL SERVICES, LLC, and PORT ROYAL-NCM, LLC, Relief Defendants. 22 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the parties, 23 Plaintiff Securities and Exchange Commission (“SEC”) and Defendant Bradley C. 24 Reifler and Relief Defendants Forefront Partners, LLC, Forefront Capital Services, 25 LLC, and Port Royal-NCM, LLC (collectively, “Defendants”), have agreed to the 26 terms of this Stipulated Protective Order (“Protective Order”); accordingly, it is 27 STIPULATED: 28 Dockets.Justia.com Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 2 of 16 1 1. Scope. All documents, materials, and information (herein collectively 2 defined as “documents”) disclosed pursuant to the disclosure or discovery duties 3 created by the Federal Rules of Civil Procedure, including without limitation 4 documents produced, answers to interrogatories, responses to requests for admission, 5 deposition testimony, and other information, as well as the documents discussed in 6 Paragraph 3(b) below, shall be subject to this Order concerning Confidential 7 Information as defined below. This Order is subject to the Local Rules of this District 8 and the Federal Rules of Civil Procedure. 9 2. Confidential Information. As used in this Order, “Confidential 10 Information” means documents that are designated as Confidential Information (as 11 provided in Paragraph 3 of this Order) and falls within one or more of the following 12 categories: (a) information prohibited from disclosure by statute; (b) trade secrets or 13 other proprietary information; (c) research, technical, commercial or financial 14 information that the party has maintained as confidential; (d) medical information 15 concerning any individual; (e) personal identity information; (f) income tax returns 16 (including attached schedules and forms), W-2 forms and 1099 forms; or (g) personnel 17 or employment records. 18 Confidential Information. 19 20 3. Documents that are available to the public are not Designation. (a) A party may designate a document it is producing pursuant to the 21 disclosure or discovery duties created by the Federal Rules of Civil Procedure as 22 Confidential Information if it has determined in good faith that the document 23 constitutes Confidential Information as defined in Paragraph 2 of this Order. Whenever 24 possible and appropriate, the party designating documents as Confidential Information 25 must designate only those portions of a document, deposition, transcript, or other 26 material that contain the Confidential Information and refrain from designating the 27 entire document. To designate a document (or a portion of a document) as Confidential 28 Information, a party must a) place or affix the words “CONFIDENTIAL – SUBJECT 2 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 3 of 16 1 TO PROTECTIVE ORDER” on the document and on all copies in a manner that will 2 not interfere with the legibility of the document (or, for documents such as 3 spreadsheets that cannot easily be stamped with this label, by providing a slip sheet 4 with this designation) and b) provide to the party receiving the designated documents 5 an index of the designated documents. As used in this Order, “copies” includes 6 electronic images, duplicates, extracts, summaries, or descriptions that contain the 7 Confidential Information. 8 PROTECTIVE ORDER” shall be applied and the index provided prior to or at the 9 time that the documents are produced or disclosed, with the exception of those 10 documents described in Paragraph 3(b). Applying the marking “CONFIDENTIAL – 11 SUBJECT TO PROTECTIVE ORDER” to a document does not mean that the 12 document has any status or protection by statute or otherwise except to the extent and 13 for the purposes of this Order. Any copies that are made of any documents marked 14 “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” shall also be so 15 marked, except that documents that are attorney work product or protected by the 16 attorney-client communication privilege, indices, electronic databases or lists of 17 documents that do not contain substantial portions or images of the text of marked 18 documents and do not otherwise disclose the substance of the Confidential Information 19 are not required to be marked. 20 (b) The markings “CONFIDENTIAL – SUBJECT TO Documents produced by a party in the course of the SEC’s 21 investigation captioned In the Matter of Forefront Capital Management (D-3562) 22 (hereinafter, the “SEC Investigation”) and for which confidential treatment was 23 requested at the time of production, shall also be deemed to be Confidential Information 24 under this order. Within twenty-one (21) days after entry of this Order, any party 25 requesting confidential treatment of documents provided during the SEC’s 26 investigation shall provide a written index of the documents it is continuing to 27 designate as Confidential Information by Bates number, production date, or other 28 description (“Index of Confidential Investigative Documents”). Any investigative 3 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 4 of 16 1 documents that were provided during the SEC’s investigation that are not listed on the 2 Index of Confidential Investigative Documents, shall not be considered as containing 3 Confidential Information as that term is defined in Paragraph 2 of this Order. Within 4 twenty-one (21) days after production in this litigation or entry of this Order, whichever 5 is later, and consistent with Paragraph 3(a), any party may retroactively designate as 6 Confidential Information any other documents, data, information, or letters it 7 previously produced or provided or transcripts of testimony a party or any of its past 8 or present employees provided during the course of the SEC Investigation that the other 9 party reproduced during this litigation. Such retroactive designation shall be 10 accomplished by the designating party providing counsel for the non-designating party 11 a written index of the documents it is designating as Confidential Information by Bates 12 number (“Index of Retroactively Designated Confidential Investigative Documents”). 13 Upon receipt of the Index of Confidential Investigative Documents or Index of 14 Retroactively Designated Confidential Investigative Documents, the parties: (i) shall 15 not make any further disclosure or communication of such retroactively designated 16 documents except as provided for in this Order; (ii) shall take reasonable steps to notify 17 all persons known to have possession of any retroactively designated documents of the 18 effect of such designation under this Order; and (iii) shall take reasonable steps to 19 procure all copies of such designated documents from any persons known to have 20 possession of any such designated documents who are not entitled to receipt of same 21 under this Order. 22 (c) Third Party Discovery. Any third party producing documents 23 pursuant to a subpoena issued in this matter may avail itself of the protections provided 24 in this Order by following the procedures in the Order for designating the documents 25 it produces as Confidential Information. 26 (d) Inadvertent Disclosure of Privileged Documents. A party that 27 produces documents that is designated as Confidential Information pursuant to this 28 Order can request in writing that the receiving party return any such document that was 4 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 5 of 16 1 inadvertently produced that is privileged under the attorney-client privilege, work 2 product doctrine, or any other recognized privilege, in accordance with the provisions 3 of Federal Rule of Civil Procedure 26(b)(5)(B). 4 4. Depositions of Parties and Employees of Parties. Unless all parties 5 agree on the record at the time the deposition testimony is taken, all deposition 6 testimony taken of any party to this case or any party’s past and former employees 7 shall be treated as Confidential Information for thirty (30) days after the transcript is 8 delivered to any party or the witness. If the deposition is of a party or a current or 9 former employee of any party, that party may serve a Notice of Designation to all 10 parties of record as to specific portions of the testimony that are designated 11 Confidential Information, and thereafter only those portions identified in the Notice of 12 Designation shall be protected by the terms of this Order. The failure to serve a timely 13 Notice of Designation shall waive any designation of testimony taken in that deposition 14 as Confidential Information, unless otherwise ordered by the Court. 15 16 5. Protection of Confidential Documents. (a) General Protections. Confidential Information shall not be used 17 or disclosed by the parties, counsel for the parties, or any other persons identified in 18 subparagraph (b) for any purpose other than this litigation, including any appeal 19 thereof, except that nothing in this Order shall prevent Plaintiff from using Confidential 20 Information, or any other information, received prior to or during this litigation in a 21 manner consistent with its obligations under law concerning disclosure of documents, 22 including but not limited to its obligations under the Freedom of Information Act. In 23 addition, nothing in this Protective Order shall: a) interfere with the Commission’s use 24 of information for law enforcement activities or to regulate and administer the federal 25 securities law; or b) apply to or in any manner condition, limit, or infringe the 26 Commission’s congressionally-mandated and authorized obligation to cooperate with 27 other federal, state, local, or foreign law enforcement or regulatory agencies, including 28 without limitation sharing Confidential Information with other federal, state, local, or 5 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 6 of 16 1 foreign law enforcement and/or regulatory agencies. Plaintiff agrees that if counsel of 2 record receives notice of a FOIA request for any Confidential Information designated 3 by Defendants, they will notify Defendants in sufficient time in advance of any 4 disclosure, so that either or both Defendants may timely object to any such disclosure. 5 (b) Limited Third-Party Disclosures. The parties and counsel for 6 the parties shall not disclose or permit the disclosure of any Confidential Information 7 to any third person or entity except as set forth in subparagraphs (1)-(9). Any person 8 to whom Confidential Information is disclosed pursuant to these subparagraphs shall 9 be advised that the Confidential Information is being disclosed pursuant to an order of 10 the Court, that the information may not be disclosed by such person to any person not 11 permitted to have access to the Confidential Information pursuant to this Protective 12 Order, and that any violation of this Protective Order may result in the imposition of 13 such sanctions as the Court deems proper. Any person to whom Confidential 14 Information is disclosed pursuant to subparagraphs (5)-(8) shall be required to execute 15 a copy of the form Attachment A (Acknowledgment of Understanding and Agreement 16 to Be Bound) in advance of being shown the Confidential Information, an executed 17 copy of which shall be maintained and made available to other parties upon good cause 18 shown and upon order of the Court. Subject to these requirements, the following 19 categories of persons may be allowed to review Confidential Information: 20 (1) Counsel. Counsel for the parties, employees of counsel 21 who have responsibility for the action, and persons 22 regularly employed or associated with the attorneys 23 actively working on the case whose assistance is required 24 by said attorneys in connection with this case; 25 (2) Parties. Parties and parties’ employees, independent 26 contractors, 27 Commissioners; 28 (3) officers, and directors, including The Court and its employees and personnel; 6 SEC Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 7 of 16 1 2 (4) Court Reporters and Recorders. Court reporters and 3 recorders, 4 depositions or trial; 5 (5) including videographers, engaged for Contractors. Those persons specifically engaged for the 6 limited purpose of making copies of documents or 7 organizing or processing documents, including outside 8 vendors hired to process electronically stored documents, 9 and persons or entities hired to provide litigation support services in connection with this action; 10 11 (6) Consultants and Experts. Consultants, investigators, or 12 experts who have been retained by the parties or counsel for 13 the parties to assist in the preparation and trial of this action 14 (including providing expert opinions and/or testimony); 15 (7) Deponents, witnesses, or potential witnesses; 16 (8) Author or Recipient. The author or recipient of the 17 document (not including a person who received the 18 document in the course of litigation); and 19 (9) Others by Consent. Other persons only by written consent 20 of the producing party or upon order of the Court and on 21 such conditions as may be agreed or ordered. 22 (c) Control of Documents. Counsel for the parties shall make 23 reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential 24 Information. Counsel shall maintain the originals of the forms signed by persons 25 acknowledging their obligations under this Order for a period of three years after the 26 termination of the case. 27 (d) Unauthorized Disclosure of Confidential Information. If a 28 7 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 8 of 16 1 receiving party learns that, by inadvertence or otherwise, it has disclosed Confidential 2 Information to any person or in any circumstance not authorized under this Order, the 3 receiving party must immediately: (a) notify in writing the producing party of the 4 unauthorized disclosures; (b) use its best efforts to retrieve all copies of the 5 Confidential Information; (c) inform the person or persons to whom unauthorized 6 disclosures were made of all the terms of this Order; and (d) request that such person 7 or persons execute the “Acknowledgment of Understanding and Agreement to Be 8 Bound” that is attached hereto as Attachment A. 9 6. Inadvertent Failure to Designate. An inadvertent failure to designate 10 a document as Confidential Information, or include it on the Index of Confidential 11 Investigative Documents or the Index of Retroactively Designated Confidential 12 Investigative Documents does not, standing alone, waive the right to so designate the 13 document; provided, however, that a failure to serve a timely Notice of Designation of 14 deposition testimony as required by this Order, even if inadvertent, waives any 15 protection for deposition testimony. If a party designates a document as Confidential 16 Information after it was initially produced or adds a document to the Index of 17 Confidential Investigative Documents or the Index of Retroactively Designated 18 Confidential Investigative Documents, the receiving party, on notification of the 19 designation, must make a reasonable effort to assure that the document is treated in 20 accordance with the provisions of this Order. No party shall be found to have violated 21 this Order for failing to maintain the confidentiality of a document during a time when 22 that document has not been designated, even where the failure to so designate was 23 inadvertent and where the document is subsequently designated as containing 24 Confidential Information or added to the Index of Confidential Investigative 25 Documents or the Index of Retroactively Designated Confidential Investigative 26 Documents. 27 28 7. Filing of Confidential Information. (a) Any Confidential Information filed with the Court shall be redacted 8 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 9 of 16 1 in accordance with Rule 5.2 of the Federal Rules of Civil Procedure (“Rule 5.2”). If 2 any party believes, in good faith, that additional categories of information should be 3 redacted prior to filing any document produced during discovery, the parties agree to 4 meet and confer and, if unable to reach an agreement, submit their dispute to the Court 5 for resolution. 6 (b) Unless the designating party agrees otherwise, until the Court issues 7 a ruling that a document designated as containing Confidential Information does not in 8 fact contain Confidential Information, no party may file any Confidential Information 9 with the Court unless such filing is made under seal or the Confidential Information is 10 redacted. Any party wishing to file a document designated as Confidential Information 11 in connection with a motion, brief or other submission to the Court must comply with 12 Federal Rule of Civil Procedure 5.2, Local Rule 10-5, and this District’s ECF 13 Procedures. 14 8. No Greater Protection of Specific Documents. Except on privilege 15 grounds not addressed by this Order, no party may withhold information from 16 discovery on the ground that it requires protection greater than that afforded by this 17 Order unless the party moves for an order providing such special protection. 18 9. Challenges by a Party to Designation as Confidential 19 Information. The designation of any document as Confidential Information is subject 20 to challenge by any party. The following procedure shall apply to any such challenge. 21 (a) A party challenging the designation of Meet and Confer. 22 Confidential Information must do so in good faith, including because the party intends 23 to use the document in a manner for which the designation creates burdens to the 24 party’s use, and must begin the process by giving written notice to the party designating 25 the disputed information. The written notice shall identify the information to which 26 the objection is made and explain the basis for its belief that the confidentiality 27 designation was not proper. The parties agree to meet and confer regarding the notice 28 within five (5) business days. 9 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 10 of 16 1 (b) Judicial Intervention. If the parties cannot resolve the objection 2 within five (5) business days after the meet and confer, the party challenging the 3 designation may file an appropriate motion requesting that the Court determine whether 4 the disputed information should be subject to the terms of this Protective Order. This 5 Protective Order will not affect the burden of proof on any such motion, or impose any 6 burdens upon any party that would not exist had the Protective Order not been entered; 7 as a general matter, the burden shall be on the person making the designation to 8 establish the propriety of the designation. Any contested information shall continue to 9 be treated as confidential and subject to this Protective Order until such time as such 10 motion has been ruled upon. 11 10. Use of Confidential Documents or Information at Trial. Nothing 12 in this Order shall be construed to affect the use of any document, including any such 13 document designated as Confidential Information, at any trial or hearing. 14 11. Right to Assert Other Objections. By stipulating to the entry of 15 this Order, no party waives any right it otherwise would have to object to disclosing or 16 producing any document, information, or item on any ground not addressed in this 17 Order. Similarly, no party waives any right to object on any ground to the use in 18 evidence of any of the documents covered by this Order. 19 20 12. Confidential Information Subpoenaed or Ordered Produced in Other Litigation. 21 (a) If a receiving party is served with a subpoena or an order issued in 22 other litigation that would compel disclosure of any document designated in this action 23 as Confidential Information, the receiving party must so notify the designating party, 24 in writing, promptly and in no event more than three court days after receiving the 25 subpoena or order. Such notification must include a copy of the subpoena or court 26 order. 27 28 (b) The receiving party also must promptly inform in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the 10 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 11 of 16 1 documents covered by the subpoena or order is the subject of this Order. In addition, 2 the receiving party must deliver a copy of this Order promptly to the party in the other 3 action that caused the subpoena to issue. 4 (c) The purpose of imposing these duties is to alert the interested 5 persons to the existence of this Order and to afford the designating party in this case 6 an opportunity to try to protect its Confidential Information in the court from which 7 the subpoena or order issued. The designating party shall bear the burden and the 8 expense of seeking protection in that court of its Confidential Information, and nothing 9 in these provisions should be construed as authorizing or encouraging a receiving party 10 in this action to disobey a lawful directive from another court. The obligations set forth 11 in this paragraph remain in effect while the party has in its possession, custody or 12 control Confidential Information by the other party to this case. 13 13. 14 Obligations on Conclusion of Litigation. (a) Order Continues in Force. Unless otherwise agreed or ordered, 15 this Order shall remain in force after dismissal or entry of final judgment not subject 16 to further appeal. 17 18 19 (b) Obligations at Conclusion of Litigation. Any retained Confidential Information shall continue to be protected under this Order. 14. Order Subject to Modification. This Order shall be subject to 20 modification by the Court on its own initiative or on motion of a party or any other 21 person with standing concerning the subject matter. 22 15. No Prior Judicial Determination. This Order is entered based on 23 the representations of the parties and for the purpose of facilitating discovery. Nothing 24 herein shall be construed or presented as a judicial determination that any document 25 designated Confidential Information by counsel or the parties is entitled to be filed 26 under seal or protected under Rule 26(c) of the Federal Rules of Civil Procedure or 27 otherwise until such time as the Court may rule on a specific document or issue. 28 11 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 12 of 16 1 16. Persons Bound. This Order shall take effect when entered and shall be 2 binding upon all counsel of record and their law firms, the parties, and persons made 3 subject to this Order by its terms. 4 /s/ Christopher E. Martin Christopher E. Martin Polly A. Atkinson Attorneys for Plaintiff Securities and Exchange Commission 1961 Stout Street, Suite 1700 Denver, Colorado 80294 Telephone: (303) 844-1106 Dated: September 17, 2020 5 6 7 8 9 10 11 12 {Remainder of Page Intentionally Left Blank} 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 13 of 16 1 /s/ Theodore L. Kornobis THEODORE L. KORNOBIS (D.C. Bar No. 997236) admitted pro hac vice Email: ted.kornobis@klgates.com STEPHEN G. TOPETZES (D.C. Bar No. 424593) admitted pro hac vice Email: Stephen.topetzes@klgates.com STAVROULA E. LAMBRAKOPOULOS (D.C. Bar No. 453167) admitted pro hac vice Email: stavroula.lambrakopoulos@klgates.com K&L Gates LLP 1601 K St. N.W. Washington, D.C. 20006 Telephone: (202) 778-9000 Dated: September 17, 2020 2 3 4 5 6 7 8 9 10 11 ROBERT J. CASSITY Nevada Bar No. 9779 Email: bcassity@hollandhart.com SYDNEY R. GAMBEE Nevada Bar No. 14201 Email: srgambee@hollandhart.com HOLLAND & HART LLP 9555 Hillwood Drive, 2nd Floor Las Vegas, NV 89134 Telephone: (702) 669-4600 12 13 14 15 16 Attorneys for Defendant Bradley C. Reifler and the Relief Defendants 17 18 19 20 IT IS SO ORDERED: 21 22 23 HONORABLE Daniel J. AlbregtsDANIEL J. United States Magistrate Judge ALBREGTS UNITED STATES MAGISTRATE DATED: September 18, 2020 JUDGE 24 25 26 27 28 13 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 14 of 16 1 2 CERTIFICATE OF SERVICE I certify that on September 17, 2020, I caused the foregoing document to be 3 4 5 electronically filed with the Court using the ECF system, which will send notification of such filing to ECF-registered counsel. 6 7 /s/ Christopher E. Martin Christopher E. Martin 8 9 Attorney for Plaintiff Securities and Exchange Commission 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 15 of 16 Attachment A 1 2 3 4 5 6 7 CHRISTOPHER E. MARTIN (AZ. Bar No. 018486) admitted pro hac vice Email: martinc@sec.gov POLLY A. ATKINSON (CO. Bar No. 18703) admitted pro hac vice Email: atkinsonpolly@sec.gov Attorneys for Plaintiff Securities and Exchange Commission 1961 Stout Street, Suite 1700 Denver, Colorado 80294 Telephone: (303) 844-1106 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 13 SECURITIES AND EXCHANGE COMMISSION, 14 vs. 15 16 Defendant, 18 and 19 FOREFRONT PARTNERS, LLC FOREFRONT CAPITAL SERVICES, LLC, and PORT ROYAL-NCM, LLC, 21 ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND BRADLEY C. REIFLER, 17 20 Case No. 20-cv-00511-RFB-DJA Plaintiff, 22 Judge Richard F. Boulware, II Magistrate Judge Daniel J. Albregts Relief Defendants. 23 24 The undersigned hereby acknowledges that he/she has read the Protective 25 Order dated in the above-captioned action and 26 attached hereto, understands the terms thereof, and agrees to be bound by its terms. 27 The undersigned submits to the jurisdiction of the United States District Court for the 28 District of Nevada in matters relating to the Protective Order and understands that the 15 Case 2:20-cv-00511-RFB-DJA Document 37 Filed 09/18/20 Page 16 of 16 1 terms of the Confidentiality Order obligate him/her to use documents, materials, and 2 information designated as Confidential Information in accordance with the Order 3 solely for the purposes of the above-captioned action, and not to disclose any such 4 Confidential Information to any other person, firm or concern. 5 6 The undersigned acknowledges that violation of the Protective Order may result in penalties for contempt of court. 7 8 9 10 Name: 11 Job Title: 12 Employer: 13 Business Address: 14 15 16 17 18 19 Date: Signature 20 21 22 23 24 25 26 27 28 16
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