Joint MOTION for Protective Order Concerning Confidential Information by SECURITIES AND EXCHANGE COMMISSION. (Attachments: # (1) Exhibit Proposed Protective Order)(Murphy, John)
Page 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
No. 1-23-cv-01599-ABJ-ZMF
BINANCE HOLDINGS LIMITED,
BAM TRADING SERVICES INC.,
BAM MANAGEMENT US HOLDINGS
INC., AND CHANGPENG ZHAO,
Defendants.
[PROPOSED] PROTECTIVE ORDER
Upon consideration of the Joint Motion for a Protective Order and pursuant to Federal
Rule of Civil Procedure 26(c), Federal Rule of Evidence 502(d), and for good cause shown, IT
IS HEREBY ORDERED that this Protective Order (hereafter the “Order”) shall control the
disclosure, dissemination, and use of material produced in discovery in the above-captioned
litigation (hereafter the “Litigation”).
This Order shall govern the production, use, and disclosure of all information and
materials produced by any party or non-party in response to any discovery request and the
informal exchange of information in the Litigation (including, but not limited to, documents,
interrogatory answers, responses to requests for admissions, and deposition transcripts and
exhibits), all information contained in those materials, and all copies, excerpts, or summaries of
those materials (collectively, “Discovery Material”). Page 2 Parties issuing any discovery to a non-party will provide them with a copy of this order
at the time discovery is served to ensure the non-parties producing documents and information
are aware of the requirements set forth herein.
As described below, the parties shall meet and confer and no later than 60 days before
summary judgment briefs are due submit a joint proposal to the Court concerning the use of
Protected Material for summary judgment, at trial, and for any subsequent appeal and propose
any corresponding modifications to this Protective Order.
I.
1.
PROTECTED CONFIDENTIAL MATERIAL
Designation of Protected Material. A party or non-party may, in good faith,
designate Discovery Material as CONFIDENTIAL or HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY and therefore subject to the protections and requirements of this
Order.
Any party may designate Discovery Material as CONFIDENTIAL that the party
reasonably believes is confidential information because it falls into at least one of the following
categories:
(a)
Nonpublic trade secret, proprietary information, and financial information,
including profitability reports or estimates, percentage fees, design fees, royalty
rates, minimum guarantee payments, sales reports, and sales margins;
(b)
Nonpublic material relating to ownership or control of any non-public
company;
(c)
Nonpublic information about the identities of individuals who hold and
control any private or administrative keys relating to company or customer crypto
assets;
(d)
Nonpublic customer information including the identities of customers; Page 3 (e)
Nonpublic business plans, product development information, or marketing
plans;
(f)
Any information of a confidential, personal, or intimate nature regarding
any individual, including any such individual’s status or identification as a
whistleblower, victim, or investor related to this Litigation;
(g)
information which an FDIC-Receiver is legally obligated by law to keep
confidential or that a FDIC-Receiver would not normally reveal to third parties
except in confidence or has undertaken with others to maintain in confidence;
(h)
any information that could compromise the security of customer accounts
or assets held by any party or non-party; or
(i)
Any other category of information hereinafter given confidential status by
the Court.
CONFIDENTIAL information also includes any information previously produced and
designated as confidential in this litigation.
Any party or non-party may designate Discovery Material as HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY that is highly sensitive, non-public information that falls into one
of the categories above that the party reasonably believes is so sensitive that its disclosure to
persons other than those permitted pursuant to this Order, is substantially likely to result in
significant injury to the Designating Party.
The
parties
recognize
that
designations
of
CONFIDENTIAL
or
HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY shall not apply to all documents and
information produced in discovery, and the designation will be applied to only Discovery Material
that specifically qualifies as set forth herein. Page 4 Discovery Material designated CONFIDENTIAL or HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY is “Protected Material.” Consistent with the requirements of this
paragraph, a party may, within twenty-one (21) calendar days of receipt of the Discovery
Materials, by written notice to the other parties, designate as CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY any Discovery Materials produced or given by
the other parties or by a nonparty but not designated CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY by that other party or non-party.
2.
Limitations on Use. Protected Material and its contents, as well as copies
(electronic or otherwise), summaries, notes, memoranda, and computer databases (to the extent
such materials are reflected or stored in said databases) relating thereto, shall be used solely by
the receiving party for the purpose of litigating the Litigation, shall be and remain confidential,
and shall not be disclosed in any fashion, nor used for any purpose other than litigating the
Litigation pursuant to the terms of this Order. Notwithstanding the foregoing, this Order shall not
preclude or in any way limit the SEC from using, retaining, or disclosing any Discovery Materials
without notifying or seeking permission from the producing party, including any Protected
Material, investigative files, or other information, within the Commission itself; to any other
governmental agencies or bodies or other appropriate agencies, entities, or persons consistent with
its statutory and regulatory obligations including its “Routine Uses of Information,” set forth in
the Commission’s Forms 1661 (Supplemental Information for Entities Directed to Supply
Information to the Commission Other Than Pursuant to Commission Subpoena) and (Supplemental Information for Persons Requested to Supply Information Voluntarily or Directed
to Supply Information Pursuant to a Commission Subpoena), regardless of whether the Form itself Page 5 applies to the materials or information or the production thereof; and/or to comply with any other
statutory or regulatory obligation.
3.
Limited Disclosure of Protected Material Designated as CONFIDENTIAL.
Protected Material designated as CONFIDENTIAL may be disclosed, subject to the specific
procedures and provisions contained in this Order, to the following persons and/or entities only:
(a)
The parties;
(b)
This Court and the officers, employees, and any stenographic reporters of
such courts, under seal, in camera or ex parte;
(c)
Counsel representing the parties in the Litigation and counsel and personnel
of the SEC advising the SEC in the Litigation, as well as counsel’s support
personnel whose functions require access to Protected Material (collectively
“Attorney Professionals”);
(d)
Outside vendors who perform scanning, photocopying, computer
classification, translation, or similar clerical functions, or who process
electronically stored documents and trial technology, and graphics, retained by the
parties or their counsel in the Litigation, but only for the purposes of performing
such services and only so long as necessary to perform those services;
(e)
Experts consulted or retained by counsel for assistance in the preparation or
prosecution of claims or defenses in the Litigation, for the purposes of performing
such services, preparing a written opinion, preparing to testify, or assisting counsel
in the Litigation;
(f)
A witness who has been noticed or subpoenaed for deposition or a court
appearance in the Litigation to the extent reasonably necessary for the preparation Page 6 or giving of his or her testimony about Protected Material, and such witness may
not retain the Protected Material;
(g)
An author or recipient of the Protected Material who is identified on the
face of the Protected Material;
(h)
Arbitrators or mediators engaged by the parties in connection with this
action;
(i)
Any other person who is so designated by order of this Court or by written
agreement of the producing party.
4.
No Protected Material designated as CONFIDENTIAL may be disclosed to persons
identified in subparagraphs (e), (f), or (i) of the prior Paragraph until they have reviewed this Order
and have executed a written agreement in the form attached hereto as Exhibit A, which executed
agreements shall be maintained by counsel of record for the party making the disclosure to such
persons (provided that Counsel who makes such disclosure shall retain the written agreement but
shall not be required to produce it to opposing counsel until the deposition of the person or unless
ordered by the Court). To the extent any materials or information subsequently designated
CONFIDENTIAL has already been disclosed, counsel for the disclosing party must ensure the
recipient(s) of such Protected Material is notified of the designation and has reviewed and will
comply with the Order that shall apply to the Protected Material already disclosed.
5.
Limited
Disclosure
of
Protected
Material
Designated
as
HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY. Protected Material designated as HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY may be disclosed, subject to the specific
procedures and provisions contained in this Order, to the following persons and/or entities only: Page 7 (a)
This Court and the officers, employees, and any stenographic reporters of
such courts, under seal, in camera or ex parte;
(b)
Attorney Professionals;
(c)
Outside vendors who perform scanning, photocopying, computer
classification, translation, or similar clerical functions, or who process
electronically stored documents and trial technology, and graphics, retained by the
parties or their counsel in the Litigation, but only for the purposes of performing
such services and only so long as necessary to perform those services;
(d)
Experts consulted or retained by counsel for assistance in the preparation or
prosecution of claims or defenses in the Litigation, for the purposes of performing
such services, preparing a written opinion, preparing to testify, or assisting counsel
in the Litigation;
(e)
An author or recipient of the Protected Material who is identified on the
face of the Protected Material;
(f)
Arbitrators or mediators engaged by the parties in connection with this
action;
(g)
Any other person who is so designated by order of this Court or by written
agreement of the producing party.
6.
No Protected Material designated as HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY may be disclosed to persons identified in subparagraphs (d) or (g) of the prior
Paragraph until they have reviewed this Order and have executed a written agreement in the form
attached hereto as Exhibit A, which executed agreements shall be maintained by counsel of record
for the party making the disclosure to such persons (provided that Counsel who makes such Page 8 disclosure shall retain the written agreement but shall not be required to produce it to opposing
counsel until the deposition of the person or unless ordered by the Court). To the extent any
materials or information subsequently designated HIGHLY CONFIDENTIAL has already been
disclosed, counsel for the disclosing party must ensure the recipient(s) of such Protected Material
is notified of the designation and has reviewed and will comply with the Order that shall apply to
the Protected Material already disclosed.
7.
Parties’ Use of Their Own Documents and Records. Nothing in this Order shall
prevent a party or non-party that produces Discovery Material from using or disclosing its own
information, including Discovery Material and Protected Material, in any manner it chooses.
8.
Mechanics of Designation. No designation of CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY shall be effective as to any element of Protected
Material unless there is placed on or affixed to each page of such Protected Material a marking of
“CONFIDENTIAL” or "HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” In the
case of electronic documents produced in native format, such designation may be made on the
physical media (e.g., disk, flash drive) containing such electronic documents and on a slipsheet
accompanying the native file if the file is served electronically. Testimony may be designated
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY within thirty
(30) calendar days after receipt of a certified transcript of said testimony by furnishing to counsel
for the other parties a detailed statement of the specific portions of any such information, by page
and line number or exhibit number: by designating lines and pages as confidential by highlighting
or digital marking; or by a statement on the record at the time the testimony is given. Pending the
expiration of said thirty (30) calendar days, all parties shall presumptively treat the entire
deposition transcript as CONFIDENTIAL. In addition to the requirements of this Order, the court Page 9 reporter before whom a deposition or other testimony relating to Protected Material is taken shall,
at the request of any party, designate a portion of the deposition or any exhibits or portions thereof
containing Protected Material as CONFIDENTIAL or HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.
9.
Challenges to Designation. Any party may seek an order from the Court
determining that specified Protected Material is not entitled to be treated as CONFIDENTIAL or
HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. Prior to seeking such an order, the
party seeking the order must notify the designating party in writing specifying the confidentiality
designation it is challenging, and the basis for such challenge. The designating party shall then
have seven (7) calendar days from receipt of that notice to respond explaining its basis for the
designation. The challenging party may then, at any time thereafter, file a motion challenging the
designation. Failure to provide a timely response to a written notification of a challenge to a
confidentiality designation shall be deemed a waiver of the right to demand confidential treatment
of the challenged material, and no motion challenging the designation for the material subject to
the waiver shall be necessary. In addition, a challenging party may also challenge a confidentiality
designation in connection with a motion and accompanying motion to seal provided, however, that
the moving party comply with the notice and timing provisions in this paragraph. The challenging
party may identify for the court that certain information is subject to a challenge of the
confidentiality designation. Material subject to a challenged confidentiality designation shall
remain Protected Material under the terms of this Order unless and until the right to demand
confidential treatment has been waived pursuant to this paragraph, or the Court determines that
such material is not entitled to such designation. For the purposes of any motion or other request
brought by a party seeking an order from the Court determining that specified Protected Material Page 10 is not entitled to be treated as CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY, the burden shall be on the designating party to demonstrate that such designation is
appropriate.
10.
Late Designation. The failure of a party or nonparty to designate information or
documents as CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
in accordance with this Order, and the failure to object to such a designation, is not a waiver of the
right to do so and shall not preclude a party or nonparty at a later time from subsequently
designating or objecting to the designation of such information or documents as CONFIDENTIAL
or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. However, the parties understand
and acknowledge that a party’s or nonparty’s failure to designate information or documents as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY relieves the
other parties of any obligation of confidentiality until such a designation is made. Promptly after
written notice to the receiving parties of any such subsequent designation by the producing party
or nonparty, which notice shall specifically identify the documents or information to be designated,
the parties and, if applicable, nonparties, shall confer and agree upon a method to mark as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY any such
subsequently designated documents or information, as well as copies, excerpts, or summaries of
those materials. All documents containing any such subsequently designated information will be
thereafter treated in accordance with this Order.
11.
Use of Protected Material in Court Filings and Proceedings.
(a)
Parties seeking to file with the Court any motions, briefs, supporting documents, or
other filings containing Protected Material (including any unresolved challenge to a
Confidentiality designation) shall redact such Protected Material in the public filing or file the Page 11 Protected Material under seal and submit an unredacted version to all parties and the Court at the
time of filing. Notwithstanding Local Rule 5.1(h), parties may file any document that is entirely
Protected Material under seal without filing a motion to seal at the time of filing, as long as the
parties comply with the procedure for motions to seal set forth in subpart (b) immediately below.
Parties should minimize the need to file documents under seal.
(b)
Within 7 calendar days of the completion of all briefing with respect to a motion or
filing involving Protected Material (i.e., within 7 calendar days after the filing of any opposition
and, if applicable, supporting reply), the party
that designated the Protected Material
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY when it was
produced shall file a motion to seal that either explains the basis for keeping each instance of
Protected Material redacted or under seal or agrees to withdraw the confidentiality designation(s).
Any party may oppose the motion to seal in whole or in part as to the request to keep the Protected
Material redacted or under seal and/or maintain the designation of the Protected Material as
CONFIDENTIAL OR HIGHLY CONFIDENTIAL. Notwithstanding the designation of material
as CONFIDENTIAL or HIGHLY CONFIDENTIAL, or initial treatment as redacted or under seal,
there is no presumption that Protected Material will be treated by the Court as such and maintained
under seal. The Court retains discretion not to afford confidential treatment to any Protected
Material submitted to the Court or presented in connection with any motion, application, or
proceeding that may result in an order and/or decision by the Court unless it is able to make the
specific findings required by law to retain the confidential nature of such material.
(c)
If a non-party designated the Protected Material at-issue in paragraphs 7(a) and
7(b), then the party who obtained that Protected Material from the non-party or used that Protected
Material in a filing, is responsible for conferring with the non-party to advise them of procedures Page 12 set forth in paragraph 7(b) of this Order and to determine whether the non-party believes that the
Protected Material should remain under seal or be unsealed in redacted form.
(d)
The parties shall meet and confer and, no less than 60 days before summary
judgment briefs are due and submit a joint proposal to the Court concerning the use of Protected
Material for summary judgment, at trial, and for any subsequent appeal and any corresponding
modifications to this Protective Order that may be necessary.
12.
Non-Waiver. The designation of Protected Material pursuant to the Order shall not
be construed as a waiver of any objection or a concession by any party that such Protected Material
is relevant or material to any issue or admissible at trial. Nor shall a failure to object to the
designation of any such Protected Material be construed as a concession by the receiving parties
that such Protected Material is, in fact, confidential or otherwise entitled to protection under the
terms of this Order. All parties maintain their respective rights to object to production of any
requested documents on the grounds that they are otherwise not discoverable, including, but not
limited to, objections based on any applicable privilege, undue burden, overbreadth, relevance,
and proportionality to the needs of the case.
13.
Control of Protected Material. All Protected Material shall be maintained under the
direct control of counsel of record in the Litigation, who shall be responsible for preventing any
disclosure thereof, except as permitted by the terms of this Order. Attorney Professionals may
review and make working copies, abstracts, and digests of Protected Material for use in connection
with the Litigation, and such working copies, abstracts, and digests shall be deemed Protected
Material under the terms of this Order provided that access to Protected Material, in whatever form
stored or reproduced, shall be limited to those persons entitled to receive such information pursuant Page 13 to the terms of this Order and shall be appropriately marked in accordance with the terms of this
Order.
14.
Destruction of Protected Material. Unless otherwise ordered or agreed to in writing
by the producing party, within sixty (60) days after the final termination of this litigation by
settlement or exhaustion of all appeals, all parties in receipt of Protected Material shall use
reasonable efforts to either return such materials and copies thereof to the producing party or
destroy such Protected Material and certify that fact in writing. The receiving party’s reasonable
efforts shall not require the return or destruction of Protected Material from (i) disaster recovery
or business continuity backups, (ii) data stored in back-end databases critical to application
operability and system-generated temporary folders, (iii) archived data with limited end-user
accessibility, or (iv) material that is subject to legal hold obligations or commingled with other
such material. Backup storage media will not be restored for purposes of returning or certifying
destruction of Protected Material, but such retained information shall continue to be treated in
accordance with the Order and destroyed in due course.
15.
Counsel for the parties shall be entitled to retain copies of court papers (and exhibits
thereto), correspondence, pleadings, deposition and trial transcripts (and exhibits thereto), legal
memoranda, expert reports, communications, attorney work product, or any document or material
that constitutes a “record” as defined in the Federal Records Act as amended, 44 U.S.C. §§ 2101 et
seq., 2901 et seq., 3101 et seq., 3301 et seq.(“FRA”) and SEC rules promulgated thereunder, that
contain or refer to Protected Material, provided that such counsel and employees of such counsel
shall not disclose such Confidential Material to any person, except pursuant to court order or
required by the FRA. Nothing shall be interpreted in a manner that would violate any applicable
law including the FRA, canons of ethics, or codes of professional responsibility. Page 14 16.
Subpoena or Other Legal Request For Protected Material. If a person in possession
of Protected Material who is not the producing party with respect to that Protected Material
receives a subpoena or other request seeking production or other disclosure of Protected Material,
then that person shall immediately give written notice to counsel for the producing party,
identifying the Protected Material sought and the date and time that production or other disclosure
is required. In no event should production or disclosure be made without written approval by
counsel for the producing party or by further order of the Court or another court of competent
jurisdiction. For purposes of this Order, a party’s designation of Protected Material shall be
deemed a request for confidentiality under 17 C.F.R. § 200.83 in the event of a Freedom of
Information Act request for such material.
This provision does not apply to or in any way limit the Securities and Exchange
Commission’s disclosure of Protected Material to appropriate agencies, entities, or persons,
pursuant to its statutory and regulatory obligations consistent with its Routine Uses of Information,
without notice to counsel for the producing party of any requests for or disclosure of such Protected
Material.
17.
Inadvertent Disclosure.
Inadvertent disclosure of any Protected Material,
regardless of whether said Protected Material was so designated at the time of disclosure, shall not
be deemed a waiver in whole or in part of the protectability of the Protected Material in accordance
with the terms of this Order, either as to the specific Protected Material disclosed, or as to any
other information relating thereto or relating to the same or related subject matter. Should any
Protected Material be disclosed, through inadvertence or otherwise, to any person and/or entity not
entitled to access or review same, then such person and/or entity: Page 15 (a)
Will be informed promptly of all provisions of this Order by the party
responsible for the inadvertent disclosure;
(b)
Will immediately be identified to all parties; and
(c)
Will be requested, in writing by the party responsible for the inadvertent
disclosure, to return the material to the party responsible for the inadvertent
disclosure.
18.
To the extent that any federal or state law, regulation, or other legal authority
governing the custody, disclosure, or use of specified records, including but not limited to the
Right to Financial Privacy Act and the Privacy Act of 1974, imposes a requirement to obtain an
order of a court of competent jurisdiction to permit disclosure of such records, this Order shall
constitute compliance with such requirement, in accordance with 5 U.S.C. § 552a(b)(11) and C.F.R § 310.10(b)(11). To the extent that any applicable law requires a producing party or
receiving party to obtain a court-ordered subpoena, or give or receive notice to, or proof of notice
having been given to, or obtain consent, in any form or manner, from any person or entity before
disclosure of any such records, the Court finds that, in view of the protections provided for such
disclosed information in this Order, the volume of documents to be produced and the ongoing
oversight of the Court, there is good cause to excuse such requirement, and this Order shall
constitute an express direction that the producing party is exempted from obtaining a court-ordered
subpoena, or having to notify and/or obtain consent from any person or entity prior to the
disclosure of such records. Any party may seek additional orders from this Court that such party
believes may be necessary to comply with applicable law.
19.
Modification. This Order is without prejudice to the right of any party to apply at
any time for additional protection, or to amend, modify, or rescind the restrictions of this Order. Page 16 The party must provide written notice to counsel of record for all parties in the Litigation
specifying the portion(s) of this Order it seeks to amend, modify, or rescind and any additional
provisions it may seek to add to the Order. The written notice must be served seven (7) calendar
days in advance of filing any such motion. The parties expressly reserve the right to seek
modification, amendment, or rescission of this Order by mutual agreement in writing.
20.
Enforcement. All parties and persons to whom Protected Material is disclosed shall
be provided a copy of this Order and be subject to the jurisdiction of this Court, for the purpose of
enforcing this Order, whether or not they entered into the agreement attached at Exhibit A. This
Order shall continue in full force and effect, and shall be binding upon the parties and all persons
to whom Protected Material has been disclosed, both during and after the pendency of the
Litigation.
II.
1.
PRIVILEGE AND ATTORNEY WORK-PRODUCT
Non-Waiver. Consistent with Federal Rule of Evidence 502(d), the production of
Discovery Material, whether or not inadvertent, shall not constitute a waiver of any Privilege
(including attorney-client privilege, attorney work-product, deliberative process privilege, law
enforcement privilege, or similar protection, and any other protections afforded by Federal Rule
of Civil Procedure 26(b)), as to any Discovery Material, or as to any other undisclosed privileged
or protected communications or information concerning the same subject matter, in this or in any
other federal or state proceeding, notwithstanding Fed. R. Evid. 502 (a) and (b).
2.
Claw-back & Challenge Procedures.
(a)
If the producing party determines that a document it has produced, or part
thereof, is subject to any Privilege, the producing party shall promptly give the
receiving party notice of the claim of Privilege (“Privilege Notice”). The Privilege
Notice must contain information sufficient to identify the document including, if Page 17 applicable, a Bates number as well as an identification of the Privilege asserted and
its basis.
(b)
If a party discovers a document, or part thereof, produced by another party
that is subject to any Privilege, the receiving party shall promptly notify the
producing party and provide a reasonable opportunity for the producing party to
give the receiving party a Privilege Notice identifying the Privilege asserted and its
basis. However, this Paragraph (and this Order) do not shift the burden to identify
privileged and protected documents from the producing party to the receiving party.
(c)
Upon receiving the Privilege Notice, if the receiving party agrees with the
Privilege assertion made, the receiving party must promptly return the specified
document(s) and any copies or destroy the document(s) and copies and certify to
the producing party that the document(s) and copies have been destroyed. The
receiving party must also sequester and destroy any notes taken about the
document. If a receiving party disclosed the document or information specified in
the notice before receiving the Privilege Notice, it must take reasonable steps to
retrieve it, and so notify the producing party of the disclosure and its efforts to
retrieve the document or information.
(d)
Upon receiving the Privilege Notice, if the receiving party wishes to dispute
a producing party’s Privilege Notice, the receiving party shall promptly meet and
confer with the producing party. The document(s) shall be sequestered – and, if
applicable, securely stored – and not be used by the receiving party in the Litigation
(e.g., filed as an exhibit to a pleading or used in deposition) while the dispute is
pending, with the exception that it may be used in the context of a challenge to a Page 18 Privilege assertion, as long as the material subject to the Privilege assertion is
redacted or sealed pending resolution of the challenge. If the parties are unable to
come to an agreement about the Privilege assertions made in the Privilege Notice,
the receiving party may contact chambers to propose a telephone conference with
the Court and propose times that are convenient to both sides or file a motion with
the Court to resolve the issue.
(e)
Pending resolution of the judicial determination, the parties shall each
preserve and refrain from using the challenged information for any purpose and
shall not disclose it to any person other than those required by law to be served with
a copy of any sealed motion authorized to be filed by the Court pursuant to this
Paragraph. To the extent there is a motion or other filing containing documents or
information subject to any Privilege or challenge thereto, such motion or other
filing must not publicly disclose the information claimed to be privileged.
Subsequent briefing or filings by any party shall also not publicly disclose the
information claimed to be privileged if the Privilege claim remains unresolved or
is resolved in the producing party’s favor.
3.
Back-Up Tapes. If a document must be returned or destroyed as determined by the
process above, that document, along with copies and notes about the document, that exist on backup tapes, systems, or similar storage need not be immediately deleted or destroyed, and, instead,
such materials shall be overwritten and destroyed in the normal course of business. Until they are
overwritten in the normal course of business, the receiving party will take reasonable steps to limit
access, if any, to the persons necessary to conduct routine IT and cybersecurity functions. Page 19 4.
Additional Provisions. Nothing in this Order shall constitute an admission that any
document or information disclosed in the Litigation is properly subject to any Privilege, or that
any party is entitled to raise or assert any Privilege. Nothing in this Order shall prohibit parties
from withholding from production or seeking to compel any document covered by any applicable
Privilege or other protection.
SO ORDERED,
this ____ day of ______ 2023.
_______________________
Amy Berman Jackson
United States District Judge Page 20 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
No. 1-23-cv-01599-ABJ-ZMF
BINANCE HOLDINGS LIMITED,
BAM TRADING SERVICES INC.,
BAM MANAGEMENT US HOLDINGS
INC., AND CHANGPENG ZHAO,
Defendants.
APPENDIX A
AGREEMENT AND CONSENT TO PROTECTIVE ORDER
The undersigned hereby declares and acknowledges as follows:
1.
I have read the Protective Order (the “Order”) entered in the above-captioned case
on _________________, and I fully understand its contents.
2.
I am a person described in Paragraph 3(e), (f), and/or (i) or Paragraph 5(d) and/or
(g) of the Order. I understand that by signing this agreement and consent, I will be eligible to
receive Protected Material under the terms and conditions of the Order.
3.
I hereby agree and consent to be bound by the terms of the Order and to comply
with it in all respects, and, to that end, I hereby knowingly and voluntarily submit myself to the
personal jurisdiction of the United States District Court for the District of Columbia so that the
Court shall have the power and authority to enforce the Order and to impose appropriate sanctions
upon me for violating the Order, including punishment for contempt of court.
Dated:__________________________
________________________________
(Signature)
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Case 1:23-cv-01599-ABJ-ZMF Document 106-1 Filed 09/11/23 Page 1 of 20
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
No. 1-23-cv-01599-ABJ-ZMF
BINANCE HOLDINGS LIMITED,
BAM TRADING SERVICES INC.,
BAM MANAGEMENT US HOLDINGS
INC., AND CHANGPENG ZHAO,
Defendants.
[PROPOSED] PROTECTIVE ORDER
Upon consideration of the Joint Motion for a Protective Order and pursuant to Federal
Rule of Civil Procedure 26(c), Federal Rule of Evidence 502(d), and for good cause shown, IT
IS HEREBY ORDERED that this Protective Order (hereafter the “Order”) shall control the
disclosure, dissemination, and use of material produced in discovery in the above-captioned
litigation (hereafter the “Litigation”).
This Order shall govern the production, use, and disclosure of all information and
materials produced by any party or non-party in response to any discovery request and the
informal exchange of information in the Litigation (including, but not limited to, documents,
interrogatory answers, responses to requests for admissions, and deposition transcripts and
exhibits), all information contained in those materials, and all copies, excerpts, or summaries of
those materials (collectively, “Discovery Material”).
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Parties issuing any discovery to a non-party will provide them with a copy of this order
at the time discovery is served to ensure the non-parties producing documents and information
are aware of the requirements set forth herein.
As described below, the parties shall meet and confer and no later than 60 days before
summary judgment briefs are due submit a joint proposal to the Court concerning the use of
Protected Material for summary judgment, at trial, and for any subsequent appeal and propose
any corresponding modifications to this Protective Order.
I.
1.
PROTECTED CONFIDENTIAL MATERIAL
Designation of Protected Material. A party or non-party may, in good faith,
designate Discovery Material as CONFIDENTIAL or HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY and therefore subject to the protections and requirements of this
Order.
Any party may designate Discovery Material as CONFIDENTIAL that the party
reasonably believes is confidential information because it falls into at least one of the following
categories:
(a)
Nonpublic trade secret, proprietary information, and financial information,
including profitability reports or estimates, percentage fees, design fees, royalty
rates, minimum guarantee payments, sales reports, and sales margins;
(b)
Nonpublic material relating to ownership or control of any non-public
company;
(c)
Nonpublic information about the identities of individuals who hold and
control any private or administrative keys relating to company or customer crypto
assets;
(d)
Nonpublic customer information including the identities of customers;
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(e)
Nonpublic business plans, product development information, or marketing
plans;
(f)
Any information of a confidential, personal, or intimate nature regarding
any individual, including any such individual’s status or identification as a
whistleblower, victim, or investor related to this Litigation;
(g)
information which an FDIC-Receiver is legally obligated by law to keep
confidential or that a FDIC-Receiver would not normally reveal to third parties
except in confidence or has undertaken with others to maintain in confidence;
(h)
any information that could compromise the security of customer accounts
or assets held by any party or non-party; or
(i)
Any other category of information hereinafter given confidential status by
the Court.
CONFIDENTIAL information also includes any information previously produced and
designated as confidential in this litigation.
Any party or non-party may designate Discovery Material as HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY that is highly sensitive, non-public information that falls into one
of the categories above that the party reasonably believes is so sensitive that its disclosure to
persons other than those permitted pursuant to this Order, is substantially likely to result in
significant injury to the Designating Party.
The
parties
recognize
that
designations
of
CONFIDENTIAL
or
HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY shall not apply to all documents and
information produced in discovery, and the designation will be applied to only Discovery Material
that specifically qualifies as set forth herein.
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Discovery Material designated CONFIDENTIAL or HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY is “Protected Material.” Consistent with the requirements of this
paragraph, a party may, within twenty-one (21) calendar days of receipt of the Discovery
Materials, by written notice to the other parties, designate as CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY any Discovery Materials produced or given by
the other parties or by a nonparty but not designated CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY by that other party or non-party.
2.
Limitations on Use. Protected Material and its contents, as well as copies
(electronic or otherwise), summaries, notes, memoranda, and computer databases (to the extent
such materials are reflected or stored in said databases) relating thereto, shall be used solely by
the receiving party for the purpose of litigating the Litigation, shall be and remain confidential,
and shall not be disclosed in any fashion, nor used for any purpose other than litigating the
Litigation pursuant to the terms of this Order. Notwithstanding the foregoing, this Order shall not
preclude or in any way limit the SEC from using, retaining, or disclosing any Discovery Materials
without notifying or seeking permission from the producing party, including any Protected
Material, investigative files, or other information, within the Commission itself; to any other
governmental agencies or bodies or other appropriate agencies, entities, or persons consistent with
its statutory and regulatory obligations including its “Routine Uses of Information,” set forth in
the Commission’s Forms 1661 (Supplemental Information for Entities Directed to Supply
Information to the Commission Other Than Pursuant to Commission Subpoena) and 1662
(Supplemental Information for Persons Requested to Supply Information Voluntarily or Directed
to Supply Information Pursuant to a Commission Subpoena), regardless of whether the Form itself
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applies to the materials or information or the production thereof; and/or to comply with any other
statutory or regulatory obligation.
3.
Limited Disclosure of Protected Material Designated as CONFIDENTIAL.
Protected Material designated as CONFIDENTIAL may be disclosed, subject to the specific
procedures and provisions contained in this Order, to the following persons and/or entities only:
(a)
The parties;
(b)
This Court and the officers, employees, and any stenographic reporters of
such courts, under seal, in camera or ex parte;
(c)
Counsel representing the parties in the Litigation and counsel and personnel
of the SEC advising the SEC in the Litigation, as well as counsel’s support
personnel whose functions require access to Protected Material (collectively
“Attorney Professionals”);
(d)
Outside vendors who perform scanning, photocopying, computer
classification, translation, or similar clerical functions, or who process
electronically stored documents and trial technology, and graphics, retained by the
parties or their counsel in the Litigation, but only for the purposes of performing
such services and only so long as necessary to perform those services;
(e)
Experts consulted or retained by counsel for assistance in the preparation or
prosecution of claims or defenses in the Litigation, for the purposes of performing
such services, preparing a written opinion, preparing to testify, or assisting counsel
in the Litigation;
(f)
A witness who has been noticed or subpoenaed for deposition or a court
appearance in the Litigation to the extent reasonably necessary for the preparation
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or giving of his or her testimony about Protected Material, and such witness may
not retain the Protected Material;
(g)
An author or recipient of the Protected Material who is identified on the
face of the Protected Material;
(h)
Arbitrators or mediators engaged by the parties in connection with this
action;
(i)
Any other person who is so designated by order of this Court or by written
agreement of the producing party.
4.
No Protected Material designated as CONFIDENTIAL may be disclosed to persons
identified in subparagraphs (e), (f), or (i) of the prior Paragraph until they have reviewed this Order
and have executed a written agreement in the form attached hereto as Exhibit A, which executed
agreements shall be maintained by counsel of record for the party making the disclosure to such
persons (provided that Counsel who makes such disclosure shall retain the written agreement but
shall not be required to produce it to opposing counsel until the deposition of the person or unless
ordered by the Court). To the extent any materials or information subsequently designated
CONFIDENTIAL has already been disclosed, counsel for the disclosing party must ensure the
recipient(s) of such Protected Material is notified of the designation and has reviewed and will
comply with the Order that shall apply to the Protected Material already disclosed.
5.
Limited
Disclosure
of
Protected
Material
Designated
as
HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY. Protected Material designated as HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY may be disclosed, subject to the specific
procedures and provisions contained in this Order, to the following persons and/or entities only:
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(a)
This Court and the officers, employees, and any stenographic reporters of
such courts, under seal, in camera or ex parte;
(b)
Attorney Professionals;
(c)
Outside vendors who perform scanning, photocopying, computer
classification, translation, or similar clerical functions, or who process
electronically stored documents and trial technology, and graphics, retained by the
parties or their counsel in the Litigation, but only for the purposes of performing
such services and only so long as necessary to perform those services;
(d)
Experts consulted or retained by counsel for assistance in the preparation or
prosecution of claims or defenses in the Litigation, for the purposes of performing
such services, preparing a written opinion, preparing to testify, or assisting counsel
in the Litigation;
(e)
An author or recipient of the Protected Material who is identified on the
face of the Protected Material;
(f)
Arbitrators or mediators engaged by the parties in connection with this
action;
(g)
Any other person who is so designated by order of this Court or by written
agreement of the producing party.
6.
No Protected Material designated as HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY may be disclosed to persons identified in subparagraphs (d) or (g) of the prior
Paragraph until they have reviewed this Order and have executed a written agreement in the form
attached hereto as Exhibit A, which executed agreements shall be maintained by counsel of record
for the party making the disclosure to such persons (provided that Counsel who makes such
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disclosure shall retain the written agreement but shall not be required to produce it to opposing
counsel until the deposition of the person or unless ordered by the Court). To the extent any
materials or information subsequently designated HIGHLY CONFIDENTIAL has already been
disclosed, counsel for the disclosing party must ensure the recipient(s) of such Protected Material
is notified of the designation and has reviewed and will comply with the Order that shall apply to
the Protected Material already disclosed.
7.
Parties’ Use of Their Own Documents and Records. Nothing in this Order shall
prevent a party or non-party that produces Discovery Material from using or disclosing its own
information, including Discovery Material and Protected Material, in any manner it chooses.
8.
Mechanics of Designation. No designation of CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY shall be effective as to any element of Protected
Material unless there is placed on or affixed to each page of such Protected Material a marking of
“CONFIDENTIAL” or "HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” In the
case of electronic documents produced in native format, such designation may be made on the
physical media (e.g., disk, flash drive) containing such electronic documents and on a slipsheet
accompanying the native file if the file is served electronically. Testimony may be designated
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY within thirty
(30) calendar days after receipt of a certified transcript of said testimony by furnishing to counsel
for the other parties a detailed statement of the specific portions of any such information, by page
and line number or exhibit number: by designating lines and pages as confidential by highlighting
or digital marking; or by a statement on the record at the time the testimony is given. Pending the
expiration of said thirty (30) calendar days, all parties shall presumptively treat the entire
deposition transcript as CONFIDENTIAL. In addition to the requirements of this Order, the court
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reporter before whom a deposition or other testimony relating to Protected Material is taken shall,
at the request of any party, designate a portion of the deposition or any exhibits or portions thereof
containing Protected Material as CONFIDENTIAL or HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.
9.
Challenges to Designation. Any party may seek an order from the Court
determining that specified Protected Material is not entitled to be treated as CONFIDENTIAL or
HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. Prior to seeking such an order, the
party seeking the order must notify the designating party in writing specifying the confidentiality
designation it is challenging, and the basis for such challenge. The designating party shall then
have seven (7) calendar days from receipt of that notice to respond explaining its basis for the
designation. The challenging party may then, at any time thereafter, file a motion challenging the
designation. Failure to provide a timely response to a written notification of a challenge to a
confidentiality designation shall be deemed a waiver of the right to demand confidential treatment
of the challenged material, and no motion challenging the designation for the material subject to
the waiver shall be necessary. In addition, a challenging party may also challenge a confidentiality
designation in connection with a motion and accompanying motion to seal provided, however, that
the moving party comply with the notice and timing provisions in this paragraph. The challenging
party may identify for the court that certain information is subject to a challenge of the
confidentiality designation. Material subject to a challenged confidentiality designation shall
remain Protected Material under the terms of this Order unless and until the right to demand
confidential treatment has been waived pursuant to this paragraph, or the Court determines that
such material is not entitled to such designation. For the purposes of any motion or other request
brought by a party seeking an order from the Court determining that specified Protected Material
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is not entitled to be treated as CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY, the burden shall be on the designating party to demonstrate that such designation is
appropriate.
10.
Late Designation. The failure of a party or nonparty to designate information or
documents as CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
in accordance with this Order, and the failure to object to such a designation, is not a waiver of the
right to do so and shall not preclude a party or nonparty at a later time from subsequently
designating or objecting to the designation of such information or documents as CONFIDENTIAL
or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. However, the parties understand
and acknowledge that a party’s or nonparty’s failure to designate information or documents as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY relieves the
other parties of any obligation of confidentiality until such a designation is made. Promptly after
written notice to the receiving parties of any such subsequent designation by the producing party
or nonparty, which notice shall specifically identify the documents or information to be designated,
the parties and, if applicable, nonparties, shall confer and agree upon a method to mark as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY any such
subsequently designated documents or information, as well as copies, excerpts, or summaries of
those materials. All documents containing any such subsequently designated information will be
thereafter treated in accordance with this Order.
11.
Use of Protected Material in Court Filings and Proceedings.
(a)
Parties seeking to file with the Court any motions, briefs, supporting documents, or
other filings containing Protected Material (including any unresolved challenge to a
Confidentiality designation) shall redact such Protected Material in the public filing or file the
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Protected Material under seal and submit an unredacted version to all parties and the Court at the
time of filing. Notwithstanding Local Rule 5.1(h), parties may file any document that is entirely
Protected Material under seal without filing a motion to seal at the time of filing, as long as the
parties comply with the procedure for motions to seal set forth in subpart (b) immediately below.
Parties should minimize the need to file documents under seal.
(b)
Within 7 calendar days of the completion of all briefing with respect to a motion or
filing involving Protected Material (i.e., within 7 calendar days after the filing of any opposition
and, if applicable, supporting reply), the party
that designated the Protected Material
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY when it was
produced shall file a motion to seal that either explains the basis for keeping each instance of
Protected Material redacted or under seal or agrees to withdraw the confidentiality designation(s).
Any party may oppose the motion to seal in whole or in part as to the request to keep the Protected
Material redacted or under seal and/or maintain the designation of the Protected Material as
CONFIDENTIAL OR HIGHLY CONFIDENTIAL. Notwithstanding the designation of material
as CONFIDENTIAL or HIGHLY CONFIDENTIAL, or initial treatment as redacted or under seal,
there is no presumption that Protected Material will be treated by the Court as such and maintained
under seal. The Court retains discretion not to afford confidential treatment to any Protected
Material submitted to the Court or presented in connection with any motion, application, or
proceeding that may result in an order and/or decision by the Court unless it is able to make the
specific findings required by law to retain the confidential nature of such material.
(c)
If a non-party designated the Protected Material at-issue in paragraphs 7(a) and
7(b), then the party who obtained that Protected Material from the non-party or used that Protected
Material in a filing, is responsible for conferring with the non-party to advise them of procedures
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set forth in paragraph 7(b) of this Order and to determine whether the non-party believes that the
Protected Material should remain under seal or be unsealed in redacted form.
(d)
The parties shall meet and confer and, no less than 60 days before summary
judgment briefs are due and submit a joint proposal to the Court concerning the use of Protected
Material for summary judgment, at trial, and for any subsequent appeal and any corresponding
modifications to this Protective Order that may be necessary.
12.
Non-Waiver. The designation of Protected Material pursuant to the Order shall not
be construed as a waiver of any objection or a concession by any party that such Protected Material
is relevant or material to any issue or admissible at trial. Nor shall a failure to object to the
designation of any such Protected Material be construed as a concession by the receiving parties
that such Protected Material is, in fact, confidential or otherwise entitled to protection under the
terms of this Order. All parties maintain their respective rights to object to production of any
requested documents on the grounds that they are otherwise not discoverable, including, but not
limited to, objections based on any applicable privilege, undue burden, overbreadth, relevance,
and proportionality to the needs of the case.
13.
Control of Protected Material. All Protected Material shall be maintained under the
direct control of counsel of record in the Litigation, who shall be responsible for preventing any
disclosure thereof, except as permitted by the terms of this Order. Attorney Professionals may
review and make working copies, abstracts, and digests of Protected Material for use in connection
with the Litigation, and such working copies, abstracts, and digests shall be deemed Protected
Material under the terms of this Order provided that access to Protected Material, in whatever form
stored or reproduced, shall be limited to those persons entitled to receive such information pursuant
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to the terms of this Order and shall be appropriately marked in accordance with the terms of this
Order.
14.
Destruction of Protected Material. Unless otherwise ordered or agreed to in writing
by the producing party, within sixty (60) days after the final termination of this litigation by
settlement or exhaustion of all appeals, all parties in receipt of Protected Material shall use
reasonable efforts to either return such materials and copies thereof to the producing party or
destroy such Protected Material and certify that fact in writing. The receiving party’s reasonable
efforts shall not require the return or destruction of Protected Material from (i) disaster recovery
or business continuity backups, (ii) data stored in back-end databases critical to application
operability and system-generated temporary folders, (iii) archived data with limited end-user
accessibility, or (iv) material that is subject to legal hold obligations or commingled with other
such material. Backup storage media will not be restored for purposes of returning or certifying
destruction of Protected Material, but such retained information shall continue to be treated in
accordance with the Order and destroyed in due course.
15.
Counsel for the parties shall be entitled to retain copies of court papers (and exhibits
thereto), correspondence, pleadings, deposition and trial transcripts (and exhibits thereto), legal
memoranda, expert reports, communications, attorney work product, or any document or material
that constitutes a “record” as defined in the Federal Records Act as amended, 44 U.S.C. §§ 2101 et
seq., 2901 et seq., 3101 et seq., 3301 et seq.(“FRA”) and SEC rules promulgated thereunder, that
contain or refer to Protected Material, provided that such counsel and employees of such counsel
shall not disclose such Confidential Material to any person, except pursuant to court order or
required by the FRA. Nothing shall be interpreted in a manner that would violate any applicable
law including the FRA, canons of ethics, or codes of professional responsibility.
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16.
Subpoena or Other Legal Request For Protected Material. If a person in possession
of Protected Material who is not the producing party with respect to that Protected Material
receives a subpoena or other request seeking production or other disclosure of Protected Material,
then that person shall immediately give written notice to counsel for the producing party,
identifying the Protected Material sought and the date and time that production or other disclosure
is required. In no event should production or disclosure be made without written approval by
counsel for the producing party or by further order of the Court or another court of competent
jurisdiction. For purposes of this Order, a party’s designation of Protected Material shall be
deemed a request for confidentiality under 17 C.F.R. § 200.83 in the event of a Freedom of
Information Act request for such material.
This provision does not apply to or in any way limit the Securities and Exchange
Commission’s disclosure of Protected Material to appropriate agencies, entities, or persons,
pursuant to its statutory and regulatory obligations consistent with its Routine Uses of Information,
without notice to counsel for the producing party of any requests for or disclosure of such Protected
Material.
17.
Inadvertent Disclosure.
Inadvertent disclosure of any Protected Material,
regardless of whether said Protected Material was so designated at the time of disclosure, shall not
be deemed a waiver in whole or in part of the protectability of the Protected Material in accordance
with the terms of this Order, either as to the specific Protected Material disclosed, or as to any
other information relating thereto or relating to the same or related subject matter. Should any
Protected Material be disclosed, through inadvertence or otherwise, to any person and/or entity not
entitled to access or review same, then such person and/or entity:
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(a)
Will be informed promptly of all provisions of this Order by the party
responsible for the inadvertent disclosure;
(b)
Will immediately be identified to all parties; and
(c)
Will be requested, in writing by the party responsible for the inadvertent
disclosure, to return the material to the party responsible for the inadvertent
disclosure.
18.
To the extent that any federal or state law, regulation, or other legal authority
governing the custody, disclosure, or use of specified records, including but not limited to the
Right to Financial Privacy Act and the Privacy Act of 1974, imposes a requirement to obtain an
order of a court of competent jurisdiction to permit disclosure of such records, this Order shall
constitute compliance with such requirement, in accordance with 5 U.S.C. § 552a(b)(11) and 12
C.F.R § 310.10(b)(11). To the extent that any applicable law requires a producing party or
receiving party to obtain a court-ordered subpoena, or give or receive notice to, or proof of notice
having been given to, or obtain consent, in any form or manner, from any person or entity before
disclosure of any such records, the Court finds that, in view of the protections provided for such
disclosed information in this Order, the volume of documents to be produced and the ongoing
oversight of the Court, there is good cause to excuse such requirement, and this Order shall
constitute an express direction that the producing party is exempted from obtaining a court-ordered
subpoena, or having to notify and/or obtain consent from any person or entity prior to the
disclosure of such records. Any party may seek additional orders from this Court that such party
believes may be necessary to comply with applicable law.
19.
Modification. This Order is without prejudice to the right of any party to apply at
any time for additional protection, or to amend, modify, or rescind the restrictions of this Order.
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The party must provide written notice to counsel of record for all parties in the Litigation
specifying the portion(s) of this Order it seeks to amend, modify, or rescind and any additional
provisions it may seek to add to the Order. The written notice must be served seven (7) calendar
days in advance of filing any such motion. The parties expressly reserve the right to seek
modification, amendment, or rescission of this Order by mutual agreement in writing.
20.
Enforcement. All parties and persons to whom Protected Material is disclosed shall
be provided a copy of this Order and be subject to the jurisdiction of this Court, for the purpose of
enforcing this Order, whether or not they entered into the agreement attached at Exhibit A. This
Order shall continue in full force and effect, and shall be binding upon the parties and all persons
to whom Protected Material has been disclosed, both during and after the pendency of the
Litigation.
II.
1.
PRIVILEGE AND ATTORNEY WORK-PRODUCT
Non-Waiver. Consistent with Federal Rule of Evidence 502(d), the production of
Discovery Material, whether or not inadvertent, shall not constitute a waiver of any Privilege
(including attorney-client privilege, attorney work-product, deliberative process privilege, law
enforcement privilege, or similar protection, and any other protections afforded by Federal Rule
of Civil Procedure 26(b)), as to any Discovery Material, or as to any other undisclosed privileged
or protected communications or information concerning the same subject matter, in this or in any
other federal or state proceeding, notwithstanding Fed. R. Evid. 502 (a) and (b).
2.
Claw-back & Challenge Procedures.
(a)
If the producing party determines that a document it has produced, or part
thereof, is subject to any Privilege, the producing party shall promptly give the
receiving party notice of the claim of Privilege (“Privilege Notice”). The Privilege
Notice must contain information sufficient to identify the document including, if
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applicable, a Bates number as well as an identification of the Privilege asserted and
its basis.
(b)
If a party discovers a document, or part thereof, produced by another party
that is subject to any Privilege, the receiving party shall promptly notify the
producing party and provide a reasonable opportunity for the producing party to
give the receiving party a Privilege Notice identifying the Privilege asserted and its
basis. However, this Paragraph (and this Order) do not shift the burden to identify
privileged and protected documents from the producing party to the receiving party.
(c)
Upon receiving the Privilege Notice, if the receiving party agrees with the
Privilege assertion made, the receiving party must promptly return the specified
document(s) and any copies or destroy the document(s) and copies and certify to
the producing party that the document(s) and copies have been destroyed. The
receiving party must also sequester and destroy any notes taken about the
document. If a receiving party disclosed the document or information specified in
the notice before receiving the Privilege Notice, it must take reasonable steps to
retrieve it, and so notify the producing party of the disclosure and its efforts to
retrieve the document or information.
(d)
Upon receiving the Privilege Notice, if the receiving party wishes to dispute
a producing party’s Privilege Notice, the receiving party shall promptly meet and
confer with the producing party. The document(s) shall be sequestered – and, if
applicable, securely stored – and not be used by the receiving party in the Litigation
(e.g., filed as an exhibit to a pleading or used in deposition) while the dispute is
pending, with the exception that it may be used in the context of a challenge to a
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Privilege assertion, as long as the material subject to the Privilege assertion is
redacted or sealed pending resolution of the challenge. If the parties are unable to
come to an agreement about the Privilege assertions made in the Privilege Notice,
the receiving party may contact chambers to propose a telephone conference with
the Court and propose times that are convenient to both sides or file a motion with
the Court to resolve the issue.
(e)
Pending resolution of the judicial determination, the parties shall each
preserve and refrain from using the challenged information for any purpose and
shall not disclose it to any person other than those required by law to be served with
a copy of any sealed motion authorized to be filed by the Court pursuant to this
Paragraph. To the extent there is a motion or other filing containing documents or
information subject to any Privilege or challenge thereto, such motion or other
filing must not publicly disclose the information claimed to be privileged.
Subsequent briefing or filings by any party shall also not publicly disclose the
information claimed to be privileged if the Privilege claim remains unresolved or
is resolved in the producing party’s favor.
3.
Back-Up Tapes. If a document must be returned or destroyed as determined by the
process above, that document, along with copies and notes about the document, that exist on backup tapes, systems, or similar storage need not be immediately deleted or destroyed, and, instead,
such materials shall be overwritten and destroyed in the normal course of business. Until they are
overwritten in the normal course of business, the receiving party will take reasonable steps to limit
access, if any, to the persons necessary to conduct routine IT and cybersecurity functions.
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4.
Additional Provisions. Nothing in this Order shall constitute an admission that any
document or information disclosed in the Litigation is properly subject to any Privilege, or that
any party is entitled to raise or assert any Privilege. Nothing in this Order shall prohibit parties
from withholding from production or seeking to compel any document covered by any applicable
Privilege or other protection.
SO ORDERED,
this ____ day of ______ 2023.
_______________________
Amy Berman Jackson
United States District Judge
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Case 1:23-cv-01599-ABJ-ZMF Document 106-1 Filed 09/11/23 Page 20 of 20
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
No. 1-23-cv-01599-ABJ-ZMF
BINANCE HOLDINGS LIMITED,
BAM TRADING SERVICES INC.,
BAM MANAGEMENT US HOLDINGS
INC., AND CHANGPENG ZHAO,
Defendants.
APPENDIX A
AGREEMENT AND CONSENT TO PROTECTIVE ORDER
The undersigned hereby declares and acknowledges as follows:
1.
I have read the Protective Order (the “Order”) entered in the above-captioned case
on _________________, and I fully understand its contents.
2.
I am a person described in Paragraph 3(e), (f), and/or (i) or Paragraph 5(d) and/or
(g) of the Order. I understand that by signing this agreement and consent, I will be eligible to
receive Protected Material under the terms and conditions of the Order.
3.
I hereby agree and consent to be bound by the terms of the Order and to comply
with it in all respects, and, to that end, I hereby knowingly and voluntarily submit myself to the
personal jurisdiction of the United States District Court for the District of Columbia so that the
Court shall have the power and authority to enforce the Order and to impose appropriate sanctions
upon me for violating the Order, including punishment for contempt of court.
Dated:__________________________
________________________________
(Signature)
________________________________
(Printed Name)
________________________________
(Address)
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