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MIO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Feb-19-2016 3:38 pm
Case Number: CGC-16-549804
Filing Date: Feb-19-2016 3:38
Filed by: FELICIA GREEN
Image: 05280999
ORDER
GOLDEN PACIFIC BANK, N.A. VS. BILLYFLOAT, INC. ET AL
001005280999
Instructions:
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FER 192016
1 San Francisco County Superior Court
BRUCE A. SCHEIDT, State Bar No. 155088 FEB 1 9 2016
bscheidt@kmtg.com —
CHRISTOPHER ONSTOTT, State Bar No. 225968 CLERK OF THE COURT
constott@kmtg.com BY:
ERROL C. DAUIS, State Bar No. 279313 Deputy Clerk
edauis@kmig.com
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
400 Capitol Mall, 27" Floor
Sacramento, California 95814
Telephone: (916) 321-4500
Facsimile: (916) 321-4555
Attorneys for Plaintiff
GOLDEN PACIFIC BANK, N.A.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
GOLDEN PACIFIC BANK, N.A., Case No. CGC-16-549804
(Former Sacramento County Superior Court
Plaintiff, Case No. 34-2015-00185106)
v. STIPULATED CONFIDENTIALITY
AGREEMENT AND [PROPOSED] HC
BILLFLOAT, INC., RYAN GILBERT, SEAN | PROTECTIVE ORDER
O'MALLEY, and DOES 1-50, inclusive,
Defendants. Action Filed: October 2, 2015
Trial Date: Not Yet Set
WHEREAS, Plaintiff GOLDEN PACIFIC BANK, N.A., and Defendants BILLFLOAT,
INC., RYAN GILBERT, and SEAN O'MALLEY (collectively, the "Parties") have commenced
pretrial discovery in the above-captioned matter;
WHEREAS, certain documents that will be produced may contain confidential, private,
proprietary, and/or trade secret or other sensitive business information ("Confidential
Information");
WHEREAS, the Parties wish to provide a mechanism for the exchange of Confidential
Information in a manner that will protect its confidentiality and sensitivity and limit its
dissemination; and
WHEREAS, Code of Civil Procedure sections 2025.420, 2030.090, and 2031.060 provide
for the issuance of protective orders limiting the disclosure of discovered information in
1427254.1 14023-004 1
STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDER10
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appropriate circumstances, and California Rules of Court 2.550, 2.551, 2.585, and 8.46 provide for
the lodging and filing under seal of appropriate discovery information;
IT IS HEREBY STIPULATED AND AGREED, by and between the Partics, through
their respective counsel of record, as follows:
1. This Stipulated Confidentiality Agreement and Protective Order shall govern all
documents, things, and information produced or provided by the Parties, non-parties, and their
respective representatives in the above-captioned case that are designated "CONFIDENTIAL"
pursuant to Paragraph 2 of this Stipulated Confidentiality Agreement and Protective Order, and
any copies, summaries, pleadings, transcripts, or other documents containing quotations from or
references thereto or information contained therein.
2. The information subject to a "CONFIDENTIAL" designation may include
documents, interrogatory answers, responses to requests for admissions, deposition testimony,
other materials and information that are requested, produced, provided, served or filed in this
action and which contain confidential, private, proprietary, and/or trade secret information of the
Parties, their current and former employees, or their customers and/or clients, including
information protected by the privacy rights of current and former employees and customers and/or
clients, that is protectable under California or other applicable law ("Confidential Information" or
“CONFIDENTIAL").
3. All CONFIDENTIAL designations shall be made based upon a good-faith belief
that the material being designated qualifies, by virtue of its confidential, private, proprietary, or
competitively sensitive nature, as warranting protection. By designating a document, thing,
material, testimony, or other information derived therefrom as CONFIDENTIAL under the terms
of this Stipulated Confidentiality Agreement and Protective Order, the Party making the
designation is certifying to the Court that there is a good-faith basis for the designation. The Party
must take care to designate for protection only those parts of material, documents, items, or oral or
written communications that qualify as CONFIDENTIAL.
4. Each page of each document produced pursuant to discovery in this action shall
bear a unique identifying BATES number. All materials designated as CONFIDENTIAL pursuant
14272541 14023-004 2
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to this Stipulated Confidentiality Agreement and Protective Order shall be clearly stamped by the
Party or other person making the designation with the following on each page:
"CONFIDENTIAL"
5. If a response to an interrogatory or request for admission calls for the disclosure of
CONFIDENTIAL information, the responding Party should so designate "CONFIDENTIAL" in
Tesponding to the question or request.
6. Any designation of deposition testimony as CONFIDENTIAL shall be made within
thirty (30) days after the Parties' and/or deponent’s receipt of a transcript of such proceedings. The
designating Party shall advise the court reporter of this Stipulated Confidentiality Agreement and
Protective Order and of the fact that testimony and/or exhibits marked at the deposition are
CONFIDENTIAL. The court reporter shall mark the cover of the transcript of the deposition with
the following: "This transcript contains information designated CONFIDENTIAL pursuant to an
Order of the Court under which there are penalties for improper use or disclosure." The court
reporter shall also mark each page of the transcript with the following: "CONFIDENTIAL."
7. CONFIDENTIAL materials shall not be copied or reproduced for use in this action
or for any other reason except to the extent such copying or reproduction is reasonably necessary
to the conduct of this action. All such copies and reproductions shall be subject to the terms of
this Stipulated Confidentiality Agreement and Protective Order. If the duplicating process by
which copies or reproductions of CONFIDENTIAL materials does not preserve the designation
that appears on the documents or other materials, all such copies or reproductions shail be stamped
with the following designation: "CONFIDENTIAL."
8. Nothing contained in this Stipulated Confidentiality Agreement and Protective
Order shall be construed to constitute a waiver, either in whole or in part, of a Party's right to
claim that material not designated as CONFIDENTIAL is in fact CONFIDENTIAL within the
terms of this Stipulated Confidentiality Agreement and Protective Order, including documents
produced by non-parties, or that the specific information disclosed, any related information, or any
information on the same or a related subject matter is CONFIDENTIAL. Subsequent designations
shall be accomplished by notifying counsel for all Parties and providing a replacement production
1427254.1 14023-004 3
STIPULATED CONFIDENTIALITY AGREEMENT AND {PROPOSED] PROTECTIVE ORDER.Bw Rw De
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that reflects the CONFIDENTIAL designation. Upon discovery of an inadvertent or unintentional
disclosure of CONFIDENTIAL information, counsel for the Parties, should, to the extent possible,
cooperate to restore the confidentiality of any CONFIDENTIAL information that was
inadvertently or unintentionally disclosed.
9. Any Party which has designated any material as CONFIDENTIAL pursuant to this
Stipulated Confidentiality Agreement and Protective Order may consent to the removal of such
designation by so notifying counsel for the other Party in writing.
10. Materials designated as CONFIDENTIAL may be used in this action only. All
CONFIDENTIAL materials shall not be used for any other purposes, except by the person
designating it as such.
11. Materials designated as CONFIDENTIAL shalt not be shown or otherwise
disclosed to any person by the receiving Party except to the following persons:
a. The Parties and their officers, directors, members, partners, and current
employees who are responsible for assisting in the prosecution and/or defense
of this action;
b. The attorneys of the Parties, including counsel of record, in-house counsel,
and other attorneys, paralegals, legal assistants, clerical, secretarial, and other
staff employed or retained by the Parties' attorneys;
c. Any person who prepared or originated the document, who is indicated on its
face as the sender or a recipient of a copy, or who otherwise legitimately
received a copy;
d. The independent experts or consultants retained or consulted by a Party, and
their partners, associates, and stenographic, secretarial, paralegal, clerical, and
other employees and/or assistants;
e. The Court and related officials involved in this action, including judges,
magistrates, commissioners, referees, jurors, court reporters and
videographers, and other Court personnel;
14272541 14023-004 4
STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERUR ww
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f. Mediators and/or other neutrals who are appointed, engaged, or retained by
the Court or the Parties; and
g. Any person who a Party reasonably and in good faith anticipates to be a
witness at a deposition or trial in this action, who has some relationship to the
CONFIDENTIAL material, but only to the extent that such disclosure is
necessary for the conduct of this litigation and provided that such persons
may not retain any CONFIDENTIAL material.
12. Prior to the disclosure of any materials designated as CONFIDENTIAL to any
person identified in Paragraphs 11(c), (d), or (g) herein, such person shall be furnished with a copy
of this Stipulated Confidentiality Agreement and Protective Order and shall be required to execute
the certificate attached as Exhibit A hereto. Counsel for the Party disclosing CONFIDENTIAL
materials shall maintain these written certifications, and they shall be available to opposing
counsel for inspection and copying within sixty (60) days after termination of this litigation,
whether by settlement, judgment, appeal, dismissal, or otherwise upon a showing of good cause.
13. Disclosure of CONFIDENTIAL materials other than in accordance with the terms
of this Stipulated Confidentiality Agreement and Protective Order may subject the disclosing
person to such sanctions and remedies as the Court may deem appropriate, including without
limitation, contempt, injunctive relief, and damages. This Stipulated Confidentiality Agreement
and Protective Order is enforceable by injunction and any violation or threatened violation is
enforceable by a request for an injunction.
14. In the event that any CONFIDENTIAL material is used in any Court proceeding,
the information shal! not lose its confidential status through such use, and the Party using such
information shall take all reasonable steps to maintain its confidentiality during such use.
15. The filing and lodging of all CONFIDENTIAL materials shall be governed by
California Rules of Court 2.550 and 2.551. The Parties shall file and/or lodge all such
CONFIDENTIAL materials in accordance with the foregoing California Rules of Court. The
designation "CONFIDENTIAL" shall be stamped on the envelope used to seal such materials and
a statement substantially in the following form shall also be printed on the envelope:
14272541 14023-004 5
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"CONDITIONALLY UNDER SEAL: Golden Pacifie Bank, N.A. v. BillFloat, Inc., et al., San
Francisco County Superior Court Case No. CGC-16-549804 (formerly Sacramento County
Superior Court Case No. 34-2015-00185106). This filing is subject to a Stipulated Confidentiality
Agreement and Protective Order issued by the Court and may not be examined or copied except in
compliance with that Order."
16. Pending the determination by the Court of any motion to seal and/or to strike made
pursuant to California Rules of Court 2.550 and 2.551 or the provisions of this Stipulated
Confidentiality Agreement and Protective Order, any hearing on such motion, or on the underlying
motion or other proceeding, shall be conducted in open court, but no Party shall make any
reference to the substance of the CONFIDENTIAL material during the hearing in open court. If it
is necessary during the hearing for a Party to make reference to the substance of the
CONFIDENTIAL material, then, subject to the Court's discretion, that portion of the hearing will
take place in the judge's chambers or with the courtroom closed to the public,
17. This Stipulated Confidentiality Agreement and Protective Order shall be without
prejudice to the right of any Party or non-party to bring before this Court, a challenge as to
whether any particular document or information should or should not be designated as
CONFIDENTIAL in accordance with the terms of this Stipulated Confidentiality Agreement and
Protective Order. Neither any Party's failure to object to any designation of materials as being
CONFIDENTIAL, nor anything contained in this Stipulated Confidentiality Agreement and
Protective Order, shall be construed as a waiver of any rights and/or defenses by any Party,
including a claim that such materials are not confidential and/or protectable, or construed in any
manner as an admission by a Party that the documents and/or materials subsequently designated or
labeled by another Party and/or non-party as CONFIDENTIAL in fact contains confidential
information.
18. Any Party may challenge the designation of any material as CONFIDENTIAL and
request removal of such designation as follows:
a. The Party seeking such removal shal! give the Party which designated the
materials as CONFIDENTIAL written notice thereof specifying the
1427254.1, 14023-004 6
STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERCO WN DH BR YBN A
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information as to which such removal is sought and the reasons for the
request;
b, If the Parties cannot reach agreement concerning the matter within a
reasonable time after service of the notice, then the Party requesting the
removal of the designation for the material as CONFIDENTIAL may file and
serve a regularly-noticed motion for an order of this Court directing that the
"CONFIDENTIAL" designation shall be removed; and
c. Ifsuch a motion is filed, the documents or other materials shall be deemed
properly designated as CONFIDENTIAL unless and until the Court rules
otherwise.
19. Ia Party or its counsel or expert is served with a subpoena or other process by any
court, administrative or legislative body, or any other person or organization which calls for
production of materials designated as CONFIDENTIAL that were produced by another Party, then
the Party to whom the subpoena or other process is directed shall not, to the extent permitted by
applicable law, provide or otherwise disclose such documents or information until ten (10)
business days after notifying counsel for the producing Party (by email, facsimile, or FedEx) in
writing of all of the following:
a, The information and documentation which is requested for production in the
subpoena;
b. The date on which compliance with the subpoena is requested;
c. The location at which compliance with the subpoena is requested;
d. The identity of the party serving the subpoena; and
e. Thecase name, jurisdiction, index, docket, complaint, charge, civil action, or
other identification number or other designation identifying the litigation,
administrative proceeding, or other proceeding in which the subpoena has
been issued.
20. The Parties agree that the inadvertent production of materials subject to the
attorney-client privilege, work product doctrine, and/or any other applicable privilege or
1427254.1 14023-004 7
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protection ("PROTECTED MATERIAL") shall not constitute a waiver of such privilege and/or
protection. Upon receipt of timely written notice from the Party which disclosed it that
PROTECTED MATERIAL has inadvertently been disclosed, the Party receiving it shall
immediately return all such PROTECTED MATERIAL — including without limitation any and
all reproductions of the PROTECTED MATERIAL, and/or documents referencing, summarizing,
paraphrasing, or otherwise disclosing the PROTECTED MATERIAL — to the producing Party
and shall not in any way rely upon such PROTECTED MATERIAL in connection with this action
or otherwise. No use shall be made of such documents during depositions or at trial, nor shall they
be disclosed to anyone who was not given access to them prior to the request to return them. The
inadvertent production shall not be the basis to support a motion to compel the returned
documents. Nothing contained herein is intended to, and/or does, constitute a waiver of any
Party's right to challenge any designation of "PROTECTED MATERIAL" and/or move to compel
the production of such documents.
21. Nothing in this Stipulated Confidentiality Agreement and Protective Order is
intended to and/or does amend, relive, and/or affect in any way any Party's or non-party's pre-
existing duties to maintain the confidentiality of information that is presently or hereafter in its
possession,
22. Nothing in this Stipulated Confidentiality Agreement and Protective Order shall
prevent any Party from disclosing its own material designated CONFIDENTIAL and/or
PROTECTED MATERIAL in any manner that it considers appropriate.
23. The terms of this Stipulated Confidentiality Agreement and Protective Order shall
survive and remain in effect after the termination of this litigation, and the Court shall retain
jurisdiction following termination of this litigation for the purpose enforcing any provisions of this
Stipulated Confidentiality Agreement and Protective Order. The Parties shall take such measures
as are necessary and appropriate to prevent the public discourse of CONFIDENTIAL materials,
through inadvertence or otherwise, after the conclusion of this litigation, All Parties and other
persons who receive CONFIDENTIAL materials shall be under a continuing duty not to disclose
such information obtained in the course of this litigation, and this duty shall continue in full force
1427254.1 14023-004 8
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and effect after the completion of this litigation.
24. Except as otherwise may be agreed to by the Parties, but not later than sixty (60)
days after the termination of this litigation, whether by settlement, judgment, appeal, dismissal, or
otherwise, all copies of any information designated as CONFIDENTIAL shall be returned to the
producing Party or destroyed, except for material reasonably considered by counsel to be their
respective work product. Counsel shall certify in writing to opposing counsel that all such
information has been returned to the producing Party or destroyed. Notwithstanding this
obligation, counsel of record for each Party may retain one copy of any designated materials and
of any pleadings filed under seal herein, and one copy of each transcript containing designated
material for their files.
25. To facilitate the advancement of discovery in this action, the Parties expressly
agree that either Party may produce its trade secret disclosure pursuant to Code of Civil Procedure
section 2019.210 ("Trade Secret Disclosure") prior to the Court's formal entry of the Protective
Order. The Parties expressly agree that such production of the Trade Secret Disclosure shall be
designated Confidential and will be protected from public disclosure pursuant to the terms of this
Stipulated Confidentiality Agreement and that each Party will be bound to this Agreement's terms
with respect to the production specified in this paragraph, regardless of whether the Court enters or
rejects the requested Protective Order, in whole or in part. Production of a Trade Secret
Disclosure referenced in this paragraph is not intended to be construed to constitute a waiver of the
alleged trade secrets set forth in the Trade Secret Disclosure. The Parties further agree that neither
Party will use the production of the above referenced Trade Secret Disclosure prior to the Court's
entry (or even rejection) of the Protective Order to argue that the producing Party has waived its
alleged trade secrets set forth in the Trade Secret Disclosure.
26. This Stipulated Confidentiality Agreement and Protective Order may be
supplemented and/or amended by the Parties upon an appropriate showing to the Court or on the
Court's own motion. Should the Court require modifications to this Stipulated Confidentiality
Agreement before entering the Protective Order, the Parties agree to use their reasonable efforts to
make such modifications to accomplish the entry of the Protective Order. This Stipulated
14272541 14023-004 9
STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDER2 ON DA HW BR YW NY
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Confidentiality Agreement and Protective Order shall not prevent any Party from applying to the
Court for relief therefrom, or from applying to the Court for additional protective orders.
27. Nothing contained in this Stipulated Confidentiality Agreement and Protective
Order shall be construed to affect in any way the admissibility of any document, testimony, or
other evidence at trial.
IT 1S SO STIPULATED.
Respectfully submitted,
Dated: 2-6 -98 [6 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
By:
Bruce Scheidt
Attorneys for Plaintiff
GOLDEN PACIFIC BANK, N.A.
Dated: February 8, 2016 WEBB LEGAL GROUP
By:
Wiffam 1. Webb
Attorncys for Defendants
BILLFLOAT, INC., RYAN GILBERT, and
SEAN O'MALLEY
ORDER
Based on the foregoing stipulation of the parties, and good cause appearing therefore,
IT IS SO ORDERED.
Dated: a\ Na \ 1% VIN.
JUDGE OF THE SUPERIOR COURT
HAROLD KAHN
1427254.) 14023-004 10.
STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED} PROTECTIVE ORDEREXHIBIT A
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
[print full name], of.
[print address},
declare under penalty of perjury that I have read in its entirety and understand the Stipulated
Confidentiality Agreement and Protective Order issued by the Superior Court of the State of
California, County of San Francisco on [date] in Golden Pacific Bank,
N.A. v. BillFloat, Inc., Sean O'Malley, and Ryan Gilbert, Case No, CGC-16-549804.
1 agree to comply with and to be bound by all the terms of this Stipulated Confidentiality
Agreement and Protective Order, whether or not the Stipulated Confidentiality Agreement and
Protective Order has yet been entered as an Order of the Court. I understand and acknowledge
that failure to so comply could expose me to sanctions and punishment in the nature of contempt.
I solemnly promise that I will not disclose in any manner any information or item that is subject to
this Stipulated Confidentiality Agreement and Protective Order to any person or entity except in
strict compliance with the provisions of the Stipulated Confidentiality Agreement and Protective
Order. | further agree to submit to the jurisdiction of the Superior Court of the State of California,
County of San Francisco for the purpose of enforcing the terms of the Stipulated Confidentiality
Agreement and Protective Order, even if such enforcement proceedings occur after termination of
this action.
Thereby appoint [print full name] of
[print address
& telephone number] as my California agent for service of process in connection with this action
or any proceedings related to enforcement of this Stipulated Confidentiality Agreement and
Protective Order.
Date: City & State where sworn and signed:
Printed name: Signature:
1427254.1 14023-004 1
STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDER
Preview
MIO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Feb-19-2016 3:38 pm Case Number: CGC-16-549804 Filing Date: Feb-19-2016 3:38 Filed by: FELICIA GREEN Image: 05280999 ORDER GOLDEN PACIFIC BANK, N.A. VS. BILLYFLOAT, INC. ET AL 001005280999 Instructions: Please place this sheet on top of the document to be scanned.BR win a Dw 10 I 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 FER 192016 1 San Francisco County Superior Court BRUCE A. SCHEIDT, State Bar No. 155088 FEB 1 9 2016 bscheidt@kmtg.com — CHRISTOPHER ONSTOTT, State Bar No. 225968 CLERK OF THE COURT constott@kmtg.com BY: ERROL C. DAUIS, State Bar No. 279313 Deputy Clerk edauis@kmig.com KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 400 Capitol Mall, 27" Floor Sacramento, California 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 Attorneys for Plaintiff GOLDEN PACIFIC BANK, N.A. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO GOLDEN PACIFIC BANK, N.A., Case No. CGC-16-549804 (Former Sacramento County Superior Court Plaintiff, Case No. 34-2015-00185106) v. STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] HC BILLFLOAT, INC., RYAN GILBERT, SEAN | PROTECTIVE ORDER O'MALLEY, and DOES 1-50, inclusive, Defendants. Action Filed: October 2, 2015 Trial Date: Not Yet Set WHEREAS, Plaintiff GOLDEN PACIFIC BANK, N.A., and Defendants BILLFLOAT, INC., RYAN GILBERT, and SEAN O'MALLEY (collectively, the "Parties") have commenced pretrial discovery in the above-captioned matter; WHEREAS, certain documents that will be produced may contain confidential, private, proprietary, and/or trade secret or other sensitive business information ("Confidential Information"); WHEREAS, the Parties wish to provide a mechanism for the exchange of Confidential Information in a manner that will protect its confidentiality and sensitivity and limit its dissemination; and WHEREAS, Code of Civil Procedure sections 2025.420, 2030.090, and 2031.060 provide for the issuance of protective orders limiting the disclosure of discovered information in 1427254.1 14023-004 1 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDER10 u 12 13 14 15 16 7 18 20 21 22 23 25 26 27 28 appropriate circumstances, and California Rules of Court 2.550, 2.551, 2.585, and 8.46 provide for the lodging and filing under seal of appropriate discovery information; IT IS HEREBY STIPULATED AND AGREED, by and between the Partics, through their respective counsel of record, as follows: 1. This Stipulated Confidentiality Agreement and Protective Order shall govern all documents, things, and information produced or provided by the Parties, non-parties, and their respective representatives in the above-captioned case that are designated "CONFIDENTIAL" pursuant to Paragraph 2 of this Stipulated Confidentiality Agreement and Protective Order, and any copies, summaries, pleadings, transcripts, or other documents containing quotations from or references thereto or information contained therein. 2. The information subject to a "CONFIDENTIAL" designation may include documents, interrogatory answers, responses to requests for admissions, deposition testimony, other materials and information that are requested, produced, provided, served or filed in this action and which contain confidential, private, proprietary, and/or trade secret information of the Parties, their current and former employees, or their customers and/or clients, including information protected by the privacy rights of current and former employees and customers and/or clients, that is protectable under California or other applicable law ("Confidential Information" or “CONFIDENTIAL"). 3. All CONFIDENTIAL designations shall be made based upon a good-faith belief that the material being designated qualifies, by virtue of its confidential, private, proprietary, or competitively sensitive nature, as warranting protection. By designating a document, thing, material, testimony, or other information derived therefrom as CONFIDENTIAL under the terms of this Stipulated Confidentiality Agreement and Protective Order, the Party making the designation is certifying to the Court that there is a good-faith basis for the designation. The Party must take care to designate for protection only those parts of material, documents, items, or oral or written communications that qualify as CONFIDENTIAL. 4. Each page of each document produced pursuant to discovery in this action shall bear a unique identifying BATES number. All materials designated as CONFIDENTIAL pursuant 14272541 14023-004 2 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERiS ~~ nN uM Rw 10 IL 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 to this Stipulated Confidentiality Agreement and Protective Order shall be clearly stamped by the Party or other person making the designation with the following on each page: "CONFIDENTIAL" 5. If a response to an interrogatory or request for admission calls for the disclosure of CONFIDENTIAL information, the responding Party should so designate "CONFIDENTIAL" in Tesponding to the question or request. 6. Any designation of deposition testimony as CONFIDENTIAL shall be made within thirty (30) days after the Parties' and/or deponent’s receipt of a transcript of such proceedings. The designating Party shall advise the court reporter of this Stipulated Confidentiality Agreement and Protective Order and of the fact that testimony and/or exhibits marked at the deposition are CONFIDENTIAL. The court reporter shall mark the cover of the transcript of the deposition with the following: "This transcript contains information designated CONFIDENTIAL pursuant to an Order of the Court under which there are penalties for improper use or disclosure." The court reporter shall also mark each page of the transcript with the following: "CONFIDENTIAL." 7. CONFIDENTIAL materials shall not be copied or reproduced for use in this action or for any other reason except to the extent such copying or reproduction is reasonably necessary to the conduct of this action. All such copies and reproductions shall be subject to the terms of this Stipulated Confidentiality Agreement and Protective Order. If the duplicating process by which copies or reproductions of CONFIDENTIAL materials does not preserve the designation that appears on the documents or other materials, all such copies or reproductions shail be stamped with the following designation: "CONFIDENTIAL." 8. Nothing contained in this Stipulated Confidentiality Agreement and Protective Order shall be construed to constitute a waiver, either in whole or in part, of a Party's right to claim that material not designated as CONFIDENTIAL is in fact CONFIDENTIAL within the terms of this Stipulated Confidentiality Agreement and Protective Order, including documents produced by non-parties, or that the specific information disclosed, any related information, or any information on the same or a related subject matter is CONFIDENTIAL. Subsequent designations shall be accomplished by notifying counsel for all Parties and providing a replacement production 1427254.1 14023-004 3 STIPULATED CONFIDENTIALITY AGREEMENT AND {PROPOSED] PROTECTIVE ORDER.Bw Rw De oC oO IN 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that reflects the CONFIDENTIAL designation. Upon discovery of an inadvertent or unintentional disclosure of CONFIDENTIAL information, counsel for the Parties, should, to the extent possible, cooperate to restore the confidentiality of any CONFIDENTIAL information that was inadvertently or unintentionally disclosed. 9. Any Party which has designated any material as CONFIDENTIAL pursuant to this Stipulated Confidentiality Agreement and Protective Order may consent to the removal of such designation by so notifying counsel for the other Party in writing. 10. Materials designated as CONFIDENTIAL may be used in this action only. All CONFIDENTIAL materials shall not be used for any other purposes, except by the person designating it as such. 11. Materials designated as CONFIDENTIAL shalt not be shown or otherwise disclosed to any person by the receiving Party except to the following persons: a. The Parties and their officers, directors, members, partners, and current employees who are responsible for assisting in the prosecution and/or defense of this action; b. The attorneys of the Parties, including counsel of record, in-house counsel, and other attorneys, paralegals, legal assistants, clerical, secretarial, and other staff employed or retained by the Parties' attorneys; c. Any person who prepared or originated the document, who is indicated on its face as the sender or a recipient of a copy, or who otherwise legitimately received a copy; d. The independent experts or consultants retained or consulted by a Party, and their partners, associates, and stenographic, secretarial, paralegal, clerical, and other employees and/or assistants; e. The Court and related officials involved in this action, including judges, magistrates, commissioners, referees, jurors, court reporters and videographers, and other Court personnel; 14272541 14023-004 4 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERUR ww om NO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f. Mediators and/or other neutrals who are appointed, engaged, or retained by the Court or the Parties; and g. Any person who a Party reasonably and in good faith anticipates to be a witness at a deposition or trial in this action, who has some relationship to the CONFIDENTIAL material, but only to the extent that such disclosure is necessary for the conduct of this litigation and provided that such persons may not retain any CONFIDENTIAL material. 12. Prior to the disclosure of any materials designated as CONFIDENTIAL to any person identified in Paragraphs 11(c), (d), or (g) herein, such person shall be furnished with a copy of this Stipulated Confidentiality Agreement and Protective Order and shall be required to execute the certificate attached as Exhibit A hereto. Counsel for the Party disclosing CONFIDENTIAL materials shall maintain these written certifications, and they shall be available to opposing counsel for inspection and copying within sixty (60) days after termination of this litigation, whether by settlement, judgment, appeal, dismissal, or otherwise upon a showing of good cause. 13. Disclosure of CONFIDENTIAL materials other than in accordance with the terms of this Stipulated Confidentiality Agreement and Protective Order may subject the disclosing person to such sanctions and remedies as the Court may deem appropriate, including without limitation, contempt, injunctive relief, and damages. This Stipulated Confidentiality Agreement and Protective Order is enforceable by injunction and any violation or threatened violation is enforceable by a request for an injunction. 14. In the event that any CONFIDENTIAL material is used in any Court proceeding, the information shal! not lose its confidential status through such use, and the Party using such information shall take all reasonable steps to maintain its confidentiality during such use. 15. The filing and lodging of all CONFIDENTIAL materials shall be governed by California Rules of Court 2.550 and 2.551. The Parties shall file and/or lodge all such CONFIDENTIAL materials in accordance with the foregoing California Rules of Court. The designation "CONFIDENTIAL" shall be stamped on the envelope used to seal such materials and a statement substantially in the following form shall also be printed on the envelope: 14272541 14023-004 5 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERw Cows Dm 10 HW 12 13 14 15 16 7 19 20 21 22 23 24 25 26 27 28 "CONDITIONALLY UNDER SEAL: Golden Pacifie Bank, N.A. v. BillFloat, Inc., et al., San Francisco County Superior Court Case No. CGC-16-549804 (formerly Sacramento County Superior Court Case No. 34-2015-00185106). This filing is subject to a Stipulated Confidentiality Agreement and Protective Order issued by the Court and may not be examined or copied except in compliance with that Order." 16. Pending the determination by the Court of any motion to seal and/or to strike made pursuant to California Rules of Court 2.550 and 2.551 or the provisions of this Stipulated Confidentiality Agreement and Protective Order, any hearing on such motion, or on the underlying motion or other proceeding, shall be conducted in open court, but no Party shall make any reference to the substance of the CONFIDENTIAL material during the hearing in open court. If it is necessary during the hearing for a Party to make reference to the substance of the CONFIDENTIAL material, then, subject to the Court's discretion, that portion of the hearing will take place in the judge's chambers or with the courtroom closed to the public, 17. This Stipulated Confidentiality Agreement and Protective Order shall be without prejudice to the right of any Party or non-party to bring before this Court, a challenge as to whether any particular document or information should or should not be designated as CONFIDENTIAL in accordance with the terms of this Stipulated Confidentiality Agreement and Protective Order. Neither any Party's failure to object to any designation of materials as being CONFIDENTIAL, nor anything contained in this Stipulated Confidentiality Agreement and Protective Order, shall be construed as a waiver of any rights and/or defenses by any Party, including a claim that such materials are not confidential and/or protectable, or construed in any manner as an admission by a Party that the documents and/or materials subsequently designated or labeled by another Party and/or non-party as CONFIDENTIAL in fact contains confidential information. 18. Any Party may challenge the designation of any material as CONFIDENTIAL and request removal of such designation as follows: a. The Party seeking such removal shal! give the Party which designated the materials as CONFIDENTIAL written notice thereof specifying the 1427254.1, 14023-004 6 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERCO WN DH BR YBN A RNR RR NR RK Re eB ee we ee we Be & 8&2 FEBS 8 6 Ba rA ADR SHH =| GS information as to which such removal is sought and the reasons for the request; b, If the Parties cannot reach agreement concerning the matter within a reasonable time after service of the notice, then the Party requesting the removal of the designation for the material as CONFIDENTIAL may file and serve a regularly-noticed motion for an order of this Court directing that the "CONFIDENTIAL" designation shall be removed; and c. Ifsuch a motion is filed, the documents or other materials shall be deemed properly designated as CONFIDENTIAL unless and until the Court rules otherwise. 19. Ia Party or its counsel or expert is served with a subpoena or other process by any court, administrative or legislative body, or any other person or organization which calls for production of materials designated as CONFIDENTIAL that were produced by another Party, then the Party to whom the subpoena or other process is directed shall not, to the extent permitted by applicable law, provide or otherwise disclose such documents or information until ten (10) business days after notifying counsel for the producing Party (by email, facsimile, or FedEx) in writing of all of the following: a, The information and documentation which is requested for production in the subpoena; b. The date on which compliance with the subpoena is requested; c. The location at which compliance with the subpoena is requested; d. The identity of the party serving the subpoena; and e. Thecase name, jurisdiction, index, docket, complaint, charge, civil action, or other identification number or other designation identifying the litigation, administrative proceeding, or other proceeding in which the subpoena has been issued. 20. The Parties agree that the inadvertent production of materials subject to the attorney-client privilege, work product doctrine, and/or any other applicable privilege or 1427254.1 14023-004 7 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERBw bh ww oc wm ID 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 protection ("PROTECTED MATERIAL") shall not constitute a waiver of such privilege and/or protection. Upon receipt of timely written notice from the Party which disclosed it that PROTECTED MATERIAL has inadvertently been disclosed, the Party receiving it shall immediately return all such PROTECTED MATERIAL — including without limitation any and all reproductions of the PROTECTED MATERIAL, and/or documents referencing, summarizing, paraphrasing, or otherwise disclosing the PROTECTED MATERIAL — to the producing Party and shall not in any way rely upon such PROTECTED MATERIAL in connection with this action or otherwise. No use shall be made of such documents during depositions or at trial, nor shall they be disclosed to anyone who was not given access to them prior to the request to return them. The inadvertent production shall not be the basis to support a motion to compel the returned documents. Nothing contained herein is intended to, and/or does, constitute a waiver of any Party's right to challenge any designation of "PROTECTED MATERIAL" and/or move to compel the production of such documents. 21. Nothing in this Stipulated Confidentiality Agreement and Protective Order is intended to and/or does amend, relive, and/or affect in any way any Party's or non-party's pre- existing duties to maintain the confidentiality of information that is presently or hereafter in its possession, 22. Nothing in this Stipulated Confidentiality Agreement and Protective Order shall prevent any Party from disclosing its own material designated CONFIDENTIAL and/or PROTECTED MATERIAL in any manner that it considers appropriate. 23. The terms of this Stipulated Confidentiality Agreement and Protective Order shall survive and remain in effect after the termination of this litigation, and the Court shall retain jurisdiction following termination of this litigation for the purpose enforcing any provisions of this Stipulated Confidentiality Agreement and Protective Order. The Parties shall take such measures as are necessary and appropriate to prevent the public discourse of CONFIDENTIAL materials, through inadvertence or otherwise, after the conclusion of this litigation, All Parties and other persons who receive CONFIDENTIAL materials shall be under a continuing duty not to disclose such information obtained in the course of this litigation, and this duty shall continue in full force 1427254.1 14023-004 8 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDERYA WH Bw DD oo 10 ie 12 13 14 15 16 17 18 19 20 21 2 2B 24 25 26 27 28 and effect after the completion of this litigation. 24. Except as otherwise may be agreed to by the Parties, but not later than sixty (60) days after the termination of this litigation, whether by settlement, judgment, appeal, dismissal, or otherwise, all copies of any information designated as CONFIDENTIAL shall be returned to the producing Party or destroyed, except for material reasonably considered by counsel to be their respective work product. Counsel shall certify in writing to opposing counsel that all such information has been returned to the producing Party or destroyed. Notwithstanding this obligation, counsel of record for each Party may retain one copy of any designated materials and of any pleadings filed under seal herein, and one copy of each transcript containing designated material for their files. 25. To facilitate the advancement of discovery in this action, the Parties expressly agree that either Party may produce its trade secret disclosure pursuant to Code of Civil Procedure section 2019.210 ("Trade Secret Disclosure") prior to the Court's formal entry of the Protective Order. The Parties expressly agree that such production of the Trade Secret Disclosure shall be designated Confidential and will be protected from public disclosure pursuant to the terms of this Stipulated Confidentiality Agreement and that each Party will be bound to this Agreement's terms with respect to the production specified in this paragraph, regardless of whether the Court enters or rejects the requested Protective Order, in whole or in part. Production of a Trade Secret Disclosure referenced in this paragraph is not intended to be construed to constitute a waiver of the alleged trade secrets set forth in the Trade Secret Disclosure. The Parties further agree that neither Party will use the production of the above referenced Trade Secret Disclosure prior to the Court's entry (or even rejection) of the Protective Order to argue that the producing Party has waived its alleged trade secrets set forth in the Trade Secret Disclosure. 26. This Stipulated Confidentiality Agreement and Protective Order may be supplemented and/or amended by the Parties upon an appropriate showing to the Court or on the Court's own motion. Should the Court require modifications to this Stipulated Confidentiality Agreement before entering the Protective Order, the Parties agree to use their reasonable efforts to make such modifications to accomplish the entry of the Protective Order. This Stipulated 14272541 14023-004 9 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDER2 ON DA HW BR YW NY S Confidentiality Agreement and Protective Order shall not prevent any Party from applying to the Court for relief therefrom, or from applying to the Court for additional protective orders. 27. Nothing contained in this Stipulated Confidentiality Agreement and Protective Order shall be construed to affect in any way the admissibility of any document, testimony, or other evidence at trial. IT 1S SO STIPULATED. Respectfully submitted, Dated: 2-6 -98 [6 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation By: Bruce Scheidt Attorneys for Plaintiff GOLDEN PACIFIC BANK, N.A. Dated: February 8, 2016 WEBB LEGAL GROUP By: Wiffam 1. Webb Attorncys for Defendants BILLFLOAT, INC., RYAN GILBERT, and SEAN O'MALLEY ORDER Based on the foregoing stipulation of the parties, and good cause appearing therefore, IT IS SO ORDERED. Dated: a\ Na \ 1% VIN. JUDGE OF THE SUPERIOR COURT HAROLD KAHN 1427254.) 14023-004 10. STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED} PROTECTIVE ORDEREXHIBIT A ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND [print full name], of. [print address}, declare under penalty of perjury that I have read in its entirety and understand the Stipulated Confidentiality Agreement and Protective Order issued by the Superior Court of the State of California, County of San Francisco on [date] in Golden Pacific Bank, N.A. v. BillFloat, Inc., Sean O'Malley, and Ryan Gilbert, Case No, CGC-16-549804. 1 agree to comply with and to be bound by all the terms of this Stipulated Confidentiality Agreement and Protective Order, whether or not the Stipulated Confidentiality Agreement and Protective Order has yet been entered as an Order of the Court. I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Confidentiality Agreement and Protective Order to any person or entity except in strict compliance with the provisions of the Stipulated Confidentiality Agreement and Protective Order. | further agree to submit to the jurisdiction of the Superior Court of the State of California, County of San Francisco for the purpose of enforcing the terms of the Stipulated Confidentiality Agreement and Protective Order, even if such enforcement proceedings occur after termination of this action. Thereby appoint [print full name] of [print address & telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Confidentiality Agreement and Protective Order. Date: City & State where sworn and signed: Printed name: Signature: 1427254.1 14023-004 1 STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] PROTECTIVE ORDER