Preview
Mark Punzalan (State Bar No. 247599)
1 Email: mark@chanpunzalan.com
2 Nicole Daryanani (State Bar No. 328068)
ELECTRONICALLY
Email: nicole@chanpunzalan.com
3 CHAN PUNZALAN LLP F I L E D
Superior Court of California,
22 Battery Street, Suite 401 County of San Francisco
4 San Francisco, CA 94111
08/14/2020
Telephone: 650.362.4150 Clerk of the Court
5 BY: EDNALEEN ALEGRE
Deputy Clerk
6
Counsel for Plaintiffs
7 Benjamin McCann and Erik Buchanan
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10
BENJAMIN MCCANN and ERIK Case No. CGC-19-581012
11 BUCHANAN, Derivatively on Behalf of
Nominal Defendant, MODERN DISCOVERY MOTION SPECIALLY
12 HEALTHCARE, INC., a Delaware SET BY JUDGE PRO TEM NOAH
corporation, LEBOWITZ: DECLARATION OF
13 MARK PUNZALAN IN SUPPORT OF
Plaintiff, PLAINTIFFS’ MOTION TO
14 v. RECONSIDER ORDER DENYING
PLAINTIFF’S MOTION TO COMPEL
15 ALYSON FRIEDENSOHN, RESPONSES TO DISCOVERY
PURSUANT TO CCP § 1008
16 Defendant,
Date: September 10, 2020
17 and Time: 1:30 p.m.
Dept: Discovery, 302
18 MODERN HEALTHCARE, INC. a
Delaware corporation, Complaint Filed: November 25, 2019
19 Trial Date: None Set
Nominal Defendant, Judge: Hon. Garrett L. Wong
20
and
21
DOES 1 through 20, inclusive,
22
Defendants.
23
24
25
26
27
28
DECLARATION OF MARK PUNZALAN IN SUPPORT OF PLAINTIFFS’ MOTION TO RECONSIDER
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY PURSUANT TO
CCP § 1008
1 I, Mark Punzalan, declare as follows:
2 1. I am an attorney licensed to practice before all courts of the State of California. I
3 represent Plaintiffs Benjamin McCann and Erik Buchanan (“Plaintiffs”) in the above captioned
4 matter. This declaration is based on my own personal knowledge and a review of my firm’s
5 records, and if called to testify, I could and would do so competently as to the matters set forth
6 herein.
7 2. Attached hereto as Exhibit A is a true and correct copy of Judge Pro Tem Noah
8 D. Lebowitz’s Order denying Plaintiff’s Motion to Compel Further Responses to Special
9 Interrogatories and Inspection Demands and Request for Monetary Sanctions entered on August 3,
10 2020.
11 3. Attached hereto as Exhibit B is a true and correct copy of the Declaration of
12 Nicole Daryanani In Support of Plaintiffs Benjamin McCann And Erik Buchanan’s Motion to
13 Compel Further Responses to Special Interrogatories and Inspection Demands and Request for
14 Monetary Sanctions, filed on July 8, 2020.
15 4. On August 3, 2020, my firm electronically filed and served the Second
16 Amended Complaint in this action. Attached hereto as Exhibit C is a true and correct copy of the
17 File & ServeXpress Transaction Receipt for the filing.
18 I declare under penalty of perjury under the laws of California that the foregoing is true
19 and correct. Executed this 14th day of August 2020 in San Mateo, California.
20
21
22 ___________________________________
Mark Punzalan
23
24
25
26
27
28 1
DECLARATION OF MARK PUNZALAN IN SUPPORT OF PLAINTIFFS’ MOTION TO RECONSIDER
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY PURSUANT TO
CCP § 1008
EXHIBIT A
EXHIBIT B
Mark Punzalan (State Bar No. 247599)
1 Email: mark@chanpunzalan.com
2 Nicole Daryanani (State Bar No. 328068)
nicole@chanpunzalan.com
3 CHAN PUNZALAN LLP
2000 Alameda de las Pulgas, Suite 154
4 San Mateo, CA 94403
Telephone: 650.362.4150
5
Email: mark@chanpunzalan.com
6
Counsel for Plaintiffs
7 Benjamin McCann and Erik Buchanan
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10
BENJAMIN MCCANN and ERIK Case No. CGC-19-581012
11 BUCHANAN, Derivatively on Behalf of
Nominal Defendant, MODERN DISCOVERY MOTION:
12 HEALTHCARE, INC., a Delaware DECLARATION OF NICOLE
corporation, DARYANANI IN SUPPORT OF
13 PLAINTIFFS BENJAMIN MCCANN
Plaintiff, AND ERIK BUCHANAN S MOTION TO
14 v. COMPEL FURTHER RESPONSES TO
SPECIAL INTERROGATORIES AND
15 ALYSON FRIEDENSOHN, INSPECTION DEMANDS AND
REQUEST FOR MONETARY
16 Defendant, SANCTIONS
17 and Date: 3, 2020
Time: 9:00 a.m.
18 MODERN HEALTHCARE, INC. a Dept: Discovery
Delaware corporation,
19 Complaint Filed: November 25, 2019
Nominal Defendant, Trial Date: None Set
20 Judge: Hon. Garrett L. Wong
and
21
DOES 1 through 20, inclusive,
22
Defendants.
23
24
25
26
27
28
DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND
ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES
AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS
1
I, Nicole Daryanani, declare as follows:
2
1. I am an attorney licensed to practice before all courts of the State of California. I
3
represent Plaintiffs Benjamin McCann and Erik Buchanan (“Plaintiffs”) in the above captioned
4
matter. This declaration is based on my own personal knowledge and a review of my firm’s
5
records, and if called to testify, I could and would do so competently as to the matters set forth
6
herein.
7
2. My office served Plaintiffs’ first set of Requests for Production of Documents,
8
Requests for Admission, Form Interrogatories and Special Interrogatories (Discovery Requests)
9
on Defendant Alyson Friedensohn (“Defendant”) on February 21, 2020. Attached as Exhibit A
10
are true and correct copies of the Discovery Requests.
11
3. On March 26, 2020, the parties signed a stipulated protective order at the
12
request of Defendant, to address and confidentiality concerns that may arise in responding to the
13
Discovery Requests. Attached as Exhibit B is a true and correct copy of the stipulated
14
protective order.
15
4. Defendant served responses to the Discovery Requests on April 16, 2020.
16
Attached as Exhibit C are true and correct copies of Defendant’s responses to the Discovery
17
Requests.
18
5. Defendant’s responses are inadequate. Defendant responded to just one of the
19
six special interrogatories propounded by Plaintiffs. For the other five requests, she listed only
20
boilerplate objections. Defendant responded in part to exactly four out of the sixty-six requests
21
for production of documents, and again recited the same boilerplate objections for the other
22
sixty-two requests. Defendant had not produced any documents at this point.
23
6. On May 5, 2020, I sent Defendant’s counsel Rebecca Stuart a meet and confer
24
letter, outlining the deficiencies in Defendant’s responses, unilaterally allowing seven additional
25
days to provide further substantive responses, and an additional 14 days to produce documents.
26
Attached as Exhibit D is a true and correct copy of the May 5, 2020 letter.
27
28 2
DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND
ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES
AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS
7. On May 13, 2020, Defendant’s counsel sent me a meet and confer letter,
1
denying any deficiencies in Defendant’s responses, and instead tried to shift the burden back to
2
Plaintiffs to amend their requests, indicating that she is “willing to provide specific responses” if
3
any when that happens. Attached as Exhibit E is a true and correct copy of the May 13, 2020
4
letter.
5
8. On May 26, 2020, Defendant’s counsel and I attempted to resolve these
6
discovery issues over the phone. During that call, Defendant’s counsel informed me that she was
7
going to produce documents related to Modern Health’s Series A financing round, since those
8
documents were on Wilson Sonsini’s server. For all other documents, Defendant’s counsel
9
indicated she was having issues producing them, because they are on Modern Health’s server
10
that is not remotely accessible to her. I questioned this statement and urged her to keep trying, as
11
Modern Health is a venture-backed tech startup, and Wilson Sonsini has been a premiere tech
12
law firm for years now. Defendant’s counsel agreed to keep trying.
13
9. On May 29, 2020, Defendant, through counsel, produced the Series A
14
documents only.
15
10. Still having not received supplemental responses and no other documents, on
16
June 11, 2020, I sent another meet and confer letter in the hopes of resolution. Attached as
17
Exhibit F is a true and correct copy of the June 11, 2020 letter.
18
11. Defendant’s counsel responded on June 26, 2020, still refusing to supplement
19
Defendant’s responses. Attached as Exhibit G is a true and correct copy of the June 26, 2020
20
letter.
21
12. Defendant’s counsel and I had another call scheduled for July 6, 2020 as a
22
last-ditch effort to resolve the discovery issues, but Defendant’s counsel cancelled that call.
23
13. It is now July 8, 2020. Defendant has failed to produce any more documents,
24
and Defendant’s responses to Plaintiff’s Special Interrogatories and requests for production of
25
documents remain deficient.
26
14. Defendant’s failure to provide adequate responses to the Discovery Requests
27
was without substantial justification and constituted a misuse of discovery under Code of Civil
28 3
DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND
ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES
AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS
Procedure CCP § 2023.010. Because of this unreasonable failure, Plaintiff has incurred and will
1
incur fees, reasonable costs, and attorneys’ fees for bringing this motion in the amount of
2
$21,820.00 consisting of the following:
3
- Motion fee: $60
4
- Attorneys’ fees to date- to meet and confer, to prepare and file motion: $19,945.00
5
- Reply and hearing projected attorneys’ fees: $1,875 (5 hours x my billing rate of
6
7 $375/hr.)
8 I declare under penalty of perjury under the laws of California that the foregoing is true
9 and correct. Executed this 8th day of July 2020 in Fremont, California.
10
11
12
13 ___________________________________
Nicole Daryanani
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 4
DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND
ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES
AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS
EXHIBIT A
EXHIBIT B
1 DAVID J. BERGER, State Bar No. 147645
REBECCA L. STUART, State Bar No. 254348
2 WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
3 650 Page Mill Road
Palo Alto, CA 94304-1050
4 Telephone: (650) 493-9300
Facsimile: (650) 565-5100
5 Email: dberger@wsgr.com; rstuart@wsgr.com
6 Attorneys for Defendant ALYSON
FRIEDENSOHN, and Nominal Defendant,
7 MODERN HEALTHCARE INC.
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 BENJAMIN McCANN and ERIK BUCHANAN, ) CASE NO.: CGC-19-581012
Derivatively on Behalf of Nominal Defendant, )
11 MODERN HEALTHCARE, INC., a Delaware )
corporation, ) STIPULATION AND [PROPOSED]
12 ) CONFIDENTIALITY AGREEMENT
Plaintiff, ) AND ORDER
13 )
v. )
14 )
ALYSON FRIEDENSOHN, ) Presiding Judge: Garrett L. Wong
15 )
Defendant, )
16 ) Complaint Filed: November 25, 2019
and ) Trial Date: None
17 )
MODERN HEALTHCARE, INC., a Delaware )
18 corporation, )
)
19 )
Nominal Defendant, )
20 )
and )
21 )
and DOES 1 through 20, inclusive. )
22 )
23
24
25
26
27
28 ///
11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 In order to protect the confidentiality of confidential information obtained by the parties
2 in connection with this case, all parties by and through their respective undersigned counsel,
3 hereby stipulate and agree as follows:
4 Part One: Use of Confidential Materials in Discovery or Settlement Discussions
5 1. Any party or non-party may designate as “Confidential Information” (by stamping
6 the relevant page or as otherwise set forth herein) any document or response to discovery or in
7 settlement discussions which that party or non-party considers in good faith to contain
8 information involving trade secrets, or confidential business or financial information, subject to
9 Rules 2.550, 2.551, 2.580, 2.585, 8.46, and 8.490 of the California Rules of Court, or under other
10 provisions of California law. Any party or non-party may designate such information as
11 “Confidential – Attorney’s Eyes Only” if it believes in good faith that such information is highly
12 confidential, non-public, personal or proprietary business information, the disclosure of which
13 would be especially detrimental or harmful to the producing party if disclosed. Where a
14 document or response consists of more than one page, the first page and each page on which
15 information designated as “Confidential Information” or “Confidential – Attorney’s Eyes Only”
16 appears shall be so designated.
17 2. A party or non-party may designate information disclosed during a deposition or
18 in response to written discovery or in settlement discussions as “Confidential Information” or as
19 “Confidential – Attorney’s Eyes Only” by so indicating in said responses or on the record at the
20 deposition and requesting the preparation of a separate transcript of such material. In addition, a
21 party or non-party may designate in writing, within twenty (20) days after receipt of said
22 responses or of the deposition transcript for which the designation is proposed, that specific
23 pages of the transcript and/or specific responses be treated as “Confidential Information” or
24 “Confidential – Attorney’s Eyes Only.” Any other party may object to such proposal, in writing
25 or on the record. Upon such objection, the parties shall follow the procedures described in
26 paragraph 8 below. After any designation made according to the procedure set forth in this
27 paragraph, the designated documents or information shall be treated according to the designation
28 until the matter is resolved according to the procedures described in paragraph 8 below, and
-2- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 counsel for all parties shall be responsible for marking all previously unmarked copies of the
2 designated material in their possession or control with the specified designation.
3 3. All information designated “Confidential Information” or “Confidential –
4 Attorney’s Eyes Only” produced or exchanged in the course of this case (not including
5 information that is publicly available) shall be used by the party or parties to whom the
6 information is produced solely for the purpose of this case.
7 4. Except with the prior written consent of the other parties, or upon prior order of
8 this Court obtained upon notice to opposing counsel,
9 (a) “Confidential Information” shall not be disclosed to any person other than:
10 (1) outside counsel for the respective parties to this litigation,
11 including co-counsel retained for this litigation,
12 (2) employees of such counsel,
13 (3) in-house counsel for the parties,
14 (4) individual parties or officers or employees of a party, to the extent
15 deemed necessary by counsel for the prosecution or defense of this litigation,
16 (5) consultants or expert witnesses retained for the prosecution or
17 defense of this litigation, provided that each person shall execute a copy of the Certification
18 annexed to this Order (which shall be retained by counsel to the party so disclosing the
19 Confidential Information and made available for inspection by opposing counsel during the
20 pendency or after the termination of the action only upon good cause shown and upon order of
21 the Court) before being shown or given any Confidential Information, and provided that if the
22 party chooses a consultant or expert employed by the defendant or one of its competitors (as
23 listed on Appendix A), the party shall notify the opposing party, or designating non-party, before
24 disclosing any Confidential Information to that individual and shall give the opposing party an
25 opportunity to move for a protective order preventing or limiting such disclosure;
26 (6) any authors or recipients of the Confidential Information;
27 (7) the Court, Court personnel, and court reporters; and
28
-3- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 (8) witnesses (other than persons described in paragraph 4(a)(6)). A
2 witness shall sign the Certification before being shown a confidential document. Confidential
3 Information may be disclosed to a witness who will not sign the Certification only in a
4 deposition in which the party who designated the Confidential Information is represented or has
5 been given notice that Confidential Information produced by the party may be used. At the
6 request of any party, the portion of the deposition transcript involving the Confidential
7 Information shall be designated “Confidential Information” pursuant to paragraph 2 above.
8 Witnesses shown Confidential Information shall not be allowed to retain copies.
9 (b) “Confidential – Attorney’s Eyes Only” information may be disclosed only
10 to persons listed in Paragraphs 4(a)(1), 4(a)(2), 4(a)(5), 4(a)(6), and 4(a)(7). “Confidential –
11 Attorney’s Eyes Only” information may be shown to persons listed in Paragraph 4(a)(8) if the
12 witness is an employee of the party who produced the information designated as “Confidential –
13 Attorney’s Eyes Only,” if the witness is identified on the face of the document as a previous
14 recipient, or if the party who produced the information designated as “Confidential – Attorney’s
15 Eyes Only” consents before such designated information is disclosed to the witness.
16 5. Any persons receiving information designated “Confidentia1 Information” or
17 “Confidential – Attorney’s Eyes Only” shall not reveal or discuss such information to or with
18 any person who is not entitled to receive such information, except as set forth herein.
19 6. In connection with discovery proceedings as to which a party submits information
20 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only,” all documents
21 and chamber copies containing information designated “Confidential Information” or
22 “Confidential – Attorney’s Eyes Only” which are submitted to the Court shall be filed with the
23 Court in sealed envelopes or other appropriate sealed containers. On the outside of the
24 envelopes, a copy of the first page of the document shall be attached. If information designated
25 “Confidential Information” or “Confidential – Attorney’s Eyes Only” is included in the first page
26 attached to the outside of the envelopes, it may be deleted from the outside copy. The word
27 “CONFIDENTIAL” shall be stamped on the envelope and a statement substantially in the
28 following form shall also be printed on the envelope:
-4- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 “This envelope is sealed pursuant to Order of the Court, contains Confidential
2 Information and is not to be opened or the contents revealed, except by Order of the Court or
3 agreement by the parties.”
4 7. A party may designate as “Confidential Information” or “Confidential –
5 Attorney’s Eyes Only” documents or discovery materials produced by a non-party by providing
6 written notice to all parties of the relevant document numbers or other identification within thirty
7 (30) days after receiving such documents or discovery materials.
8 8. If a party contends that any material is not entitled to confidential treatment, such
9 party may at any time give written notice to the party or non-party who designated the material.
10 The party or non-party who designated the material shall have twenty-five (25) days from the
11 receipt of such written notice to apply to the Court for an order designating the material as
12 confidential. The party or non-party seeking the order has the burden of establishing that the
13 document is entitled to protection.
14 9. Notwithstanding any challenge to the designation of material as “Confidential
15 Information” or “Confidential – Attorney’s Eyes Only,” all documents shall be treated as
16 designated and shall be subject to the provisions hereof unless and until one of the following
17 occurs:
18 (a) the party or non-party who designates the material as “Confidential
19 Information” or “Confidential – Attorney’s Eyes Only” withdraws such designation in
20 writing; or
21 (b) the party or non-party who designates the material as “Confidential
22 Information” or “Confidential – Attorney’s Eyes Only” fails to apply to the Court for an
23 order designating the material confidential within the time period specified above after
24 receipt of a written challenge to such designation; or
25 (c) the Court rules the material is not “Confidential Information” or
26 “Confidential – Attorney’s Eyes Only.”
27 10. All provisions of this Order restricting the communication or use information
28 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only” shall continue
-5- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 to be binding after the conclusion of the action, unless otherwise agreed or ordered. Upon
2 conclusion of the litigation, a party, counsel, expert and/or consultant in possession of
3 information provided to them and designated “Confidential Information” or “Confidential –
4 Attorney’s Eyes Only,” other than that which is contained in pleadings, correspondence, and
5 deposition transcripts, shall either (a) return such documents no later than thirty (30) days after
6 conclusion of this action to counsel for the party or non-party who provided such information, or
7 (b) destroy such documents within the time period upon consent of the party who provided the
8 information and certify in writing within thirty (30) days that the documents have been
9 destroyed.
10 11. Nothing herein shall be deemed to waive any applicable privilege or work product
11 protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material
12 protected by privilege or work product protection. Any witness or other person, firm
13 or entity from which discovery is sought may be informed of and may obtain the protection of
14 this Order by written advice to the parties’ respective counselor by oral advice at the time of any
15 deposition or similar proceeding.
16 Part Two: Use of Confidential Materials in Court
17 The following provisions govern the treatment of information designated “Confidential
18 Information” or “Confidential – Attorney’s Eyes Only” used at trial or submitted as a basis for
19 adjudication of matters other than discovery motions or proceedings.
20 These provisions are subject to Rules 8.160, 8.490, 2.550, 2.551, 2.580, and 2.585 of the
21 California Rules of Court and must be construed in light of those Rules.
22 12. A party that files with the Court, or seeks to use at trial, materials designated as
23 “Confidential Information” or “Confidential – Attorney’s Eyes Only,” and, who seeks to have
24 the record containing such information sealed, shall submit to the Court a motion to seal,
25 pursuant to California Rules of Court 2.551.
26 13. A party that files with the Court, or seeks to use at trial, materials designated as
27 “Confidential Information” or “Confidential – Attorney’s Eyes Only” by anyone other than
28
-6- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 itself, and who does not seek to have the record containing such information sealed, shall comply
2 with either of the following requirements:
3 (a) At least ten (10) business days prior to the filing or use of information
4 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only,” the submitting
5 party shall give notice to all parties, and to any non-party that designated the materials as
6 “Confidential Information” or “Confidential – Attorney’s Eyes Only” pursuant to this Order, of
7 the submitting party’s intention to file or use information designated “Confidential Information”
8 or “Confidential – Attorney’s Eyes Only,” including specific identification of the information
9 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only.” Any affected
10 party or non-party may then file a motion to seal, pursuant to California Rules of Court 2.551; or
11 (b) At the time of filing or desiring to use information designated
12 “Confidential Information” or “Confidential – Attorney’s Eyes Only,” the submitting party shall
13 submit the materials pursuant to the lodging-under-seal provision of California Rule of Court
14 2.551(d). Any affected party or non-party may then file a motion to seal pursuant to the
15 California Rule of Court 2.551 (b), within ten (10) business days after such lodging. Documents
16 lodged pursuant to California Rule of Court 2.551(d) shall bear a legend stating that such
17 materials shall be unsealed upon the expiration of ten (10) business days, absent the filing of a
18 motion to seal pursuant to Rule 2.551 (b) or Court Order.
19 (c) Notwithstanding the above, plaintiffs shall be deemed to have given notice
20 of their intent to submit information designated as “Confidential Information” or “Confidential –
21 Attorney’s Eyes Only” to the Court in materials filed with the Court in support of plaintiffs’
22 motion for preliminary injunction. This provision does not relieve plaintiffs of their obligation to
23 comply with Paragraph 13(b). The parties shall confer in good faith and if necessary seek the aid
24 of the Court should any party wish to disclose the contents of information designated as
25 “Confidential Information” or “Confidential – Attorney’s Eyes Only” during any court
26 proceeding.
27 14. In connection with a request to have materials sealed pursuant to Section 12 or
28 Section 13, the moving party’s declaration pursuant to California Rule of Court 2.551(b)(l) shall
-7- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 * * *
2 IT IS SO ORDERED.
3
4 Dated: _________ ___, 2020
5
6 JUDGE OF THE SUPERIOR COURT
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-9- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 CERTIFICATION
2 I hereby certify my understanding that information designated as “Confidential
3 Information” and/or “Confidential – Attorney’s Eyes Only” is being provided to me pursuant to
4 the terms and restrictions of the Proposed Confidentiality Agreement and Order dated
5 ____________, 2020, in McCann, et al, v. Friedensohn, et al., Case No. CGC-19-58-1012. I
6 have been given a copy of that Order and read it.
7 I agree to be bound by the Order. I will not reveal the information designated
8 “Confidential Information” or “Confidential – Attorney’s Eyes Only” to anyone, except as
9 allowed by the Order. I will maintain all such information designated “Confidential
10 Information” or “Confidential – Attorney’s Eyes Only” – including copies, notes, or other
11 transcriptions made therefrom – in a secure manner to prevent unauthorized access to it. No later
12 than thirty (30) days after the conclusion of this action, I will return the information designated
13 “Confidential Information” or “Confidential – Attorney’s Eyes Only” – including copies, notes,
14 or other transcriptions made therefrom – to the counsel who provided me with the information
15 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only.” I hereby
16 consent to the jurisdiction of the California Superior Court, County of San Francisco, for the
17 purpose of enforcing the Confidentiality Agreement and Order.
18 I declare under penalty of perjury that the foregoing is true and correct and that this
19 certificate is executed this _____ day of __________, at ____________________.
20
By:
21
Address:
22
23
Phone:
24
25
26
27
28
-10- 11436110_1.docx
STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER
CASE NO. CGC-19-581012
1 DAVID J. BERGER, State Bar No. 147645
REBECCA L. STUART, State Bar No. 254348
2 WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
3 650 Page Mill Road
Palo Alto, CA 94304-1050
4 Telephone: (650) 493-9300
Facsimile: (650) 565-5100
5 Email: dberger@wsgr.com; rstuart@wsgr.com
6 Attorneys for Defendant ALYSON
Preview
Mark Punzalan (State Bar No. 247599) 1 Email: mark@chanpunzalan.com 2 Nicole Daryanani (State Bar No. 328068) ELECTRONICALLY Email: nicole@chanpunzalan.com 3 CHAN PUNZALAN LLP F I L E D Superior Court of California, 22 Battery Street, Suite 401 County of San Francisco 4 San Francisco, CA 94111 08/14/2020 Telephone: 650.362.4150 Clerk of the Court 5 BY: EDNALEEN ALEGRE Deputy Clerk 6 Counsel for Plaintiffs 7 Benjamin McCann and Erik Buchanan 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 BENJAMIN MCCANN and ERIK Case No. CGC-19-581012 11 BUCHANAN, Derivatively on Behalf of Nominal Defendant, MODERN DISCOVERY MOTION SPECIALLY 12 HEALTHCARE, INC., a Delaware SET BY JUDGE PRO TEM NOAH corporation, LEBOWITZ: DECLARATION OF 13 MARK PUNZALAN IN SUPPORT OF Plaintiff, PLAINTIFFS’ MOTION TO 14 v. RECONSIDER ORDER DENYING PLAINTIFF’S MOTION TO COMPEL 15 ALYSON FRIEDENSOHN, RESPONSES TO DISCOVERY PURSUANT TO CCP § 1008 16 Defendant, Date: September 10, 2020 17 and Time: 1:30 p.m. Dept: Discovery, 302 18 MODERN HEALTHCARE, INC. a Delaware corporation, Complaint Filed: November 25, 2019 19 Trial Date: None Set Nominal Defendant, Judge: Hon. Garrett L. Wong 20 and 21 DOES 1 through 20, inclusive, 22 Defendants. 23 24 25 26 27 28 DECLARATION OF MARK PUNZALAN IN SUPPORT OF PLAINTIFFS’ MOTION TO RECONSIDER ORDER DENYING PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY PURSUANT TO CCP § 1008 1 I, Mark Punzalan, declare as follows: 2 1. I am an attorney licensed to practice before all courts of the State of California. I 3 represent Plaintiffs Benjamin McCann and Erik Buchanan (“Plaintiffs”) in the above captioned 4 matter. This declaration is based on my own personal knowledge and a review of my firm’s 5 records, and if called to testify, I could and would do so competently as to the matters set forth 6 herein. 7 2. Attached hereto as Exhibit A is a true and correct copy of Judge Pro Tem Noah 8 D. Lebowitz’s Order denying Plaintiff’s Motion to Compel Further Responses to Special 9 Interrogatories and Inspection Demands and Request for Monetary Sanctions entered on August 3, 10 2020. 11 3. Attached hereto as Exhibit B is a true and correct copy of the Declaration of 12 Nicole Daryanani In Support of Plaintiffs Benjamin McCann And Erik Buchanan’s Motion to 13 Compel Further Responses to Special Interrogatories and Inspection Demands and Request for 14 Monetary Sanctions, filed on July 8, 2020. 15 4. On August 3, 2020, my firm electronically filed and served the Second 16 Amended Complaint in this action. Attached hereto as Exhibit C is a true and correct copy of the 17 File & ServeXpress Transaction Receipt for the filing. 18 I declare under penalty of perjury under the laws of California that the foregoing is true 19 and correct. Executed this 14th day of August 2020 in San Mateo, California. 20 21 22 ___________________________________ Mark Punzalan 23 24 25 26 27 28 1 DECLARATION OF MARK PUNZALAN IN SUPPORT OF PLAINTIFFS’ MOTION TO RECONSIDER ORDER DENYING PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY PURSUANT TO CCP § 1008 EXHIBIT A EXHIBIT B Mark Punzalan (State Bar No. 247599) 1 Email: mark@chanpunzalan.com 2 Nicole Daryanani (State Bar No. 328068) nicole@chanpunzalan.com 3 CHAN PUNZALAN LLP 2000 Alameda de las Pulgas, Suite 154 4 San Mateo, CA 94403 Telephone: 650.362.4150 5 Email: mark@chanpunzalan.com 6 Counsel for Plaintiffs 7 Benjamin McCann and Erik Buchanan 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 BENJAMIN MCCANN and ERIK Case No. CGC-19-581012 11 BUCHANAN, Derivatively on Behalf of Nominal Defendant, MODERN DISCOVERY MOTION: 12 HEALTHCARE, INC., a Delaware DECLARATION OF NICOLE corporation, DARYANANI IN SUPPORT OF 13 PLAINTIFFS BENJAMIN MCCANN Plaintiff, AND ERIK BUCHANAN S MOTION TO 14 v. COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND 15 ALYSON FRIEDENSOHN, INSPECTION DEMANDS AND REQUEST FOR MONETARY 16 Defendant, SANCTIONS 17 and Date: 3, 2020 Time: 9:00 a.m. 18 MODERN HEALTHCARE, INC. a Dept: Discovery Delaware corporation, 19 Complaint Filed: November 25, 2019 Nominal Defendant, Trial Date: None Set 20 Judge: Hon. Garrett L. Wong and 21 DOES 1 through 20, inclusive, 22 Defendants. 23 24 25 26 27 28 DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS 1 I, Nicole Daryanani, declare as follows: 2 1. I am an attorney licensed to practice before all courts of the State of California. I 3 represent Plaintiffs Benjamin McCann and Erik Buchanan (“Plaintiffs”) in the above captioned 4 matter. This declaration is based on my own personal knowledge and a review of my firm’s 5 records, and if called to testify, I could and would do so competently as to the matters set forth 6 herein. 7 2. My office served Plaintiffs’ first set of Requests for Production of Documents, 8 Requests for Admission, Form Interrogatories and Special Interrogatories (Discovery Requests) 9 on Defendant Alyson Friedensohn (“Defendant”) on February 21, 2020. Attached as Exhibit A 10 are true and correct copies of the Discovery Requests. 11 3. On March 26, 2020, the parties signed a stipulated protective order at the 12 request of Defendant, to address and confidentiality concerns that may arise in responding to the 13 Discovery Requests. Attached as Exhibit B is a true and correct copy of the stipulated 14 protective order. 15 4. Defendant served responses to the Discovery Requests on April 16, 2020. 16 Attached as Exhibit C are true and correct copies of Defendant’s responses to the Discovery 17 Requests. 18 5. Defendant’s responses are inadequate. Defendant responded to just one of the 19 six special interrogatories propounded by Plaintiffs. For the other five requests, she listed only 20 boilerplate objections. Defendant responded in part to exactly four out of the sixty-six requests 21 for production of documents, and again recited the same boilerplate objections for the other 22 sixty-two requests. Defendant had not produced any documents at this point. 23 6. On May 5, 2020, I sent Defendant’s counsel Rebecca Stuart a meet and confer 24 letter, outlining the deficiencies in Defendant’s responses, unilaterally allowing seven additional 25 days to provide further substantive responses, and an additional 14 days to produce documents. 26 Attached as Exhibit D is a true and correct copy of the May 5, 2020 letter. 27 28 2 DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS 7. On May 13, 2020, Defendant’s counsel sent me a meet and confer letter, 1 denying any deficiencies in Defendant’s responses, and instead tried to shift the burden back to 2 Plaintiffs to amend their requests, indicating that she is “willing to provide specific responses” if 3 any when that happens. Attached as Exhibit E is a true and correct copy of the May 13, 2020 4 letter. 5 8. On May 26, 2020, Defendant’s counsel and I attempted to resolve these 6 discovery issues over the phone. During that call, Defendant’s counsel informed me that she was 7 going to produce documents related to Modern Health’s Series A financing round, since those 8 documents were on Wilson Sonsini’s server. For all other documents, Defendant’s counsel 9 indicated she was having issues producing them, because they are on Modern Health’s server 10 that is not remotely accessible to her. I questioned this statement and urged her to keep trying, as 11 Modern Health is a venture-backed tech startup, and Wilson Sonsini has been a premiere tech 12 law firm for years now. Defendant’s counsel agreed to keep trying. 13 9. On May 29, 2020, Defendant, through counsel, produced the Series A 14 documents only. 15 10. Still having not received supplemental responses and no other documents, on 16 June 11, 2020, I sent another meet and confer letter in the hopes of resolution. Attached as 17 Exhibit F is a true and correct copy of the June 11, 2020 letter. 18 11. Defendant’s counsel responded on June 26, 2020, still refusing to supplement 19 Defendant’s responses. Attached as Exhibit G is a true and correct copy of the June 26, 2020 20 letter. 21 12. Defendant’s counsel and I had another call scheduled for July 6, 2020 as a 22 last-ditch effort to resolve the discovery issues, but Defendant’s counsel cancelled that call. 23 13. It is now July 8, 2020. Defendant has failed to produce any more documents, 24 and Defendant’s responses to Plaintiff’s Special Interrogatories and requests for production of 25 documents remain deficient. 26 14. Defendant’s failure to provide adequate responses to the Discovery Requests 27 was without substantial justification and constituted a misuse of discovery under Code of Civil 28 3 DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS Procedure CCP § 2023.010. Because of this unreasonable failure, Plaintiff has incurred and will 1 incur fees, reasonable costs, and attorneys’ fees for bringing this motion in the amount of 2 $21,820.00 consisting of the following: 3 - Motion fee: $60 4 - Attorneys’ fees to date- to meet and confer, to prepare and file motion: $19,945.00 5 - Reply and hearing projected attorneys’ fees: $1,875 (5 hours x my billing rate of 6 7 $375/hr.) 8 I declare under penalty of perjury under the laws of California that the foregoing is true 9 and correct. Executed this 8th day of July 2020 in Fremont, California. 10 11 12 13 ___________________________________ Nicole Daryanani 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECLARATION OF NICOLE DARYANANI IN SUPPORT OF PLAINTIFFS BENJAMIN MCCANN AND ERIK BUCHANAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND INSPECTION DEMANDS AND REQUEST FOR MONETARY SANCTIONS EXHIBIT A EXHIBIT B 1 DAVID J. BERGER, State Bar No. 147645 REBECCA L. STUART, State Bar No. 254348 2 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 3 650 Page Mill Road Palo Alto, CA 94304-1050 4 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 5 Email: dberger@wsgr.com; rstuart@wsgr.com 6 Attorneys for Defendant ALYSON FRIEDENSOHN, and Nominal Defendant, 7 MODERN HEALTHCARE INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 BENJAMIN McCANN and ERIK BUCHANAN, ) CASE NO.: CGC-19-581012 Derivatively on Behalf of Nominal Defendant, ) 11 MODERN HEALTHCARE, INC., a Delaware ) corporation, ) STIPULATION AND [PROPOSED] 12 ) CONFIDENTIALITY AGREEMENT Plaintiff, ) AND ORDER 13 ) v. ) 14 ) ALYSON FRIEDENSOHN, ) Presiding Judge: Garrett L. Wong 15 ) Defendant, ) 16 ) Complaint Filed: November 25, 2019 and ) Trial Date: None 17 ) MODERN HEALTHCARE, INC., a Delaware ) 18 corporation, ) ) 19 ) Nominal Defendant, ) 20 ) and ) 21 ) and DOES 1 through 20, inclusive. ) 22 ) 23 24 25 26 27 28 /// 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 In order to protect the confidentiality of confidential information obtained by the parties 2 in connection with this case, all parties by and through their respective undersigned counsel, 3 hereby stipulate and agree as follows: 4 Part One: Use of Confidential Materials in Discovery or Settlement Discussions 5 1. Any party or non-party may designate as “Confidential Information” (by stamping 6 the relevant page or as otherwise set forth herein) any document or response to discovery or in 7 settlement discussions which that party or non-party considers in good faith to contain 8 information involving trade secrets, or confidential business or financial information, subject to 9 Rules 2.550, 2.551, 2.580, 2.585, 8.46, and 8.490 of the California Rules of Court, or under other 10 provisions of California law. Any party or non-party may designate such information as 11 “Confidential – Attorney’s Eyes Only” if it believes in good faith that such information is highly 12 confidential, non-public, personal or proprietary business information, the disclosure of which 13 would be especially detrimental or harmful to the producing party if disclosed. Where a 14 document or response consists of more than one page, the first page and each page on which 15 information designated as “Confidential Information” or “Confidential – Attorney’s Eyes Only” 16 appears shall be so designated. 17 2. A party or non-party may designate information disclosed during a deposition or 18 in response to written discovery or in settlement discussions as “Confidential Information” or as 19 “Confidential – Attorney’s Eyes Only” by so indicating in said responses or on the record at the 20 deposition and requesting the preparation of a separate transcript of such material. In addition, a 21 party or non-party may designate in writing, within twenty (20) days after receipt of said 22 responses or of the deposition transcript for which the designation is proposed, that specific 23 pages of the transcript and/or specific responses be treated as “Confidential Information” or 24 “Confidential – Attorney’s Eyes Only.” Any other party may object to such proposal, in writing 25 or on the record. Upon such objection, the parties shall follow the procedures described in 26 paragraph 8 below. After any designation made according to the procedure set forth in this 27 paragraph, the designated documents or information shall be treated according to the designation 28 until the matter is resolved according to the procedures described in paragraph 8 below, and -2- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 counsel for all parties shall be responsible for marking all previously unmarked copies of the 2 designated material in their possession or control with the specified designation. 3 3. All information designated “Confidential Information” or “Confidential – 4 Attorney’s Eyes Only” produced or exchanged in the course of this case (not including 5 information that is publicly available) shall be used by the party or parties to whom the 6 information is produced solely for the purpose of this case. 7 4. Except with the prior written consent of the other parties, or upon prior order of 8 this Court obtained upon notice to opposing counsel, 9 (a) “Confidential Information” shall not be disclosed to any person other than: 10 (1) outside counsel for the respective parties to this litigation, 11 including co-counsel retained for this litigation, 12 (2) employees of such counsel, 13 (3) in-house counsel for the parties, 14 (4) individual parties or officers or employees of a party, to the extent 15 deemed necessary by counsel for the prosecution or defense of this litigation, 16 (5) consultants or expert witnesses retained for the prosecution or 17 defense of this litigation, provided that each person shall execute a copy of the Certification 18 annexed to this Order (which shall be retained by counsel to the party so disclosing the 19 Confidential Information and made available for inspection by opposing counsel during the 20 pendency or after the termination of the action only upon good cause shown and upon order of 21 the Court) before being shown or given any Confidential Information, and provided that if the 22 party chooses a consultant or expert employed by the defendant or one of its competitors (as 23 listed on Appendix A), the party shall notify the opposing party, or designating non-party, before 24 disclosing any Confidential Information to that individual and shall give the opposing party an 25 opportunity to move for a protective order preventing or limiting such disclosure; 26 (6) any authors or recipients of the Confidential Information; 27 (7) the Court, Court personnel, and court reporters; and 28 -3- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 (8) witnesses (other than persons described in paragraph 4(a)(6)). A 2 witness shall sign the Certification before being shown a confidential document. Confidential 3 Information may be disclosed to a witness who will not sign the Certification only in a 4 deposition in which the party who designated the Confidential Information is represented or has 5 been given notice that Confidential Information produced by the party may be used. At the 6 request of any party, the portion of the deposition transcript involving the Confidential 7 Information shall be designated “Confidential Information” pursuant to paragraph 2 above. 8 Witnesses shown Confidential Information shall not be allowed to retain copies. 9 (b) “Confidential – Attorney’s Eyes Only” information may be disclosed only 10 to persons listed in Paragraphs 4(a)(1), 4(a)(2), 4(a)(5), 4(a)(6), and 4(a)(7). “Confidential – 11 Attorney’s Eyes Only” information may be shown to persons listed in Paragraph 4(a)(8) if the 12 witness is an employee of the party who produced the information designated as “Confidential – 13 Attorney’s Eyes Only,” if the witness is identified on the face of the document as a previous 14 recipient, or if the party who produced the information designated as “Confidential – Attorney’s 15 Eyes Only” consents before such designated information is disclosed to the witness. 16 5. Any persons receiving information designated “Confidentia1 Information” or 17 “Confidential – Attorney’s Eyes Only” shall not reveal or discuss such information to or with 18 any person who is not entitled to receive such information, except as set forth herein. 19 6. In connection with discovery proceedings as to which a party submits information 20 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only,” all documents 21 and chamber copies containing information designated “Confidential Information” or 22 “Confidential – Attorney’s Eyes Only” which are submitted to the Court shall be filed with the 23 Court in sealed envelopes or other appropriate sealed containers. On the outside of the 24 envelopes, a copy of the first page of the document shall be attached. If information designated 25 “Confidential Information” or “Confidential – Attorney’s Eyes Only” is included in the first page 26 attached to the outside of the envelopes, it may be deleted from the outside copy. The word 27 “CONFIDENTIAL” shall be stamped on the envelope and a statement substantially in the 28 following form shall also be printed on the envelope: -4- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 “This envelope is sealed pursuant to Order of the Court, contains Confidential 2 Information and is not to be opened or the contents revealed, except by Order of the Court or 3 agreement by the parties.” 4 7. A party may designate as “Confidential Information” or “Confidential – 5 Attorney’s Eyes Only” documents or discovery materials produced by a non-party by providing 6 written notice to all parties of the relevant document numbers or other identification within thirty 7 (30) days after receiving such documents or discovery materials. 8 8. If a party contends that any material is not entitled to confidential treatment, such 9 party may at any time give written notice to the party or non-party who designated the material. 10 The party or non-party who designated the material shall have twenty-five (25) days from the 11 receipt of such written notice to apply to the Court for an order designating the material as 12 confidential. The party or non-party seeking the order has the burden of establishing that the 13 document is entitled to protection. 14 9. Notwithstanding any challenge to the designation of material as “Confidential 15 Information” or “Confidential – Attorney’s Eyes Only,” all documents shall be treated as 16 designated and shall be subject to the provisions hereof unless and until one of the following 17 occurs: 18 (a) the party or non-party who designates the material as “Confidential 19 Information” or “Confidential – Attorney’s Eyes Only” withdraws such designation in 20 writing; or 21 (b) the party or non-party who designates the material as “Confidential 22 Information” or “Confidential – Attorney’s Eyes Only” fails to apply to the Court for an 23 order designating the material confidential within the time period specified above after 24 receipt of a written challenge to such designation; or 25 (c) the Court rules the material is not “Confidential Information” or 26 “Confidential – Attorney’s Eyes Only.” 27 10. All provisions of this Order restricting the communication or use information 28 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only” shall continue -5- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 to be binding after the conclusion of the action, unless otherwise agreed or ordered. Upon 2 conclusion of the litigation, a party, counsel, expert and/or consultant in possession of 3 information provided to them and designated “Confidential Information” or “Confidential – 4 Attorney’s Eyes Only,” other than that which is contained in pleadings, correspondence, and 5 deposition transcripts, shall either (a) return such documents no later than thirty (30) days after 6 conclusion of this action to counsel for the party or non-party who provided such information, or 7 (b) destroy such documents within the time period upon consent of the party who provided the 8 information and certify in writing within thirty (30) days that the documents have been 9 destroyed. 10 11. Nothing herein shall be deemed to waive any applicable privilege or work product 11 protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material 12 protected by privilege or work product protection. Any witness or other person, firm 13 or entity from which discovery is sought may be informed of and may obtain the protection of 14 this Order by written advice to the parties’ respective counselor by oral advice at the time of any 15 deposition or similar proceeding. 16 Part Two: Use of Confidential Materials in Court 17 The following provisions govern the treatment of information designated “Confidential 18 Information” or “Confidential – Attorney’s Eyes Only” used at trial or submitted as a basis for 19 adjudication of matters other than discovery motions or proceedings. 20 These provisions are subject to Rules 8.160, 8.490, 2.550, 2.551, 2.580, and 2.585 of the 21 California Rules of Court and must be construed in light of those Rules. 22 12. A party that files with the Court, or seeks to use at trial, materials designated as 23 “Confidential Information” or “Confidential – Attorney’s Eyes Only,” and, who seeks to have 24 the record containing such information sealed, shall submit to the Court a motion to seal, 25 pursuant to California Rules of Court 2.551. 26 13. A party that files with the Court, or seeks to use at trial, materials designated as 27 “Confidential Information” or “Confidential – Attorney’s Eyes Only” by anyone other than 28 -6- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 itself, and who does not seek to have the record containing such information sealed, shall comply 2 with either of the following requirements: 3 (a) At least ten (10) business days prior to the filing or use of information 4 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only,” the submitting 5 party shall give notice to all parties, and to any non-party that designated the materials as 6 “Confidential Information” or “Confidential – Attorney’s Eyes Only” pursuant to this Order, of 7 the submitting party’s intention to file or use information designated “Confidential Information” 8 or “Confidential – Attorney’s Eyes Only,” including specific identification of the information 9 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only.” Any affected 10 party or non-party may then file a motion to seal, pursuant to California Rules of Court 2.551; or 11 (b) At the time of filing or desiring to use information designated 12 “Confidential Information” or “Confidential – Attorney’s Eyes Only,” the submitting party shall 13 submit the materials pursuant to the lodging-under-seal provision of California Rule of Court 14 2.551(d). Any affected party or non-party may then file a motion to seal pursuant to the 15 California Rule of Court 2.551 (b), within ten (10) business days after such lodging. Documents 16 lodged pursuant to California Rule of Court 2.551(d) shall bear a legend stating that such 17 materials shall be unsealed upon the expiration of ten (10) business days, absent the filing of a 18 motion to seal pursuant to Rule 2.551 (b) or Court Order. 19 (c) Notwithstanding the above, plaintiffs shall be deemed to have given notice 20 of their intent to submit information designated as “Confidential Information” or “Confidential – 21 Attorney’s Eyes Only” to the Court in materials filed with the Court in support of plaintiffs’ 22 motion for preliminary injunction. This provision does not relieve plaintiffs of their obligation to 23 comply with Paragraph 13(b). The parties shall confer in good faith and if necessary seek the aid 24 of the Court should any party wish to disclose the contents of information designated as 25 “Confidential Information” or “Confidential – Attorney’s Eyes Only” during any court 26 proceeding. 27 14. In connection with a request to have materials sealed pursuant to Section 12 or 28 Section 13, the moving party’s declaration pursuant to California Rule of Court 2.551(b)(l) shall -7- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 * * * 2 IT IS SO ORDERED. 3 4 Dated: _________ ___, 2020 5 6 JUDGE OF THE SUPERIOR COURT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 CERTIFICATION 2 I hereby certify my understanding that information designated as “Confidential 3 Information” and/or “Confidential – Attorney’s Eyes Only” is being provided to me pursuant to 4 the terms and restrictions of the Proposed Confidentiality Agreement and Order dated 5 ____________, 2020, in McCann, et al, v. Friedensohn, et al., Case No. CGC-19-58-1012. I 6 have been given a copy of that Order and read it. 7 I agree to be bound by the Order. I will not reveal the information designated 8 “Confidential Information” or “Confidential – Attorney’s Eyes Only” to anyone, except as 9 allowed by the Order. I will maintain all such information designated “Confidential 10 Information” or “Confidential – Attorney’s Eyes Only” – including copies, notes, or other 11 transcriptions made therefrom – in a secure manner to prevent unauthorized access to it. No later 12 than thirty (30) days after the conclusion of this action, I will return the information designated 13 “Confidential Information” or “Confidential – Attorney’s Eyes Only” – including copies, notes, 14 or other transcriptions made therefrom – to the counsel who provided me with the information 15 designated “Confidential Information” or “Confidential – Attorney’s Eyes Only.” I hereby 16 consent to the jurisdiction of the California Superior Court, County of San Francisco, for the 17 purpose of enforcing the Confidentiality Agreement and Order. 18 I declare under penalty of perjury that the foregoing is true and correct and that this 19 certificate is executed this _____ day of __________, at ____________________. 20 By: 21 Address: 22 23 Phone: 24 25 26 27 28 -10- 11436110_1.docx STIPULATION AND [PROPOSED] CONFIDENTIALITY AGREEMENT AND ORDER CASE NO. CGC-19-581012 1 DAVID J. BERGER, State Bar No. 147645 REBECCA L. STUART, State Bar No. 254348 2 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 3 650 Page Mill Road Palo Alto, CA 94304-1050 4 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 5 Email: dberger@wsgr.com; rstuart@wsgr.com 6 Attorneys for Defendant ALYSON