Your post about status is good re the Former SI guru paid basher hedge fund manager.
ORDER ON DISCOVERY MOTIONS 10/27/06
Plaintiff Matrixx Initiatives, Inc. (“Plaintiff”) alleges Defendant Steven Worthington or his agent posted defamatory statements about Plaintiff on a Yahoo! Finance message board through alias “gunnallenlies” to cause the stock to sink in value, where thereby Mr. Worthington shorted the stock through his hedge fund company, Defendant Barbary Coast Capital Management (collectively, “Defendant”). ...
Over Defendant’s objections based on First Amendment grounds, this Court ordered Defendant to disclose the identities of“gunnallenlies” and “veritasconari”, another alias used to post defamatory statements. This Order was upheld on appeal. ...
deposed a second time on 27 June 2006 ...
again asked whether he personally posted, caused others to post, or knew the identities of those who posted the “gunnallenlies” and “veritasconari” defamatory statements, he invoked a Fifth Amendment privilege against self-incrimination, and refused to testify. He also asserted a Fifth Amendment privilege and refused to answer whether he had sold Matrixx short stock at any time from January 1, 2003 to the present. ...
refused to remove the “highly confidential” designations from his Fifth Amendment claims of privilege, Plaintiff filed this Motion to Remove Confidential Information Designations on August 21, 2006. ...
Defendant requests a closed hearing “to avoid inadvertent public disclosure of highly confidential information.” ...
The Court does not find that Defendant has adequately established an overriding interest supporting closure of this proceeding. Defendant’s Request for Closed Hearing is DENIED. ...
Motion to Remove Confidential Information Designations
The Protective Order Is Not Limited to Deposition Testimony ...
Plaintiff’s Motion to Remove Confidential Information Designations by Steven Worthington is GRANTED. ...
wanna see where the above info came from?
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DISCOVERY CALENDAR TENTATIVE RULINGS
DATE: 27 October 2006 TIME: 10:00am
LINE: 1 CASE NO.: 1-02-CV-813627 Matrixx Vs John Doe ...
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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 7
191 North First Street, San Jose, CA 95113
MATRIXX Plaintiff, vs. JOHN DOEDefendants.
CASE NUMBER: 1-02-CV-813627
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 7 in the Downtown Superior Courthouse, 3rd Floor, 191 North First Street, San Jose. Any party opposing the tentative ruling must call Department 7 at 408.882.2170 and the opposing party no later than 4:00 PM on Thursday, October 26th, 2006. The Motion by Plaintiff to Remove Confidential Information Designations by Steven Worthington came on regularly for hearing beforethe Honorable Socrates Peter Manoukian on October 27, 2006 at 10:00 a.m. in Department 7. The matter having been submitted, the Court finds and orders as follows: May the assertion of a Fifth Amendment right against self-incrimination qualify as a trade secret? This Court concludes that theassertion of rights against self-incrimination do not constitute a recognizable trade secret. BACKGROUND This motion arises from a defamation lawsuit. Plaintiff Matrixx Initiatives, Inc. (“Plaintiff”) alleges Defendant Steven Worthington or his agent posted defamatory statements about Plaintiff on a Yahoo! Finance message board through alias “gunnallenlies” to cause thestock to sink in value, where thereby Mr. Worthington shorted the stock through his hedge fund company, Defendant Barbary CoastCapital Management (collectively, “Defendant”). Over Defendant’s objections based on First Amendment grounds, this Court ordered Defendant to disclose the identities of“gunnallenlies” and “veritasconari”, another alias used to post defamatory statements. This Order was upheld on appeal This Order was upheld on appeal on the basis that Worthington and Barbary Coast lacked standing to oppose the discovery order. Matrixx Initiatives, Inc. v. Doe (2005) 138 Cal.App.4th872. Click Here to Contest This Tentative Ruling by E-Mail
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27 October 2006 ORDER ON DISCOVERY MOTIONS Page 2 of 5 Worthington was deposed a second time on 27 June 2006. When Worthington was again asked whether he personally posted, causedothers to post, or knew the identities of those who posted the “gunnallenlies” and “veritasconari” defamatory statements, he invoked a Fifth Amendment privilege against self-incrimination, and refused to testify. He also asserted a Fifth Amendment privilege and refused to answer whether he had sold Matrixx short stock at any time from January 1, 2003 to the present. Worthington then designated his invocations of the Fifth Amendment privilege as “highly confidential” under the terms of the protective order. After Worthington refused to remove the “highly confidential” designations from his Fifth Amendment claims of privilege, Plaintiff filed this Motion to Remove Confidential Information Designations on August 21, 2006. DISCUSSION A.Defendant’s Request for Closed Hearing Defendant requests a closed hearing “to avoid inadvertent public disclosure of highly confidential information.” Code Civ. Proc. § 124 states: “Except as provided in Section 214 of the Family Code or any other provision of law, the sittings of every court shall be public.”Substantive courtroom proceedings in ordinary civil cases are thus “presumptively open,” and may only be closed if the trial court provides notice to the public of the contemplated closure, and conducts a hearing that expressly finds: that there exists an overridinginterest supporting closure; that there is a substantial probability that the interest will be prejudiced absent closure; that the proposedclosure is narrowly tailored to serve the overriding interest; and, that there is no less restrictive means of achieving the overriding interest. (NBC Subsidiary (KNBC-TV), Inc. v. Super. Ct. (Locke) (1999) 20 Cal.4th1178, 1216-18; Rule of Court 243.1) The Court does not find that Defendant has adequately established an overriding interest supporting closure of this proceeding.Defendant’s Request for Closed Hearing is DENIED. B.Motion to Remove Confidential Information Designations The Protective Order Is Not Limited to Deposition Testimony The contention is that the Protective Order only protects deposition testimony. However, this contradicts the plain language of the Protective Order. Section 3.1.2 sets forth the treatment of deposition transcripts: “If any party believes that the deposition transcript or a portion thereof is confidential or highly confidential pursuant to Sections 1.2 or 1.3, that party shall, within the 30-day period, designate in writing the specific pages and lines deemed confidential or highly confidential, and shall notify all parties and the court reporters.” Sections 1.2 and 1.3 deem “Material” to be the only matter to be designated either as confidential or highly confidential, and Section 1.1 defines “Material” as “any document, data compilation, testimony, or other information in any form produced or disclosed inthis action, whether voluntarily or through any means of discovery, and whether by a party or non-party to this action.” It is clear that “Material” can thus include information other than deposition testimony, since the last category of information—“other information in any form produced or disclosed in this action”—is comprehensive. Accordingly, Plaintiff is incorrect that a refusal to testify cannot constitute “Material.”Plaintiff’s confusion stems from its reliance on the following sentences of Section 3.1.2 that articulates another means of preserving confidentiality of a portion of the transcript: Portions of testimony taken during depositions may also be designated confidential or highly confidential by so stating on the recordduring the deposition, and in such event no further action need be taken to preserve the confidentiality of that portion (or portions) of the transcript. In the event a party designates testimony as confidential or highly confidential during the course of a deposition, the parties, attorneys, witnesses, court reporters, and anyone else present at the deposition shall take appropriate measures to protect theconfidentiality of the testimony to be given. However, it is clear that these sentences do not redefine the term “Material” as applied to depositions to be limited to deposition testimony. Rather, these sentences simply allow a means to designate portions of deposition testimony during the deposition itself, rather than going through the first mentioned formal process requiring the designating party to “within the 30-day period, designate inwriting the specific pages and lines deemed confidential or highly confidential, and [further requiring designating party to] notify all parties and the court reporters.” The Protective Order is not limited to deposition testimony. Defendant Fails to Show Material at Issue is Confidential or Highly Confidential Section 1.2 of the Protective Order states: “Material may be deemed ‘confidential’ if it contains or reveals trade secrets or other non-public, financial, personal, proprietary or competitively sensitive information.” Defendant does not assert that his assertion of the Fifth
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27 October 2006 ORDER ON DISCOVERY MOTIONS Page 3 of 5 Amendment during deposition testimony contains or reveals trade secrets. Rather, Defendant asserts that his Fifth Amendment invocations would constitute either “personal information”, or “non-public information,” or should be protected since—although not “financial information”—revealing the invocations in public would have an actual financial effect. To maintain the designation of confidentiality of its Fifth Amendment invocations, according to Section 3.2.1 of the Protective Order, Defendant “bear[s] the burden of proving that the Material at issue is confidential or highly confidential….” “Financial information”Defendant’s latter argument that his invocations of the Fifth Amendment’s right against self-incrimination should be protected since it would “subject him to needless inquiry and trepidation on the part of investors and prospective investors with whom he deals on a daily basis” is without merit. By the plain reading of the term “material,” this concern was not contemplated by the Protective Order. As Defendant concedes, this is not “financial information.”“Non-public information”Defendant also asserts that his invocations of the Fifth Amendment should be protected since these portions of the depositiontranscript can be considered “non-public information,” a protected category of information per the Protective Order. However, Defendant does not provide any authority to support its claim that the bare assertion of the Fifth Amendment “is obviously ‘non-public.’”1Defendant has failed to overcome its burden to prove that its Fifth Amendment invocations are “non-public” as contemplatedby parties and thus protected by the terms of the Protective Order. “Personal information” Finally, Defendant claims that although “personal information” is not defined by the Protective Order, Defendant’s assertion of his Fifth Amendment rights “must be [considered as information that is] “‘personal’ under Section 1.2.” Defendant argues that “because of the inferences people draw from the assertion” of the Fifth Amendment right against self-incrimination, that assertion “could scarcely bemore personal.” However, Defendant again merely shows how the invocations of the Fifth Amendment might be considered as personal, rather than showing how such invocations might be considered as “personal information” as contemplated by the Protective Order. As Defendant notes, the term “personal information” is not defined by this Protective Order. Defendant’s lack of providing anydefinition again demonstrates Defendant’s failure to meet its burden to prove that the invocations constitute “personal information.”2Plaintiff’s Motion to Remove Confidential Information Designations by Steven Worthington is GRANTED.CONCLUSIONDefendant’s Request for Closed Hearing is DENIED. Plaintiff’s Motion to Remove Confidential Information Designations by Steven Worthington is GRANTED.1The assertion of any privilege in response to a discovery request is specifically required and is not considered “non-public.” (See Cal. Rule of Court243; Code Civ. Proc. §§ 2030.240(b) (requiring any objection to an interrogatory based on any particular privilege to be clearly stated);2031.240(b(2) (requiring any objection to an inspection demand based on any particular privilege to be clearly stated), 2033.230(b) (requiring any objection to a request for admission based on any particular privilege to be clearly stated).) The objecting party’s assertion of privilege is part of thepublic record should a motion to compel further responses be filed. 2Even considering other definitions of the term “personal information,” it is apparent that the assertion of the Fifth Amendment is inapplicable. According to the California Civil Code, the “term ‘personal information’ means any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual.” In the context of other cases involving information subject to a protective order, “personal information” is either private information protected by Art. I, § 1 of the California Constitution, or information submitted to a governmental office—such as DMV records— but subject to a public policy of confidentiality. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1; see also McCabe v. Snyder (1999), 75 Cal.App.4th 337 (personal information in DMV records is confidential); see also Richards v. Super. Ct. (Lee) (1978) 86 Cal.App.3d 265; see also Willis v. Super. Ct. (Willis) (1980) 112 Cal.App.3d 277, 297; see also Schnabel v. Super. Ct. (Schnabel) (1993) 5 Cal.4th704, 718; see also Tien v. Super. Ct. (Tenet healthcare Corp.)(2006) 139 Cal.App.4th528, 539-40.) The bare assertion of the Fifth Amendment right against self-incrimination is neither, and again, Defendant does not submit any other definition for “personal information” such that it proves that the invocations of the Fifth Amendment constitutes “personal information” as intended by parties in the Protective Order. Accordingly, Defendant has failed to meet its burden to prove that its invocations of the Fifth Amendment right against self-incrimination constitute “personal information.”
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27 October 2006 ORDER ON DISCOVERY MOTIONS Page 4 of 5 DATED:_________________________________________________ HON. SOCRATES PETER MANOUKIAN
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27 October 2006 ORDER ON DISCOVERY MOTIONS Page 5 of 5 Judge of the Superior Court County of Santa Clara
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72.14.203.104.
I expect you to post this on the censorship united a@p gated community board like you did another post earlier today! You know the one about testimony was expected to begin last Thursday morning about Hampton Porter. |
