Free Motion for Protective Order - District Court of California - California

Case 3:08-cv-00764-BEN-NLS

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Filed 08/13/2008

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Joseph N. Casas (SBN 225800) Tamara M. Craft (SBN 234419) CASAS LAW GROUP, P.C. 2323 Broadway, Suite 202 San Diego, CA 92102 Phone: (619) 692-3146 Facsimile: (619) 692-3196 Email: [email protected] Attorneys For Defendant Matthew La Madrid

John M. McCoy III, Cal. Bar No. 166244 Email: [email protected] Marc J. Blau, Cal. Bar No. 198162 Email: [email protected] Peter F. Del Greco, Cal. Bar No. 164925 Email: [email protected] Attorneys for Plaintiff Securities and Exchange Commission Rosalind Tyson, Acting Regional Director Michele Wein Layne, Associate Regional Director 5670 Wilshire Boulevard, 11th Floor Los Angeles, California 90036 Telephone: (323) 965-3998 Facsimile: (323) 965-3908

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

SECURITIES AND EXCHANGE COMMISSION, Plaintiff,

CASE NO. 08-CV-0764 BEN (NLS) JOINT MOTION TO SEAL THE DECLARATION OF JOSEPH N. CASAS IN SUPPORT OF MOTION TO STAY, DOCKET # 43, ATTACHMENT # 1 FILED AUGUST 4, 2008 Hon. Roger T. Benitez [S.D. Cal. Civ. L.R. 7.2] [Proposed Order lodged concurrently herewith]

14 v. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLUS MONEY, INC. AND MATTHEW LA MADRID. Defendants, THE PREMIUM RETURN FUND LIMITED-LIABILITY LIMITED PARTNERSHIP; THE PREMIUM RETURN FUND II LIMITED-LIABILITY LIMITED PARTNERSHIP; THE PREMIUM RETURN FUND III LIMITEDLIABILITY LIMITED PARTNERSHIP; RETURN FUND, LLC; RETURN FUND II, LLLC; RETURN FUND III, LLC; RETURN FUND IV, LLC; RETURN FUND V, LLC; RETURN FUND VI, LLC; PALLADIUM HOLDING COMPANY; and DONALD LOPEZ, Relief Defendants.

JOINT MOTION FOR ORDER TO SEAL CONFIDENTIAL DOCUMENTS 08cv0764 BEN (NLS)

Case 3:08-cv-00764-BEN-NLS

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In an effort to preserve judicial economy by avoiding unnecessary litigation and Pursuant to Local Rule 7.2, the parties hereby file this joint motion for an order sealing the Declaration of Joseph N. Casas in Support of Motion to Stay, Docket # 43, Attachment # 1, filed August 4, 2008. There is good cause for sealing the Declaration of Joseph N. Casas because the documents filed with the Court may contain secret, confidential and/or privileged information not intended to be disclosed to the public. I. STATEMENT OF FACTS

On August 4, 2008, defendant Matthew La Madrid ("Mr. La Madrid") filed his Reply and Declaration of Joseph N. Casas in support of his Motion to Stay Civil Proceedings Pending Resolution of Parallel Criminal Action. As Exhibit "A" to the supporting Declaration of Joseph N. Casas (Docket # 43, Attachment # 1), Mr. La Madrid attached a copy of a Grand Jury Subpoena as well as a Search Warrant. Mr. La Madrid's attorneys received copies of the Grand Jury Subpoena and the Search Warrant from a third party who did not notify them that the documents may be privileged or confidential. The Grand Jury Subpoena is not marked confidential. The Search Warrant had already been executed, and it was Mr. La Madrid's attorney's understanding that it was no longer under seal. In an abundance of caution, however, the parties respectfully request that the Court order that the Declaration of Joseph N. Casas in Support of Motion to Stay, Docket # 43, Attachment # 1, filed August 4, 2008 be filed under seal to prevent the inadvertent disclosure of any potentially secret, privileged and/or confidential information. /// /// /// /// 2
JOINT MOTION FOR ORDER TO SEAL CONFIDENTIAL DOCUMENTS 08cv0764 BEN (NLS)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Every Court has inherent, supervisory power over its own records and files and access may be denied where the Court determines that the Court files may be used for improper purposes. Nixon v. Warner Comm'n, Inc., 435 U.S. 589, 598 (1978). "Good cause" must be shown for the issuance of a sealing order. Public Citizen v. Legget Group, Inc., 858 F.2d 775, 789 (2d Cir. 1988). In deciding whether to seal records, the Court must balance the potential harm to the litigant's interests against the public's right to access court files. Any protective order must be narrowly drawn to reflect that balance. Citizens First Nat'l Bank of Princeton v. II. THE COURT SHOULD SEAL THE DECLARATION FILED BY MR. LA MADRID

Cincinnati Ins. Co., 178 F.3d 943, 943-945 (7th Cir. 1999.) See also United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988), citing Press Enter. Co. v. Superior Court, 464 U.S. 501, 510 (1984) (presumption of public access may be overcome when "closure is essential to preserve higher values and is narrowly tailored to serve that interest"); accord, Press Enter. Co. v. Superior Court, 478 U.S. 1, 9-10 (1986). Although the Grand Jury Subpoena filed with the Court is not a summary or transcript of actual grand jury testimony, and although the subpoena received from a third party was not marked confidential, the parties believe the general policy of maintaining the secrecy of grand jury proceedings is good cause to issue a sealing order. See Times Mirror Co., 873 F.2d. at 1215 (citing Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979)). See also United States v. Proctor & Gamble Co., 356 U.S. 677, 681-82 n.2 (1958) (approving the reasons for grand jury secrecy given in United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954)). Courts have held that the integrity of significant government activities entitled to confidentiality, such as ongoing undercover investigations, are compelling interests justifying a request for an order to seal. See United States v. Doe, 63 F.3d 121, 128 (2d Cir. 1995), quoting In re Herald Co., 734 F.2d 93, 100 (2d Cir. 1984). Most search warrant materials "routinely become public" after the warrant is served. Times Mirror Co. v. U.S., 873 F.2d 1210, 1214 (9th Cir. 1989). If the government does not 3
JOINT MOTION FOR ORDER TO SEAL CONFIDENTIAL DOCUMENTS 08cv0764 BEN (NLS)

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request a sealing order and the magistrate files the returned warrant materials with the clerk of the district court, as required by Fed. R. Crim. P. 41(g), the warrant materials become public records like any other document filed with the court. Id. Similarly, pursuant to Fed. R. Crim. Proc. 6(e)(6), a subpoena which relates to grand-jury proceedings and is under seal in the first instance is only required to be kept under seal as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury. Mr. La Madrid does not wish to risk the possibility of interfering with the integrity of a criminal investigation. As such, and in an abundance of caution, Mr. La Mardird respectfully request this Court to order the Declaration sealed in order to prevent, and/or remedy, any unintended disclosure. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 4
JOINT MOTION FOR ORDER TO SEAL CONFIDENTIAL DOCUMENTS 08cv0764 BEN (NLS)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: August ___, 2008 Dated: August 11, 2008

III. CONCLUSION For the above reasons, the Court should order that the Declaration previously filed with the Court: a. Be immediately removed from public access from the court's PACER website; b. Be filed in a sealed envelope; c. Be kept by the Clerk under seal; and d. Be examined or be copied only by the Court or pursuant to Court order. WHEREFORE, the parties respectfully request that the Court grant the relief requested in this joint motion. Respectfully submitted, CASAS LAW GROUP, P.C. /s/ Joseph N. Casas______ By: Joseph N. Casas Attorney for Defendant MATTHEW LA MADRID

Respectfully submitted,

____________________________________ JOHN M. MCCOY III Attorney for Plaintiff Securities and Exchange Commission

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JOINT MOTION FOR ORDER TO SEAL CONFIDENTIAL DOCUMENTS 08cv0764 BEN (NLS)

Case 3:08-cv-00764-BEN-NLS

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