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

Case 3:08-cv-03141-WHA

Document 23

Filed 07/03/2008

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GEORGE L. GUERR, CASB No. 158263 FOWLER WHITE BOGGS BANKER P.A. 501 E. Kennedy Blvd., Suite 1700 Tampa, Florida 33602
Tel: (813) 228-7411

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Fax: (813) 229-8313 Email: george.guerra(ifowlerwhite.com

Attorney for Defendant

6 DOUGLAS GREEN

7 NORTHERN DISTRICT OF CALIFORNIA
CIVIL DIVISION
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UNITED STATES DISTRICT COURT

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PERSHING LLC,

) CASE NO. CV-08-3141 WHA
)

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Plaintiff,
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) EMERGENCY MOTION FOR ) PROTECTIVE ORDER
) ) ) ) ) ) )

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vs.

CROCKER SECURITIES LLC and DOUGLAS GREEN,
Defendants.

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Defendant, DOUGLAS GREEN ("GREEN"), respectfully requests that this Court issue
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a Protective Order to prohibit the expedited deposition of Mr. Green from going forward on July
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9, 2008. As a FINRA member firm, Pershing has agreed to arbitrate any disputes with
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associated persons and other member firms including Mr. Green and Crocker. The arbitration
process does not allow for and in fact prohibits depositions except in very limited circumstances.

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The subject Motion is based on the matters stated herein, the attendant Memorandum of
Points and Authorities in support of this Motion as well as the Memorandum filed in support of
Defendant's Motion for Dissolution ofthe Ex-Parte Order Granting TRO, Order to Show Cause

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Emergency Motion for Protective Order 3 :08-cv-03 141 WHA

Case 3:08-cv-03141-WHA

Document 23

Filed 07/03/2008

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and Expedited Discovery, and to Compel Arbitration and such other papers as may be filed by
the parties to this action.

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Dated this 3rd day of July, 2008.

Respectfully submitted,

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sf George L. Guerra, Esq. George L. Guerra California Bar No: 158263
FOWLER WHITE BOGGS BANKER P.A.

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P.O. Box 1438
Tampa, FL 33601

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(813) 228-7411 Fax No: (813) 229-8313 Email: george.guerra(ifowlerwhite.com Attorney for Defendant

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2 Emergency Motion for Protective Order 3 :08-cv-03141 WHA

Case 3:08-cv-03141-WHA

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Filed 07/03/2008

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GEORGE L. GUERR, CASB No. 158263 FOWLER WHITE BOGGS BANKER P.A. 501 E. Kennedy Blvd., Suite 1700 Tampa, Florida 33602
Tel: (813) 228-7411

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Fax: (813) 229-8313 Email: george.guerra(ffowlerwhite.com

Attorney for Defendant

6 DOUGLAS GREEN

UNITED STATES DISTRICT COURT

7 NORTHERN DISTRICT OF CALIFORNIA
CIVIL DIVISION
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PERSHING LLC,

) CASE NO. CV-08-3141 WHA
) ) ) )

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Plaintiff,
vs. CROCKER SECURITIES LLC and DOUGLAS GREEN,

DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

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Defendants.
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) )
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I.

STATEMENT OF FACTS
On or about July 1, 2008, in response to Plaintiffs Application for a Temporary

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Restraining Order, this Honorable Court entered an Ex Parte Order that effectively froze the

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assets of Douglas Green and permitted Plaintiff to conduct expedited discovery. On July 3,
2008, Plaintiff served a Notice of Taking the Depositions of Barr Cooper and Douglas Green,
both of

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which wil take place on July 8, 2008, in Miramar, Floridal. The subject Motion seeks to
Mr. Green.

preclude the deposition of

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1 Counsel has agreed to move the deposition to July 9,2008.
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Memo in Support of Mtn for Protective Order 3 :08-cv-03141 WHA

Case 3:08-cv-03141-WHA

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Filed 07/03/2008

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II. ARGUMENT
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Upon motion by a party, accompanied by a certification that the movant has in

good faith attempted to confer with other effected parties in an effort to resolve the
dispute, "(t)he court may, for good cause, issue an order to protect a party or person from
annoyance, embarassment, oppression, or undue burden or expense. . . ." Fed. R. Civ. P.

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26(c); Dolby Laboratories, Inc. v. Lucent Technologies, Inc., 2004 WL 2445232, *3
(N.D. CaL. 2004); Lectrolarm Custom Systems, Inc. v. Pelco Sales, Inc., 212 F.R.D. 567,

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573 (RD. CaL. 2002). After the movant demonstrates good cause, the court must balance
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the interests in allowing the discovery against the relative burdens to the parties. Dolby
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Laboratories, Inc., 2004 WL 2445232 at *3.

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1. Plaintiff should not be allowed to circumvent FINRA rules and engage in
discovery.

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As discussed in Defendant Green's Motion to Dissolve this Court's Ex Parte
Order, Stay this Proceeding, and Compel Arbitration, the parties agreed to arbitrate this

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dispute by virte of their membership with FINRA.2 Extensive pre-trial discovery
permitted in the courts is not available in securities arbitration proceedings. Otherwise,
arbitration would be afflicted with the same costly and time-consuming discovery

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procedures that arbitration is designed to avoid. As a result, Plaintiff has filed this action

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2 Plaintiff Pershing LLC and Defendant Crocker Securities LLC are registered broker/dealers.
Defendant Green is an associated person of Crocker Securities LLC as defined under Rule 13100 of the Code of Arbitration Procedure for Industry Disputes.
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Memo in Support ofMtn for Protective Order 3:08-cv-03141 WHA

Case 3:08-cv-03141-WHA

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in an improper forum and is attempting to engage in discovery to which it would
otherwise not be entitled under FINRA Rules.

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Defendant Green should not be forced to suffer the undue burden and expense
associated with the depositions plaintiff has noticed. As a member firm Pershing is not
permitted to litigate some matters and arbitrate others. It has given up that right and
agreed to arbitrate this dispute. Mr. Green has similarly agreed and certainly would not

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be allowed to pick and choose when he might arbitrate and when he might litigate.

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Indeed, the failure to proceed in arbitration may be deemed a breach of FINRA rules that
could subject the breaching party to disciplinary action.

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Depositions are rarely if ever allowed in arbitration and only by special

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permission of the arbitrators, under limited circumstances not present here. They are not

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allowed because of the burden they impose on the paries in terms of increased costs and

expenses. Additionally problematical is the inability to segregate the TRO issues from
the underlying substantive issues. As a result, if allowed to go forward, the Plaintiff wil

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have a gross advantage of unilateral discovery, not otherwise available to Mr. Green, if
he wishes to preserve his right to arbitrate.

It wil be burdensome and costly for Mr. Green and his counsel to attend
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unneccesary depositions. The relative burdens imposed on Mr. Green should this Court

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allow the deposition to proceed, therefore clearly outweigh Plaintiffs interest in taking

the deposition. Though different, Plaintiff wil have ample opportnity in arbitration to
investigate their case.

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Memo in Support ofMtn for Protective Order 3:08-cv-03141 WHA

Case 3:08-cv-03141-WHA

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Since this matter should be compelled to arbitration, this Court should not permit
Plaintiff to obtain discovery, expedited or otherwise, in this forum.

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RULE 26 CERTIFICATION

Pursuant to Fed. R. Civ. P. 26(c), the undersigned counsel has conferred with

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counsel for Plaintiff and attempted to resolve the issues raised in this Motion, but was
unsuccessfuL.

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WHEREFORE, the Defendant Green respectfully requests the Court enter a

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Protective Order prohibiting Plaintiff from going forward with the depositions noticed for
July 8, 2008.

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Dated this 3rd day of July, 2008.
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Respectfully submitted,

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s/ George L. Guerra, Esq. George L. Guerra California Bar No: 158263 FOWLER WHITE BOGGS BANKER P.A. P.O. Box 1438
Tampa, FL 33601

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(813) 228-7411 Fax No: (813) 229-8313 Email: george.guerra(ffowlerwhite.com Attorney for Defendant

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Memo in Support of Mtn for Protective Order 3 :08-cv-03141 WHA

Case 3:08-cv-03141-WHA

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Filed 07/03/2008

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GEORGE L. GUERR, CASB No. 158263 FOWLER WHITE BOGGS BANKER P.A. 501 E. Kennedy Blvd., Suite 1700 Tampa, Florida 33602
Tel: (813) 228-7411

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Fax: (813) 229-8313 Email: george.guerra(ifowlerwhite.com

Attorney for Defendant

6 DOUGLAS GREEN

UNITED STATES DISTRICT COURT CIVIL DIVISION

7 NORTHERN DISTRICT OF CALIFORNIA
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PERSHING LLC,

) CASE NO. CV-08-3141 WHA
)

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) (PROPOSED) ORDER GRANTING
Plaintiff,

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) EMERGENCY MOTION FOR ) PROTECTIVE ORDER
) ) ) ) )

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vs.

CROCKER SECURITIES LLC and DOUGLAS GREEN,
Defendants.

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)

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This cause having come before the Court on Defendant Douglas Green's Emergency

Motion for a Protective Order, and after being fully advised in the premises,
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19 IT IS ORDERED that:
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Defendant Green's Emergency Motion for Protective Order is GRANTED.
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22 ORDERED AND ADJUDGED on this _ day of July, 2008.
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THE HONORABLE WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

Proposed Order Granting Emergency Mtn For Protective Order 3:08-CV-03141 WHA