Case Name: Tian, et al. v. Ma Laboratories, Inc., et al.
Case No.: 111CV195373
Defendant Ma Laboratories, Inc. moves for a Protective Order controlling all of Plaintiffs’ counsel Sanford Heisler, LLP’s and Xinying Valerian’s communication with putative class members until the motion for class certification has been decided. Defendant argues that Plaintiffs’ counsels’ improper solicitations and communications in the case Lou v. Ma Laboratories, Inc. Case No. 3:12 CV 05409 (Lou matter) warrant a Protective Order to prevent similar conduct in this case. Defendant points to eleven instances that Defendant alleges constitute improper solicitations and communications. Plaintiffs dispute all eleven instances on the grounds that counsel was properly communicating with putative class members and with named Plaintiffs.
Statement of Facts
In the Lou case, Defendant submitted the June 19, 2013 Declaration of Yung Jen “Steven” Chu in Support of the Defendants’ Opposition to the Motion for Class Certification. (Bishop Decl. Ex. A.) On November 1, 2013, Plaintiffs’ counsel submitted a Counter-Declaration of Yung Jen “Steven” Chu in Support of Plaintiffs’ Motion to Strike Class Member Declarations. (Bishop Decl. Ex. B.) Defendant then moved to disqualify class counsel and filed the Declaration of Yung Jen “Steven” Chu. (Bishop Decl. Ex. C (Chu Reply Decl.).) In the Reply Declaration, Mr. Chu states that he did not sign the Counter-Declaration submitted on November 1, 2013 even though Ms. Valerian asked Mr. Chu to sign the Counter-Declaration. (Chu Reply Decl., ¶ 13.) Ms. Valerian attested on the Chu Counter-Declaration: “I hereby attest that I have on file all holograph signatures for any signatures indicated by a “conformed” signature (/s/) within this e-filed document.” (Bishop Decl. Ex. B.) Mr. Chu had authorized the Counter-Declaration by phone, by writing, and by e-mail. (Valerian Decl., ¶ 33. Exs. 11-12.) Plaintiffs’ counsel filed a swift correction of the error in the Counter-Declaration that there was a “holograph signature.” (Valerian Decl., ¶ 38.)
Mr. Chu sought legal advice from Plaintiffs’ counsel, Ms. Valerian, via telephone, and subsequent email conversations contained the headings “Confidential” and “Confidential Attorney-Client Communication.” (Valerian Decl. ¶ 24.) On October 27, 2013, Ms. Valerian advised Mr. Chu that because he previously submitted a declaration to Ma Labs, he would be called in to testify. (Chu Reply Decl. Ex. C., p. 2.) Mr. Chu did not want to testify in court, so he was interested in revoking his declaration. (Ibid.) Ms. Valerian then sent Mr. Chu an email stating: “The plaintiffs in this case are trying to help the entire class, but without requiring any active participation from the employees in the class.” (Chu Reply Decl., Ex. C., p. 2.) Ms. Valerian also said in the email: “ALL inside salespeople at Ma Labs California offices, who are not supervisors, are potential California class members.” (Ibid.) She additionally stated: “Assuming the class action succeeds, you will receive financial compensation without becoming a ‘plaintiff.’ Employees in the class automatically have the status of absent class member. The concept of ‘absent class member’ is important to understand. The law protects absent class members from the burdens of litigation.” (Ibid.) She also said: “By pulling you into the case with the Declaration, Ma Labs has put burdens on you that you did no want […] Ma Labs should not surprise employees with lawsuit-related requests, without adequate advance warning and without adequate explanation about the purpose of the declaration […] Ma Labs should not prevent you from getting legal advice, before you were pressured to sign a legal document.” (Ibid.) Ms. Valerian further stated: “Also, in this case it already happened that the Judge ordered one of Ma Labs’ witnesses to show up in court to testify in person about the contents of her declaration. In contrast, if employees remained in the background as silent, absent class members, we on the Plaintiffs’ side will try to protect them from being burdened in any way.” (Ibid.) She closed by saying: “Unfortunately, we only have 5 days’ time to submit a Counter-Declaration. You can explain to the Judge that you did not consent to testify for Ma Labs, and you can correct the inaccuracies in the Declaration. Basically, this is an opportunity to correct and clarify your position.” (Ibid. p. 3.) About October 29, 2013, Ms. Valerian called Mr. Chu and told him that there was very little time to revoke his declaration. (Chu Reply Decl., ¶ 10.) Plaintiffs’ counsel repeatedly emphasized that any employee declaration should be voluntary, informed, and truthful. (Chu Reply Decl., Exs. B & C.)
Plaintiff Jian Jing Wu contacted Ms. Eve Wang and advised her to contact Ms. Valerian to discuss a potential retaliation case against Defendant. During the conversation, Ms. Valerian asked Ms. Wang to join a different but unfiled action (which would become the Lou case). Ms. Valerian also had discussions with Plaintiff Jian Jing Wu over the telephone in late 2012 and early 2013. (Bishop Dec. Ex. D.)
In the Lou case, Plaintiffs’ counsel also sent out letters to the Lou putative class members, saying that they might be owed money and that the judge will soon decide whether the case should go forward. (Bishop Decl. Ex. E.) Ms. Valerian also sent a Facebook message to one putative class member about the Lou matter and that she was representing workers in a “San Jose class action lawsuit,” even though there had been no certification by the court of the class. In addition, Plaintiffs’ counsel encouraged Jerry Darsano to participate by stating that two former account managers from his region “are participating” and identifying those managers. (Bishop Decl. Ex. M.) The email also stated that the recipient had no obligation to talk to Plaintiffs’ counsel. (Ibid.) When Mr. Darsano indicated that he did not want to participate, Plaintiffs’ counsel never contacted him again. (Valerian Decl. ¶ 18, Ex. 10.)
In the Tian case, in November 2012, the First Amended Complaint was translated into Chinese and left at Defendant’s San Jose facility. (Bishop Decl. Ex. G.) The document was not an exact translation because it contained updated contact information for Sanford Heisler’s San Francisco office as well as the addition of Chinese speaking attorney Ms. Valerian. The translated complaint was passed among the named Plaintiffs and other individuals working at the San Jose facility. (Bishop Decl. Exs. G, I, J, & K.) Named Plaintiffs contacted other employees at Ma Labs to try to persuade them to join the Tian lawsuit and promised them that they would receive money if they joined. (Bishop Decl. Exs. I, K, & O.)
Jian En Lin and Yong Song Chen had a conversation that a recording had been made of a meeting attended by Mark Musto, General Counsel for Defendant, and Ms. Helen Guan, Defendant’s HR Manager, and some Plaintiffs. (Bishop Decl. Ex. H.) Ms. Lin told Ms. Chen that Sanford Heisler played the recording at a meeting of over twenty individuals at which Ms. Lin was present. (Ibid.) Mr. Musto and Ms. Guan never consented to a recording of their meeting on July 6, 2010. (Bishop Decl. Ex. Q.) Plaintiffs and their counsel assert that they are unaware of any recording of this meeting. (Litton Decl. Ex. B-G.) Each Plaintiff was present at the meeting attests that he or she did not make any audio or video recording. (Ibid.) Chen’s declaration does not indicate when this alleged recording was made, who made the recording, or when the recording was played to Plaintiffs. (Bishop Decl. Ex. G.) Plaintiffs’ Discovery log identifies eleven allegedly privileged communications “re: consultation of recording client evaluation.” These communications take place between Marc Litton, the Discovery Referee, and Marshall Schulman, a criminal defense attorney. (Bishop Decl. Ex. V.)
Cindy Zhang is an employee of Defendant. She gave testimony in support of Plaintiffs’ motion to enjoin Defendants from speaking to its employees and stated that she was asked to sign documents in Traditional Chinese. Ms. Zhang took pictures of Ma Labs policies and procedures and removed materials from Ma Labs in 2013. (Bishop Decl. Ex. R.) She asserted attorney client privilege when she was deposed about whether or not she gave the materials to Ms. Valerian.
In June 2009, Bing Shen, one of Defendant’s former employees, filed a Division of Labor Standards Enforcement claim against Ma Labs alleging missed meal periods. (Bishop Decl. Ex. Q.) The parties settled and entered into a confidential written settlement. (Ibid.) Plaintiffs allegedly have knowledge of the terms of the confidential settlement. (Bishop Decl. Exs. G & I.) In 2010, Plaintiff Wu told Mr. Ghi Hong (“Amao”) Shau in 2010 that Shen received $7,000 in the settlement. (Bishop Decl. Ex. I.) Ms. Shen denies reveling any of the terms and conditions of the settlement. (Litton Decl. Ex. K.)
Plaintiffs’ counsel sent a letter directly to Young Song Chen, even though counsel in this matter had represented her since December 13, 2013. (Bishop Decl. Ex. W.) The letter states that it is for investigative purposes only and that the recipient is under no obligation to speak to the law firms representing Plaintiffs. (Litton Decl. Ex. A.)
On June 4, 2014, Sanford Heisler issued a press release regarding a “Rally in Support of Ma Labs’ Employees.” The press release states: “The company requires employees to work ‘off the clock,’ forces its employees to waive their wages and breaks regularly, and avoids paying wages based on actual work time.” (Request for Judicial Notice, Ex. B.) The press release does not state that these allegations have not been proven and are disputed by the company. It states that the stated claims are according to the complaint. (Ibid.)
Discussion
A court may impose restrictions on counsel communication with members of a potential class upon a showing that such communications will result in direct, immediate, and irreparable harm. (Parris v. Superior Court (2003) 109 Cal.App.4th 285, p. 300.) “Broad-based assertions that a proposed information notice is unfair, contains some inaccurate statement, or is presented in a misleading form are simply insufficient bases for imposition of judicial limitations on protected speech in the form of a prior constraint.” (Ibid.) “Absent specific evidence of abuse, an order prohibiting or limiting precertification communication with potential class members […] is an invalid prior restraint [on speech].” (Ibid. at p. 298.) Such an order must be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties and should limit speech as little as possible. (Gulf Oil Co. v. Bernanrd (1981) 452 U.S. 89, pp. 101-102.) The “mere possibility of abuses” does not justify restrictions. (Ibid. at p. 104.) A court can refuse to impute wrongdoing from one case to another. (Howard v. Sercurias Sec. Servs., USA Inc. (N.D. Ill. 2009) 630 F. Supp. 2d 905, p. 908.)
Solicitation is any communication “(1) concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and (2) Which is: (a) delivered in person or by telephone, or (b) directed by any means to a person known to the sender to be represented by counsel in a matter which is the subject of the communication. (Cal. Rule Prof. Cond. 1-400.) If the communication is not delivered in person or by telephone, then it is not prohibited under CRPC 1-400. (Parris, supra, 109 Cal.App.4th at p. 298, n. 6.)
The Court will address each factual allegation to determine if the moving party has met its legal burden in establishing that a protective order is warranted.
Chu Declaration
- False Attorney Attestation
Defendants argue that Ms. Valerian’s attestation that she had Mr. Chu’s signature was false because Mr. Chu did not sign the Counter-Declaration on November 1. In addition, Defendants assert that Ms. Valerian knew of the false attestation and failed to rectify the matter.
Plaintiffs argue that an authorization by e-mail serves in lieu of declarant’s signature under the Northern District’s rules and cities N.D. California Civil Local Rule 5-1(i)(3) (“In the case of a Signatory who is not an ECF [Electronic Case Filing] user […] the filer of the document shall attest that concurrence in the filing of the document has been obtained from each of the other Signatories, which shall serve in lieu of their signatures on the document.”). Plaintiffs also assert that they filed a swift correction of the error regarding the phrasing “holographic signatures” once they realized it.
In Defendant’s Reply, Defendant also shows that Plaintiffs failed to get the signature for another declaration submitted in this case. However, because this constitutes new evidence that was first raised in the Reply papers and not the Moving papers, the Court will not take up that issue at this time.
It is the duty of an attorney not to seek to mislead the judge by a false statement. (Cal. Bus. & Prof. Code, § 6068(d); Cal. Rule Prof. Cond. 5-200.) Filing inauthentic declarations constitutes professional misconduct and attacks the integrity of the judicial system. (In re Omnitrition International, Inc. Securities Litigation (N.D. Cal. 1994) 1994 WL 476694.) “The conduct denounced by the Business and Professions Code is not the act of an attorney by which he successfully misleads the court, but the presentation of a statement of fact, known by him to be false, which tends to do so. It is the endeavor to secure an advantage by means of falsity which is denounced.” (Vaughn v. Municipal Court of Los Angeles Judicial Dist. (1967) 252 Cal.App.2d 348, p. 358.)
The Court finds that Defendants have failed to meet their burden in establishing that Plaintiffs have violated the Business and Professions Code. The evidence shows that Plaintiffs made a mistake in using the word “holographic.” Also, Plaintiffs had the required authorization to submit the Counter-Declaration as set forth in N.D. California Civil Local Rule 5-1(i)(3), showing that Plaintiffs did not seek to mislead the Court regarding Mr. Chu’s authorization of the Declaration. Therefore, the Court finds that Defendants have not met their burden in proving that Plaintiffs sought to mislead the Court by use of a false statement.
- Misleading Statements to Procure Counter-Declaration
Defendants argue that Ms. Valerian’s communications with Mr. Chu were replete with unsupported ad hominum. Defendant also argues that because Mr. Chu never agreed to be a client of Ms. Valerian, the use of the heading “Confidential” and “Confidential Attorney-Client Communication” was misleading. Defendant also argues that it was misleading to tell Mr. Chu that being an employee in the class automatically has the status of absent class members because he was required to opt-in under the FLSA, which was asserted in the Lou case. Defendant also contends that the statements that Defendant should not prevent Mr. Chu from getting legal advice before being pressured to sign a legal declaration were misleading because they presented Mr. Chu with a Voluntary Interview Consent Form.
Plaintiffs assert that the use of the heading “Confidential” was appropriate under the circumstances because Mr. Chu sought legal advice from Ms. Valerian via telephone, and their conversations and subsequent emails were intended to be confidential. Also, Plaintiffs argue that informing a potential class member of his rights, stating deadlines of a case, and providing legal advice at the class member’s request are not misleading and coercive communications. Plaintiffs also argue that Plaintiffs’ counsel was referring to California state law claims in the email, not FLSA. Plaintiff also contends that any declaration should be voluntary, informed, and truthful.
Before a class is certified a class action, plaintiff’s counsel must abide by California’s ethical rules prohibiting false, misleading, and deceptive messages in pre-certification communications with prospective clients. (Parris, supra, 109 Cal.App.4th at p. 298, n. 6.) A client is one who seeks legal advice from an attorney. (Evid. Code, § 951.) An email communication labeled “URGENT!!” and emphasizing that “time is of the essence” to submit declaration in light of class certification deadline is not coercive. (A.R. v. Dudek (S.D. Fla. Sept. 19, 2003) 2013 U.S. Dist. LEXIS 134162.) An email cautioning that potential class members need not sign any statement or provide information to defendant is neither false nor misleading. (Johnson v. Equinox Holdings (S.D.N.Y. Apr. 28, 2014) 2014 U.S. Dist. LEXIS 58724.)
The Court finds that there is a lack of evidence to show that the statements made by Plaintiff to Mr. Chu were misleading. Mr. Chu sought legal advice, and that is enough for him to fit under the definition of a client under Evidence Code § 951. Thus, the use of the headings “Confidential” and “Confidential Attorney-Client Communication” were not improper or misleading. The email also says that the class action will be for “potential California class members.” (Bishop Decl. Ex. C., p. 2.) This statement supports the contention that the discussion was about a potential California class action and not an FLSA class action.
Telephone Communication with Jian Jing Wu
Defendant argues that because Plaintiffs’ counsel had telephone conversations with Ms. Wu about the Lou matter and initiated the discussions about the Lou matter, Plaintiffs’ counsel violated California Rule of Professional Conduct 1-400.
Plaintiffs argue that Ms. Wu initiated contact with Plaintiffs’ counsel for legal advice about a potential retaliation claim and that Plaintiffs’ counsel called on the telephone to ask follow-up questions. Plaintiffs also assert that it would have been improper for them not to ask follow-up questions or to identify legal claims, which Ms. Wu had been unaware.
Solicitation is any communication “(1) concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and (2) Which is: (a) delivered in person or by telephone, or (b) directed by any means to a person known to the sender to be represented by counsel in a matter which is the subject of the communication. (Cal. Rule Prof. Cond. 1-400(B).) A solicitation to a former or present client in the discharge of a member’s or law firm’s professional duties is not prohibited. (Cal. Rule Prof. Cond. 1-400(C).)
The Court finds that there is a lack of evidence to suggest that the communication between Ms. Wu and Plaintiffs’ counsel constituted a solicitation. Ms. Wu initiated the contact and Ms. Valerian, in the discharge of her professional duties, discussed the legal claims that Ms. Wu potential had against Defendant. Therefore, the Court cannot determine on the current factual record that the communication between Plaintiffs’ counsel and Ms. Wu rose to the level of an improper solicitation.
Solicitations by Letter and Electronic Media in Lou Case
Defendant argues that while the Lou case was pending, Plaintiffs’ counsel improperly communicated with putative class members by sending several letters that contained only Plaintiffs’ side of the story and that insinuated that the class members might be owed money. Also, Defendant alleged that Plaintiffs made improper communications through social media, i.e. Facebook..
Plaintiff argues that this does not violate the rule against solicitation because the rule only goes to telephone and in person conversations.
Mail notice and websites prepared by Plaintiffs counsel were not solicitation per Rule 1-400(B). (Parris, supra, 109 Cal.App.4th at p. 298, n. 6.) A direct invitation to potential class members to join a lawsuit is not “solicitation” if it was sent by mail. (Rand ex. Rel v. Am. Nat’l Ins. Co. (N.D. Cal. July 13, 2010) 2010 U.S. Dist. LEXIS 80246.)
The Court finds that Rule 1-400(B) does not prohibit the letter and electronic media messages because they were not made by telephone. Therefore, the Court finds that there is a lack of evidence showing that Plaintiffs’ messages were improper solicitations.
First Amendment Complaint as Improper Solicitation
Defendant argues that Plaintiffs’ counsel used the named Plaintiffs to solicit business on their behalf. Defendant asserts that leaving the FAC (translated in Chinese) with updated contact information for Sanford Heisler’s San Francisco office and the addition of Chinese speaking attorney (Ms. Valerian) was tantamount to a calling card. Defendant also argues that that the FAC referenced a right to recover $100,000 and that several employees believed that they would be entitled to $100,000 if they joined, thus misleading the employees.
Plaintiffs argue that Judge Kleinberg had already considered this argument and rejected it. Plaintiffs additionally assert that because this is a written communication, even if the FAC was a solicitation, it did not violate the rules against solicitation because it was not made by telephone or in person. Plaintiff also contends that the FAC did not promise any money to absent class members; it specified that the monetary demands were for the individual Plaintiffs. Plaintiffs also argue that sharing of the FAC, which is an open court document, is a fundamental exercise of Plaintiffs’ free speech rights.
The Court finds that because the alleged solicitation of leaving the First Amended Complaint was written instead of telephonic, Rule 1-400(B) did not prohibit it. In addition, the Court finds that there is a lack of evidence to rule that Plaintiffs purposefully left the First Amendment Complaint to mislead potential plaintiffs. A misunderstanding is not the same as a misrepresentation. Therefore, the Court finds that there is a lack of evidence that leaving the FAC at the Defendants’ workplace was a solicitation.
Named Plaintiffs contacting Ma Lab Employees to Join the Lawsuit
Defendant argues that Plaintiffs’ counsel cannot use named Plaintiffs in this action to solicit other employees to join the lawsuit when solicitation would otherwise be improper.
The evidence that Defendant points to does not show that Plaintiffs’ counsel directed the named Plaintiffs to talk about the lawsuit with other Ma Labs employees. Therefore, the Court finds that there is a lack of evidence that Plaintiffs’ counsel directed named Plaintiffs to solicit other employees.
Illegally Obtained Recording
Defendant argues that it has requested the production of the recordings and that they have been met with objections and assertions of privilege. Defendant also asserts that it has been met with silence as to the existence of the recording, and that the failure to deny the knowing of a recording is substantive evidence that Plaintiffs know it exists. Defendant also contends that Mr. Litton’s communications with Mr. Schulman about privileged communications “re: consultation of recording client evaluation” is evidence of the recording’s existence.
Plaintiffs argue that this dispute has already been presented to the Discovery Referee, who has not ruled in Defendant’s favor. Plaintiffs contend that there is lack of admissible evidence to establish the existence of an illegal recording. Plaintiffs also argue that the logic used by Defendant, to assert that because Mr. Littion sought the advice from a criminal attorney on the subject of a recording is evidence of its existence, would also support the contention that Ma Labs’ retention of Defense counsel is tantamount to an admission of liability.
The Court cannot make a ruling on this matter based on the evidentiary record on hand. Even though Mr. Musto asserts that the recording was made on their July 6, 2010 meeting, Ms. Chen’s declaration does not state that the recording was about the July 6, 2010 meeting, or why the video was played. Therefore, the Court finds that there is not enough evidence to show that there has been an improper solicitation.
Improper Use of Employees to Take Documents from Ma Labs
Defendant argues that the use of employees to gather documents and evidence to circumvent the discovery statutes is grounds to control Plaintiffs’ counsel’s contact with the class.
Plaintiffs argue that Defendant does not identify the supposedly problematic pictures or documents. Plaintiffs also contend that Defendant does not allege that Mrs. Zhang took confidential or proprietary information. Plaintiffs assert that the testimony from Mrs. Zhang came in response to a question about what she has taken from Ma Labs.
The Court finds that there is a lack of evidence connecting Plaintiffs’ counsel to the alleged taking of documents. The record does not contain an assertion that Plaintiffs’ counsel told Mrs. Zhang to take the documents. Even if Mrs. Zhang gave the documents to Plaintiffs’ counsel, that is not enough evidence to suggest that Plaintiffs’ counsel directed Mrs. Zhang to take the documents. Therefore, the Court finds that there is a lack of evidence showing an improper use of employees to take documents from Defendant.
Disclosure of Confidential Settlement Information to Solicit Putative Class Members
Defendant argues that Plaintiff Wu told several Ma Lab employees about the confidential settlement to solicit putative class members.
The Court finds that the evidence is lacking to show that Plaintiff Wu disclosed the information to solicit putative class members. The Declaration that Defendant points to states that Plaintiff Wu told Mr. Shau in 2010. However, this case was not filed until 2011. Thus, the Court does not find that there has been a disclosure of the confidential settlement information to solicit putative class members.
Plaintiffs’ Counsel Improperly Solicited a Represented Party
Defendant argues that because Plaintiff sent a letter to Young Song Chen, even though he was represented by counsel, that is improper.
Plaintiffs argue that the letter was for investigative purposes, and thus was not about representation. Also, Plaintiffs argue that Mr. Chen is a witness, not a party, and that makes the communication proper.
Attorneys cannot communicate with other parties regarding the subject of representation when the other parties are already represented. (Cal. Rule Prof. Cond. 2-100(B).)
The Court finds that Mr. Chen is not a party, and thus there was no violation of Rule 2-100(B).
June Press Release
Defendant argues that the June press release was defamatory and misleading because it did not state that the allegations had not been proven nor disputed by the company. Also, Defendant argues that the Court’s Protective Order prevents them from refuting those statements.
Plaintiffs assert that its action was a First Amendment protected activity. Plaintiff also argues that the press release summarized the claims according to the Complaint. In addition, Plaintiff argues that the Protective Order does not prevent Defendant from refuting those claims in a public forum or in the media.
The Court finds that the statements in the press release are not misleading because the press release states that the claims come from the Complaint. (Request for Judicial Notice, Ex. B.) Also, the Protective Order issued by this Court on May 27, 2014 does not prohibit Ma Labs from refuting those statements.
Conclusion
In sum, the Court finds that the moving party has not met its burden in proving that a protective order is warranted or appropriate. Clearly, there are numerous and wide-ranging allegations of inappropriate conduct made by both sides in this case. There has been a significant amount of time and resources invested in finger-pointing amongst counsel which the Court finds unnecessary, inappropriate and a distraction from the merits of the actual claims. While this Court certainly acknowledges that any inappropriate conduct by counsel should be brought to the attention of the Court, there seems to be an underlying current of distrust amongst counsel stemming from conduct in a separate lawsuit which has permeated the course of the present lawsuit. Simply put, assumptions and innuendo about what might occur based upon alleged conduct from a separate case does not merit the issuance of a protective order. With that said, the Court will remain circumspect about the propriety of the conduct of both sides to this lawsuit, but would strongly caution the parties to avoid unnecessary motion practice and focus on the merits of their respective positions. Based on the record currently before the Court, the Motion for a Protective Order is therefore DENIED.
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