UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
August 22, 2011
FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC BANK, F.S.B.,
MELANIE ANDERSON, AN INDIVIDUAL,
MELANIE ANDERSON DBA COTTAGE CREEK APPRAISALS, AND DOES 1 THROUGH 40, INCLUSIVE, DEFENDANTS.
STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION
I.PURPOSES AND LIMITATIONS 22
Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special 24 protection from public disclosure and from use for any purpose other than 25 prosecuting this litigation may be warranted. These documents include but are not 26 limited to Loan Origination Files, Loan Servicing Records, Foreclosure Files, Escrow Files, and "personal records" of the consumer as defined by Cal. Code of 28 Civ. Pro. §1985.3.
Good cause exists to grant the parties' request for a Protective Order.
This action involves a dispute between plaintiff FEDERAL DEPOSIT 3 INSURANCE CORPORATION, as Receiver for INDYMAC BANK, F.S.B. 4 ("FDIC") and defendant MELANIE ANDERSON, individually and doing business 5 as COTTAGE CREEK APPRAISALS (collectively "ANDERSON") regarding an 6 Uniform Residential Appraisal Report (Appraisal) prepared by ANDERSON and 7 submitted to IndyMac Bank, F.S.B. with regard to a mortgage finance transaction. 8
As such, this litigation will involve the review and analysis of Loan Origination 9 Files, Loan Servicing Files, Foreclosure files, Repurchase Demand Files, Escrow 10 Files and other Personal Records of individuals who applied for and obtained 11 mortgage loans at issue. Good cause exists to grant the parties' request for a 12 Protective Order to (1) preserve the privacy interests of third party borrowers; (2) 13 protect the confidential business records and proprietary information of the parties; 14 and (3) allow the parties to exchange information in the most expeditious fashion 15 possible, with a minimum burden, expense, dispute, and delay. 16
Accordingly, the parties hereby stipulate to and petition the court to 17 enter the following Stipulated Protective Order. The parties acknowledge that this 18 Order does not confer blanket protections on all disclosures or responses to 19 discovery and that the protection it affords from public disclosure and use extends 20 only to the limited information or items that are entitled to confidential treatment 21 under the applicable legal principles. The parties further acknowledge, as set forth 22 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 23 file confidential information under seal; Civil Local Rule 141 sets forth the 24 procedures that must be followed and the standards that will be applied when a party 25 seeks permission from the court to file material under seal. 26
2.1 Challenging Party:
A Party or Non-Party that challenges the 3 designation of information or items under this Order. 4 2.2 "CONFIDENTIAL" Information or Items: Information 5 (regardless of how it is generated, stored or maintained) or tangible things that 6 qualify for protection under Federal Rule of Civil Procedure 26(c). 7 2.3 Counsel (without qualifier): Outside Counsel of Record and 8 House Counsel (as well as their support staff). 9
2.4 Designating Party:
A Party or Non-Party that designates 10 information or items that it produces in disclosures or in responses to discovery as 11 "CONFIDENTIAL." 12
2.5 Disclosure or Discovery Material:
All items or information, 13 regardless of the medium or manner in which it is generated, stored, or maintained 14 (including, among other things, testimony, transcripts, and tangible things), that are 15 produced or generated in disclosures or responses to discovery in this matter. 16
A person with specialized knowledge or experience in a 17 matter pertinent to the litigation who has been retained by a Party or its counsel to 18 serve as an expert witness or as a consultant in this action. 19
2.7 House Counsel:
Attorneys who are employees of a party to this 20 action. House Counsel does not include Outside Counsel of Record or any other 21 outside counsel. 22
Any natural person, partnership, corporation, 23 association, or other legal entity not named as a Party to this action. 24
2.9 Outside Counsel of Record:
Attorneys who are not employees of 25 a party to this action but are retained to represent or advise a party to this action and 26 have appeared in this action on behalf of that party or are affiliated with a law firm 27 which has appeared on behalf of that party. 28
Any party to this action, including all of its officers, 2 directors, employees, consultants, retained experts, and Outside Counsel of Record 3 (and their support staffs ). 4
2.11 Producing Party:
A Party or Non-Party that produces Disclosure 5 or Discovery Material in this action. 6
2.12 Professional Vendors:
Persons or entities that provide litigation 7 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) 9 and their employees and subcontractors. 10
2.13 Protected Material:
Any Disclosure or Discovery Material that is 11 designated as "CONFIDENTIAL." 12
2.14 Receiving Party:
A Party that receives Disclosure or Discovery 13 Material from a Producing Party. 14
The protections conferred by this Stipulation and Order cover not only 16 Protected Material (as defined above), but also (1) any information copied or 17 extracted from Protected Material; (2) all copies, excerpts, summaries, or 18 compilations of Protected Material; and (3) any testimony, conversations, or 19 presentations by Parties or their Counsel that might reveal Protected Material. 20
However, the protections conferred by this Stipulation and Order do not cover the 21 following information: (a) any information that is in the public domain at the time of 22 disclosure to a Receiving Party or becomes part of the public domain after its 23 disclosure to a Receiving Party as a result of publication not involving a violation of 24 this Order, including becoming part of the public record through trial or otherwise; 25 and (b) any information known to the Receiving Party prior to the disclosure or 26 obtained by the Receiving Party after the disclosure from a source who obtained the 27 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate 2 agreement or order. 3
Even after final disposition of this litigation, the confidentiality 5 obligations imposed by this Order shall remain in effect until a Designating Party 6 agrees otherwise in writing or a court order otherwise directs. Final disposition shall 7 be deemed to be the later of (1) dismissal of all claims and defenses in this action, 8 with or without prejudice; and (2) final judgment herein after the completion and 9 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 10 including the time limits for filing any motions or applications for extension of time 11 pursuant to applicable law. 12
V.DESIGNATING PROTECTED MATERIAL 13
5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for 15 protection under this Order must take care to limit any such designation to specific 16 material that qualifies under the appropriate standards. The Designating Party must 17 designate for protection only those parts of material, documents, items, or oral or 18 written communications that qualify - so that other portions of the material, 19 documents, items, or communications for which protection is not warranted are not 20 swept unjustifiably within the ambit of this Order. 21
Mass, indiscriminate, or routinized designations are prohibited. 22 Designations that are shown to be clearly unjustified or that have been made for an 23 improper purpose (e.g., to unnecessarily encumber or retard the case development 24 process or to impose unnecessary expenses and burdens on other parties) expose the 25 Designating Party to sanctions. 26
If it comes to a Designating Party's attention that information or items 27 that it designated for protection do not qualify for protection, that Designating Party 28 must promptly notify all other Parties that it is withdrawing the mistaken 2 designation. 3
5.2 Manner and Timing of Designations.
Except as otherwise 4 provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as 5 otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 6 protection under this Order must be clearly so designated before the material is 7 disclosed or produced. 8
Designation in conformity with this Order requires:
(a) For information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions or other pretrial or trial 11 proceedings), that the Producing Party affix the legend "CONFIDENTIAL" to each 12 page that contains protected material. If only a portion or portions of the material on 13 a page qualifies for protection, the Producing Party also must clearly identify the 14 protected portions) (e.g., by making appropriate markings in the margins ). 15
A Party or Non-Party that makes original documents or materials 16 available for inspection need not designate them for protection until after the 17 inspecting Party has indicated which material it would like copied and produced. 18
During the inspection and before the designation, all of the material made available 19 for inspection shall be deemed "CONFIDENTIAL." After the inspecting Party has 20 identified the documents it wants copied and produced, the Producing Party must 21 determine which documents, or portions thereof, qualify for protection under this 22 Order. Then, before producing the specified documents, the Producing Party must 23 affix the "CONFIDENTIAL" legend to each page that contains Protected Material. 24
If only a portion or portions of the material on a page qualifies for protection, the 25 Producing Party also must clearly identify the protected portions) (e.g., by making 26 appropriate markings in the margins). 27
(b) For testimony given in deposition or in other pretrial or trial 2 proceedings, that the Designating Party identify on the record, before the close of 3 the deposition, hearing, or other proceeding, all protected testimony. 4
(c) For information produced in some form other than documentary 5 and for any other tangible items, that the Producing Party affix in a prominent place 6 on the exterior of the container or containers in which the information or item is 7 stored the legend "CONFIDENTIAL." If only a portion or portions of the 8 information or item warrant protection, the Producing Party, to the extent 9 practicable, shall identify the protected portion(s). 10
5.3 Inadvertent Failures to Designate.
If timely corrected, an 11 inadvertent failure to designate qualified information or items does not, standing 12 alone, waive the Designating Party's right to secure protection under this Order for 13 such material. Upon timely correction of a designation, the Receiving Party must 14 make reasonable efforts to assure that the material is treated in accordance with the 15 provisions of this Order. 16
VI.CHALLENGING CONFIDENTIALITY DESIGNATIONS 17
6.1 Timing of Challenges.
Any Party or Non-Party may challenge a 18 designation of confidentiality at any time. Unless a prompt challenge to a 19 Designating Party's confidentiality designation is necessary to avoid foreseeable, 20 substantial unfairness, unnecessary economic burdens, or a significant disruption or 21 delay of the litigation, a Party does not waive its right to challenge a confidentiality 22 designation by electing not to mount a challenge promptly after the original 23 designation is disclosed. 24
6.2 Meet and Confer.
The Challenging Party shall initiate the 25 dispute resolution process by providing written notice of each designation it is 26 challenging and describing the basis for each challenge. To avoid ambiguity as to 27 whether a challenge has been made, the written notice must recite that the challenge 28 to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith 2 and must begin the process by conferring directly (in voice to voice dialogue; other 3 forms of communication are not sufficient) within 14 days of the date of service of 4 notice. In conferring, the Challenging Party must explain the basis for its belief that 5 the confidentiality designation was not proper and must give the Designating Party 6 an opportunity to review the designated material, to reconsider the circumstances, 7 and, if no change in designation is offered, to explain the basis for the chosen 8 designation. A Challenging Party may proceed to the next stage of the challenge 9 process only if it has engaged in this meet and confer process first or establishes that 10 the Designating Party is unwilling to participate in the meet and confer process in a 11 timely manner. 12
6.3 Judicial Intervention.
If the Parties cannot resolve a challenge 13 without court intervention, the Designating Party shall file and serve a motion to 14 retain confidentiality under Civil Local Rule 230 (and in compliance with Civil 15 Local Rule 141, if applicable) within 21 days of the initial notice of challenge or 16 within 14 days of the parties agreeing that the meet and confer process will not 17 resolve their dispute, whichever is earlier. Each such motion must be accompanied 18 by a competent declaration affirming that the movant has complied with the meet 19 and confer requirements imposed in the preceding paragraph. Failure by the 20 Designating Party to make such a motion including the required declaration within 21 21 days (or 14 days, if applicable) shall automatically waive the confidentiality 22 designation for each challenged designation. In addition, the Challenging Party may 23 file a motion challenging a confidentiality designation at any time if there is good 24 cause for doing so, including a challenge to the designation of a deposition transcript 25 or any portions thereof. Any motion brought pursuant to this provision must be 26 accompanied by a competent declaration affirming that the movant has complied 27 with the meet and confer requirements imposed by the preceding paragraph. 28
The burden of persuasion in any such challenge proceeding shall be on 2 the Designating Party. Frivolous challenges, and those made for an improper 3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 4 parties) may expose the Challenging Party to sanctions. Unless the Designating 5 Party has waived the confidentiality designation by failing to file a motion to retain 6 confidentiality as described above, all parties shall continue to afford the material in 7 question the level of protection to which it is entitled under the Producing Party's 8 designation until the court rules on the challenge. 9
VII.ACCESS TO AND USE OF PROTECTED MATERIAL 10
7.1 Basic Principles.
A Receiving Party may use Protected Material 11 that is disclosed or produced by another Party or by a Non-Party in connection with 12 this case only for prosecuting, defending, or attempting to settle this litigation. Such 13 Protected Material may be disclosed only to the categories of persons and under the 14 conditions described in this Order. When the litigation has been terminated, a 15 Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 17
Protected Material must be stored and maintained by a Receiving Party 18 at a location and in a secure manner that ensures that access is limited to the persons 19 authorized under this Order. 20
7.2 Disclosure of "CONFIDENTIAL" Information or Items.
Unless 21 otherwise ordered by the court or permitted in writing by the Designating Party, a 22 Receiving Party may disclose any information or item designated 23 "CONFIDENTIAL" only to: 24
(a) the Receiving Party's Outside Counsel of Record in this action, 25 as well as employees of said Outside Counsel of Record to whom it is reasonably 26 necessary to disclose the information for this litigation and who have signed the 27 "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) 2 of the Receiving Party to whom disclosure is reasonably necessary for this litigation 3 and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 5
(c) Experts (as defined in this Order) of the Receiving Party to 6 whom disclosure is reasonably necessary for this litigation and who have signed the 7 "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is 11 reasonably necessary for this litigation and who have signed the "Acknowledgment 12 and Agreement to Be Bound" (Exhibit A); 13
(f) during their depositions, witnesses in the action to whom 14 disclosure is reasonably necessary and who have signed the "Acknowledgment and 15 Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating 16 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits 17 to depositions that reveal Protected Material must be separately bound by the court 18 reporter and may not be disclosed to anyone except as permitted under this 19 Stipulated Protective Order. 20
(g) the author or recipient of a document containing the information 21 or a custodian or other person who otherwise possessed or knew the information. 22
VIII.PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other 24 litigation that compels disclosure of any information or items designated in this 25 action as "CONFIDENTIAL," that Party must:
(a) promptly notify in writing the Designating Party. Such 27 notification shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or 2 order to issue in the other litigation that some or all of the material covered by the 3 subpoena or order is subject to this Protective Order. Such notification shall include 4 a copy of this Stipulated Protective Order; and 5
(c) cooperate with respect to all reasonable procedures sought to be 6 pursued by the Designating Party whose Protected Material may be affected. 7
If the Designating Party timely seeks a protective order, the Party 8 served with the subpoena or court order shall not produce any information 9 designated in this action as "CONFIDENTIAL" before a determination by the court 10 from which the subpoena or order issued, unless the Party has obtained the 11 Designating Party's permission. The Designating Party shall bear the burden and 12 expense of seeking protection in that court of its confidential material and nothing in 13 these provisions should be construed as authorizing or encouraging a Receiving 14 Party in this action to disobey a lawful directive from another court.
IX.A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced 17 by a Non-Party in this action and designated as "CONFIDENTIAL." Such 18 information produced by Non-Parties in connection with this litigation is protected 19 by the remedies and relief provided by this Order. Nothing in these provisions 20 should be construed as prohibiting a Non-Party from seeking additional protections. 21
(b) In the event that a Party is required, by a valid discovery request, 22 to produce a Non-Party's confidential information in its possession, and the Party is 23 subject to an agreement with the Non-Party not to produce the Non-Party's 24 confidential information, then the Party shall: 25
1. promptly notify in writing the Requesting Party and the Non- Party that some or all of the information requested is subject to a confidentiality 27 agreement with a Non-Party; 28
2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a 3 reasonably specific description of the information requested; and 4
3. make the information requested available for inspection by the Non-Party. 6
(c) If the Non-Party fails to object or seek a protective order from 7 this court within 14 days of receiving the notice and accompanying information, the 8 Receiving Party may produce the Non-Party's confidential information responsive to 9 the discovery request. If the Non-Party timely seeks a protective order, the 10 Receiving Party shall not produce any information in its possession or control that is 11 subject to the confidentiality agreement with the Non-Party before a determination 12 by the court.*fn1 Absent a court order to the contrary, the Non-Party shall bear the 13 burden and expense of seeking protection in this court of its Protected Material. 14
X.UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15
If a Receiving Party learns that, by inadvertence or otherwise, it has 16 disclosed Protected Material to any person or in any circumstance not authorized 17 under this Stipulated Protective Order, the Receiving Party must immediately (a) 18 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 19 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 20 the person or persons to whom unauthorized disclosures were made of all the terms 21 of this Order, and (d) request such person or persons to execute the 22 "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A. 24 25
XI.INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain 3 inadvertently produced material is subject to a claim of privilege or other protection, 4 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 5 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 6 procedure may be established in an e-discovery order that provides for production 7 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 8 (e), insofar as the parties reach an agreement on the effect of disclosure of a 9 communication or information covered by the attorney-client privilege or work 10 product protection, the parties may incorporate their agreement in the stipulated 11 protective order submitted to the court. 12
12.1 Right to Further Relief.
Nothing in this Order abridges the right 14 of any person to seek its modification by the court in the future.
12.2 Right to Assert Other Objections.
By stipulating to the entry of 16 this Protective Order no Party waives any right it otherwise would have to object to 17 disclosing or producing any information or item on any ground not addressed in this 18 Stipulated Protective Order. Similarly, no Party waives any right to object on any 19 ground to use in evidence of any of the material covered by this Protective Order. 20
12.3 Filing Protected Material.
Without written permission from the Designating Party or a court order secured after appropriate notice to all interested 22 persons, a Party may not file in the public record in this action any Protected 23 Material. A Party that seeks to file under seal any Protected Material must comply 24 with Civil Local Rule 141. Protected Material may only be filed under seal pursuant 25 to a court order authorizing the sealing of the specific Protected Material at issue. 26
Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request 27 establishing that the Protected Material at issue is privileged, protectable as a trade 28 secret, or otherwise entitled to protection under the law. If a Receiving Party's 2 request to file Protected Material under seal pursuant to Civil Local 3 Rule 141 is denied by the court, then the Receiving Party may file the information in 4 the public record unless otherwise instructed by the court. 5
XIII.FINAL DISPOSTION 6
Within 60 days after the final disposition of this action, as defined in 7 paragraph 4, the Producing Party shall send a letter to each Receiving Party 8 requesting (1) the return of all Protected Material to the Propounding Party or (2) the 9 destruction of all Protected Material ("Demand Letter"). As used in this 10 subdivision, "all Protected Material" includes all copies, abstracts, compilations, 11 summaries, and any other format reproducing or capturing any of the Protected 12 Material. Whether the Protected Material is returned or destroyed, the Receiving 13 Party must submit a written certification to the Producing Party (and, if not the same 14 person or entity, to the Designating Party) within 30 days of receipt of Demand 15 Letter that (1) identifies (by category, where appropriate) all the Protected Material 16 that was returned or destroyed and (2)affirms that the Receiving Party has not 17 retained any copies, abstracts, compilations, summaries or any other format 18 reproducing or capturing any of the Protected Material. Notwithstanding this 19 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 20 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 21 deposition and trial exhibits, expert reports, attorney work product, and consultant 22 and expert work product, even if such materials contain Protected Material. Any 23 such archival copies that contain or constitute Protected Material remain subject to 24 this Protective Order as set forth in Section 4. 25
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: August 16, 2011 ANDERSON, McPHARLIN & CONNERS LLP /s/ Jennifer S. Muse /s/ By: Vanessa H. Widener Jennifer S. Muse Attorneys for Plaintiff FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for INDYMAC BANK, F.S.B. DATED: August 15, 2011 ERICKSEN ARBUTHNOT /s/ Mark S. Tratten /s/ By: Mark S. Tratten Nou Lee Attorneys for Defendant MELANIE ANDERSON
ACKNOWLEDGMENT OF PROTECTIVE ORDER AND
AGREEMENT TO BE BOUND
I, ______________________, declare that:
My address is ________________________; my present occupation is ___________________; and I am currently employed by _________________. I 6 have been retained by _________________ with respect to this litigation. 7
I have received a copy of the Stipulated Protective Order in this action, and I 8 have carefully read and understand its provisions. I acknowledge that I am one of 9 the persons contemplated as being able to be given access to "CONFIDENTIAL" 10 Information or Item. 11
I will comply with all of the provisions of the Stipulated Protective Order. I 12 will hold in confidence, will not disclose to anyone other than those persons 13 specifically authorized by the Stipulated Protective Order, and will not copy or use 14 for purposes other than for this lawsuit any "CONFIDENTIAL" Information or Item 15 that I receive in this action, except to the extent that such "CONFIDENTIAL" 16 Information or Item is, or becomes, public domain information or otherwise is not 17 deemed "CONFIDENTIAL" Information or Item in accordance with the Stipulated 18 Protective Order. 19
I agree to subject myself personally to the jurisdiction of the United States District Court for the Central District of California for the purpose of proceedings 21 relating to my performance under, in compliance with, or violation of this Stipulated 22 Protective Order. 23
I understand that disclosure of CONFIDENTIAL Information or Item in 24 violation of this Stipulated Protective Order may constitute contempt of court. 25
I declare under penalty of perjury that the foregoing is true and correct.