Federal Deposit Insurance Corporation v. Victor R. Munoz Jr. et al
Filing
26
PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Stipulation for Protective Order 25 ; See order for details. (jy)
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VANESSA H. WIDENER (Bar No. 203967)
vhw@amclaw.com
JENNIFER S. MUSE (Bar No. 211779)
jsm@amclaw.com
ANDERSON, McPHARLIN & CONNERS LLP
444 South Flower Street
Thirty-First Floor
Los Angeles, California 90071-2901
TELEPHONE: (213) 688-0080 FACSIMILE: (213) 622-7594
6 Attorneys for Plaintiff,
FEDERAL DEPOSIT INSURANCE
7 CORPORATION as Receiver for
INDYMAC BANK, F.S.B.
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LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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13 FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for
14 INDYMAC BANK, F.S.B.,
Plaintiff,
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16
vs.
Case No. CV11-04971-ODW (SSx)
[PROPOSED]
PROTECTIVE ORDER
17 VICTOR R. MUNOZ, JR. doing
business as OVERNIGHT
18 APPRAISAL; and DOES 1 TO 5,
19
Defendants.
Trial Date: None
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Pursuant to the stipulation between plaintiff FEDERAL DEPOSIT
22 INSURANCE CORPORATION as Receiver for INDYMAC BANK, F.S.B. and
23 defendant VICTOR R. MUNOZ, JR. doing business as OVERNIGHT APPRAISAL
24 (collectively the "Parties"), and being fully advised by the Parties, and good cause
25 appearing, the Court now enters the following Protective Order:
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898318.1 5662.104
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I.
INTRODUCTION
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A.
DEFINITIONS
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1.
"Confidential Document" means any document produced that
4 bears the stamp or legend specified in Section II, Designation of Confidential
5 Information, below, which signifies that the Designating Person contends that the
6 document contains Confidential Information (as Confidential Information is defined
7 in the next paragraph) entitled to confidentiality under established principles of law.
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2.
"Confidential Information" means a trade secret or other
10 information, personal information, or information furnished to the party producing
11 the information in confidence by a third party. The following categories of
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
9 confidential commercial information, sensitive or proprietary business or financial
12 documents, while not exclusive, are deemed to contain Confidential Information:
a.
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this litigation which include the borrower's private
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information, and other confidential or proprietary business
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records.
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b.
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litigation which will include the borrower's private
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information.
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c.
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litigation which will include the borrower's private
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information.
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d.
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this litigation which will include the borrower’s private
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information, confidential business records, and other
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proprietary information.
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e.
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898318.1 5662.104
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"Loan Origination Files" for the loans at issue in
Procedure §1985.3.
"Loan Servicing Files" for the loans at issue in this
"Foreclosure Files" for the loans at issue in this
“Repurchase Demand Files” for the loans at issue in
"Personal Records" as defined by California Code of Civil
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3.
"Document" or "Documents" means all written, recorded,
2 electronic or graphic material, whether produced or created by a party or another
3 person, and whether produced pursuant to document request, subpoena, by
4 agreement, or otherwise, and includes deposition transcripts and exhibits, where
5 applicable.
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4.
"Designating Person" means the Party or Person who initially
7 produces the Document and marks it as "Confidential-Subject to Protective Order"
8 pursuant to this Protective Order.
5.
"Party" or "Parties" means any person or entity that is named as a
10 party to this litigation.
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LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
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6.
"Person" means any natural person, or any legal or business
12 entity, profit or nonprofit organization, or any government agency.
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7.
"Discovery Material" means: (a) all documents produced in this
14 action, (b) all deposition testimony taken in this action, exhibits thereto and any
15 video or transcripts thereof, whether in written or computer format; and (c)
16 responses to interrogatories, responses to requests for admission, and all other
17 written discovery served or filed in this action and all contents of such discovery.
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8.
"Disclose" means to show, give, make available, reproduce,
19 communicate or excerpt any Discovery Material, or any part or contents thereof.
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B.
GOOD CAUSE
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This action involves a dispute between plaintiff FEDERAL DEPOSIT
22 INSURANCE CORPORATION, as Receiver for INDYMAC BANK, F.S.B.
23 ("FDIC") and defendant VICTOR R. MUNOZ, JR. doing business as OVERNIGHT
24 APPRAISAL relating to four mortgage loans. The FDIC alleges that Defendant
25 prepared and submitted appraisals in connection with mortgage finance transactions
26 and that the appraisals contained various misrepresentations which were relevant to
27 the approval of the loans. Defendant disputes the contentions and further claims that
28 there are mitigating factors relating to the origination of the subject loans. As such,
898318.1 5662.104
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1 this litigation will involve the review and analysis of Loan Origination Files, Loan
2 Servicing Files, Foreclosure files, and other Personal Records of individuals who
3 applied for and obtained mortgage loans at issue. Good cause exists to grant the
4 Parties' request for a Protective Order to (1) preserve the privacy interests of third
5 party borrowers; (2) protect the confidential business records and proprietary
6 information of the plaintiff and defendants; and (3) allow the Parties to exchange
7 information in the most expeditious fashion possible, with a minimum burden,
8 expense, dispute, and delay. Pursuant to 15 U.S.C. § 6802(e)(8), the production of
10 Protective Order, shall not constitute a violation of the Gramm-Leach-Bliley Act, 15
11 U.S.C. § 6801, et seq. (Marks v. Global Mortgage Group, Inc., 218 F.R.D. 492, 496
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
9 non-public personal financial information, protected by the measures set out in this
12 (S.D. W.Va. 2003).)
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C.
SCOPE OF PROTECTIVE ORDER
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1.
This Protective Order applies to all Parties to this action and their
15 counsel as well as retained and non-retained experts and/or consultants.
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2.
Nothing in this Protective Order shall require disclosure of any
17 information or material that is protected from disclosure by any applicable privilege.
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3.
Any Party hereto may make a good faith objection to the
19 designation of any document, response, testimony, or information as "Confidential
20 Information" by the Designating Person, and may make a motion for an order
21 compelling disclosure of and/or access to such material without restriction, after
22 attempting to resolve the objection with the Designating Person. Applicable Federal
23 and/or California law shall govern the burden and standard of proof on any such
24 motion. Prior to the submission of any such dispute to the Court, the challenging
25 Party shall provide written notice to the Designating Person of its disagreement with
26 the designation, and those Persons shall try first to resolve such a dispute in good
27 faith. Pending the resolution of any such objection or motion, any Discovery
28 Material, the confidentiality of which is disputed, shall remain subject to the terms
898318.1 5662.104
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1 of this Protective Order. A Party shall not be obligated to challenge the propriety of
2 information designed as Confidential Information at the time the designation is
3 made and failure to do so shall not preclude a subsequent challenge thereto.
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4.
This Protective Order shall not abrogate or diminish any
5 contractual, statutory, or other legal obligation or right of any Party or Person with
6 respect to information designated as "Confidential Information" pursuant to this
7 Protective Order. The fact that information is or is not designated as "Confidential
8 Information" under this Protective Order shall not determine what a trier-of-fact
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5.
This Protective Order shall not govern the use by a Party of any
11 Discovery Material otherwise lawfully in its possession, notwithstanding the fact
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
9 may find to be confidential or proprietary.
12 that the Party either produces that Discovery Material in the course of discovery in
13 this action or receives a duplicate copy of that Discovery Material through discovery
14 in this action.
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6.
The Parties may agree to accord Discovery Material produced in
16 this action even greater confidentiality protection than that provided in Section II of
17 this Protective Order, and nothing in the provisions of this Protective Order shall be
18 deemed to preclude any Person from seeking and obtaining from the Court such
19 additional protection with respect to the confidentiality of Discovery Material as
20 may be appropriate or necessary.
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7.
Discovery Material shall not be disclosed to any Person or entity
22 except as expressly set forth herein. All Discovery Material produced or provided
23 by any Designating Person in connection with this litigation shall be used by the
24 Parties only for the purposes of this action, including depositions, motions, pre-trial
25 preparation, trial or appeal. Otherwise, except by order of the Court, such
26 Discovery Material shall not be used by any Party other than the producing Party for
27 any other purpose.
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898318.1 5662.104
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8.
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Inadvertent production of privileged information shall not
2 constitute a waiver of any applicable privilege. Upon written notice by the
3 producing or designating Party that privileged information was inadvertently
4 produced, all Parties shall destroy or return all copies of the information to the
5 producing or designating Party within ten (10) days of such notice.
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II.
CONFIDENTIAL INFORMATION
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A.
DESIGNATION OF CONFIDENTIAL INFORMATION
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1.
A Designating Person, who reasonably believes in good faith that
10 Document as containing such information only by: (1) Bates stamping such
11 Document; and (2) stamping such Document with the following legend:
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
9 a Document being produced contains Confidential Information, may designate such
12 "CONFIDENTIAL INFORMATION."
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2.
Failure of any Designating Person to designate Confidential
14 Information in the manner described in Paragraph 1 hereof shall not preclude any
15 Designating Person from thereafter in good faith making such a designation.
16 Documents and materials so designated shall be fully subject to this Protective
17 Order and treated thereafter according to the new or corrected designation.
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B.
QUALIFIED PERSON RE CONFIDENTIAL INFORMATION
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Any document or other Discovery Material designated as "Confidential
20 Information" may be disclosed only to the following Persons and/or entities:
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1.
The Court, its officers, jury, and any special master, referee, or
22 mediator authorized to act in this proceeding;
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2.
Counsel of record for the Parties to this action, and their
24 employees or employee equivalents (e.g., legal assistants, secretaries, clerical staff,
25 copy vendors, etc.) who are regularly employed by such counsel and who are
26 actively engaged in assisting such counsel in this action;
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3.
Court reporters, deposition reporters, and their staff, to the extent
28 necessary to perform their duties;
898318.1 5662.104
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4.
Witnesses in the course of a deposition taken in this action;
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5.
The Parties to this action, and those officers, directors, managing
3 agents, or employees of the Parties hereto who are actively engaged in the
4 preparation of this action for trial or for other resolution;
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6.
Any retained or non-retained expert and/or consultant who is
6 engaged in the preparation of this action for trial or for other resolution and who
7 agrees in writing to be bound by the confidentiality requirements of this Order.
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Prior to the provision of Confidential Information to any Person
10 Protective Order and shall be required to certify in writing as set forth in the
11 annexed ACKNOWLEDGMENT OF PROTECTIVE ORDER AND AGREEMENT
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
9 identified in Paragraph 6 hereof, such Person shall be furnished with a copy of this
12 TO BE BOUND, Exhibit A, that he or she has read the Protective Order,
13 understands it, and agrees to be bound by the terms thereof, including without
14 limitation, the obligation to protect Confidential Information from discovery by
15 unauthorized co-employees and third Persons.
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C.
LIMITED USE OF CONFIDENTIAL INFORMATION
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Documents and Discovery Material designated "Confidential
18 Information" shall be used solely for this lawsuit, and shall not be used for any other
19 purpose, including, but not limited to, any other litigation, arbitration, or claim.
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D.
FILING UNDER SEAL OF CONFIDENTIAL INFORMATION
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If a Party desires to use a Confidential Document or Confidential
22 Information in support of a motion, opposition to a motion, or other document filed
23 with the Court, the Party shall accompany its papers with an Application to file the
24 Confidential Document under seal pursuant to United States District Court, Central
25 District of California, Rule 79-5.1. The Application shall be directed to the judge to
26 whom the motion, opposition or other papers are directed. Pending the ruling on the
27 Application, the papers or portions thereof which are subject to the Application shall
28 be lodged under seal.
898318.1 5662.104
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E.
HEARING RE CONFIDENTIAL INFORMATION
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Counsel for any Party may request that any hearing or testimony with
3 respect to information that have been designated "Confidential Information" by that
4 Party shall be held in camera and the transcripts thereof sealed as provided in
5 Section II, above, such that contents thereof shall not be disclosed to anyone other
6 than the counsel, Parties, and experts hereto, pending further order of the Court.
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F.
DEPOSITIONS RE CONFIDENTIAL INFORMATION
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The Parties may use Confidential Documents and Confidential
10 other Discovery Material designated as "Confidential Information" is marked as an
11 exhibit in a deposition, or any question is asked at a deposition that calls for or
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
9 Information during depositions in this action. In the event that any document or
12 requires the disclosure of Confidential Information, any Party may request within
13 twenty (20) days after receipt of the transcript of the deposition (through written
14 notice to all Parties) that any portion of such deposition transcript relating to
15 Confidential Information be designated pursuant to this Protective Order. If the
16 designation is made after the court reporter has prepared the transcript, each counsel
17 shall be responsible for appropriately labeling all of his or her copies of such
18 deposition transcript.
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Any Party also may request at the deposition (through a notation on the
20 record) that the portion of the deposition transcript relating to such Confidential
21 Information be treated as follows:
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The reporter shall separately bind the portion(s) of the transcript
23 containing Confidential Information, and any exhibit(s) to the deposition designated
24 as "Confidential Information," and shall mark such portion(s) and exhibit(s)
25 substantially as follows:
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898318.1 5662.104
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1
CONFIDENTIAL INFORMATION
2
FDIC v. MUNOZ, et al.
3
Case No. CV11-04971-ODW (SSx)
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III.
POST-DISCOVERY TREATMENT OF DESIGNATED INFORMATION
1.
This Protective Order shall not govern at trial. The Parties to this
6 action shall attempt to agree on procedures to protect at trial the confidentiality of
7 information designated pursuant to this Protective Order and shall, prior to trial,
8 submit such proposed procedures to the Court for its approval or modification.
2.
Not later than thirty (30) days after the final disposition of this
10 litigation, including any appeals, all Discovery Material shall, at the option of the
11 Receiving Party, be returned to counsel for the Producing Party or to the
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
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12 Designating Persons or destroyed and a certificate of destruction provided. If any
13 Discovery Material is furnished under this Protective Order to any expert or to any
14 other Person, the attorney for the Party retaining such expert or furnishing the
15 Discovery Material shall be responsible to ensure that it is returned and disposed of
16 pursuant to this Protective Order.
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3.
No part of the terms of this Protective Order may be terminated,
18 except by the written stipulation executed by counsel of record for each Party, or by
19 an order of this Court for good cause shown. This Protective Order shall survive
20 any final disposition of this case, and after termination of this action, the Court shall
21 retain jurisdiction to enforce or modify this Protective Order.
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4.
If at any time any Confidential Information protected by this
23 Protective Order is subpoenaed or requested by any court, administrative or
24 legislative body, person or entity, other than a Party to this action purporting to have
25 authority to require the production of such information, the Party to whom the
26 subpoena or other request is directed shall immediately give written notice thereof to
27 any Party which has designated such information as Confidential Information so as
28 to advise such Party of the need to promptly obtain a protective order or act to quash
898318.1 5662.104
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1 the subpoena. The Party to whom the subpoena or other request is directed shall not
2 produce the Confidential information until the party seeking to maintain
3 confidentiality has had thirty (30) calendar days to obtain an appropriate order.
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IT IS SO ORDERED.
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7 DATED:_September 13, 2011___
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LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
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_/S/ Suzanne H. Segal _________
The Hon. Suzanne H. Segal
Magistrate Judge of the United States
District Court
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898318.1 5662.104
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1
EXHIBIT A
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ACKNOWLEDGMENT OF PROTECTIVE ORDER AND
AGREEMENT TO BE BOUND
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I, ______________________, declare that:
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My address is ____________________________; my present occupation is
6 ___________________________; and I am currently employed by
7 _______________________. I have been retained by ________________________
8 with respect to this litigation.
I have received a copy of the Protective Order in this action, and I have
10 carefully read and understand its provisions. I acknowledge that I am one of the
11 persons contemplated in Paragraph B.6 thereof as being able to be given access to
LAWYERS
444 SOUTH FLOWER STREET, THIRTY-FIRST FLOOR
LOS ANGELES, CALIFORNIA 90071-2901
TEL (213) 688-0080 • FAX (213) 622-7594
ANDERSON, MCPHARLIN & CONNERS LLP
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12 Confidential Information.
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I will comply with all of the provisions of the Protective Order. I will hold in
14 confidence, will not disclose to anyone other than those persons specifically
15 authorized by the Protective Order, and will not copy or use for purposes other than
16 for this lawsuit any Confidential Information that I receive in this action, except to
17 the extent that such Confidential Information is or becomes public domain
18 information or otherwise is not deemed Confidential Information in accordance with
19 the Protective Order.
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I agree to subject myself personally to the jurisdiction of the United States
21 District Court for the Central District of California for the purpose of proceedings
22 relating to my performance under, in compliance with, or violation of this Protective
23 Order.
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I understand that disclosure of Confidential Information in violation of this
25 Protective Order may constitute contempt of court.
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I declare under penalty of perjury that the foregoing is true and correct.
27 Executed:____________________
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898318.1 5662.104
_____________________________________
Print Name:___________________________
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