Branch Banking and Trust Company vs Jones/Windmill, LLC, et al., No. 2:2012cv00452 - Document 58 (D. Nev. 2013)

Court Description: CONSENT PROTECTIVE ORDER Granting 57 Defendants' Motion for Protective Order (Consent Protective Order). Signed by Magistrate Judge George Foley, Jr on 09/18/2013. (Copies have been distributed pursuant to the NEF - AC)
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Branch Banking and Trust Company vs Jones/Windmill, LLC, et al. Doc. 58 Case 2:12-cv-00452-JCM-GWF Document 57 Filed 09/17/13 Page 1 of 6 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 BRANCH BANKING & TRUST COMPANY, 4 Plaintiff, 5 CASE NO. 2:12-cv-00452-JCM-GWF CONSENT PROTECTIVE ORDER VS. 6 JONES/WINDMILL, LLC, et. al., 7 Defendants. 8 9 WHEREAS, this matter having been brought before the Court by Defendants by way of a 10 subpoena served upon the Federal Deposit Insurance Corporation, as receiver for Colonial Bank, 11 N.A. ("FDIC-R"); V 12 H; 13 WHEREAS, the FDIC-R will be producing documents (the "FDIC-R Documents") in response to said request; 14 WHEREAS, in order to expedite the flow of discovery material from FDIC-R, the FDIC- 15 R has authorized disclosure, in part, of non-redacted copies of responsive documents, which may 16 include documents containing confidential material such as, but not limited to, social security 17 numbers, account numbers, and birth dates, and may also include documents which may be 18 privileged or exempt from production on the condition that such disclosure is made strictly under 19 the terms and conditions of this consent protective order ("Consent Protective Order"); 20 WHEREAS, all parties agree that it is advisable and proper to limit further dissemination 21 of the documents produced by the FDIC-R, upon the terms and conditions set forth in this 22 Consent Protective Order; and 23 WHEREAS, the Court having found that good cause exists; 24 IT IS on this 18th day of September, 2013, 25 ORDERED: 26 I. 27 by this reference. 28 I/I 1 Recitals. The Recitals above are true, correct, accurate, and incorporated herein 1491530(8237-11) Page 1 of 6 Case 2:12-cv-00452-JCM-GWF Document 57 Filed 09/17/13 Page 2 of 6 1 2. FDIC-R Documents Confidential. All the documents produced by the FDIC-R 2 3 production. The parties, including their counsel and counsel’s personnel, may use the FDIC-R 4 Documents only for purposes of this litigation, and may disclose them to non-parties to this 5 litigation only as needed for the litigation, and only if such non-parties agree to be bound by the 6 terms of this Consent Protective Order. Should any party disagree with the confidential 7 designation of any document, he or she shall give written notice of his or her disagreement to the 8 FDIC-R, identifying the documents that the party contends are not properly designated as 9 confidential. Should the FDIC-R continue to believe such documents to be properly designated 10 as confidential, it shall have ten (10) days from receipt of the party’s notice to file a petition for a 11 protective order with the Court demonstrating that there is good cause to designate the 12 documents at issue as confidential. If a timely petition for a protective order is filed, the 13 documents at issue will be treated as confidential until a final, non-appealable order has been 14 entered or until the time to appeal an order has expired. If no petition for a protective order is 15 rID shall be deemed to be confidential documents by all parties to this proceeding upon their filed, the documents at issue will not be treated as confidential. If the parties accept the 16 designation, or contest the designation but this Court concludes that the documents should be 17 treated as confidential, the parties shall not file these documents with, or submit them to the 18 Court, or reproduce their content in any court filing unless the document or filing is placed under 19 seal or all information that would identify the subject of the document or filing has been 20 removed. 21 "- 22 III 23 HI ID 00 r- ’ Fi 24 25 26 27 28 1491530 (8237-11) Page 2 of 6 Case 2:12-cv-00452-JCM-GWF Document 57 Filed 09/17/13 Page 3 of 6 1 3. Litigation. Prior to use by any party of any of the FDIC-R Documents produced 2 pursuant to the request at trial, as an exhibit to any document, or in any other manner which 3 would allow such documents to be viewed by any person who is not a party to this Consent 4 Protective Order, such party shall first remove from any such document any and all personally 5 identifiable information such that the disclosure will conform to the laws, rules, and regulations 6 applicable to FDIC’s disclosure of such documents. Such party shall provide written notice to 7 FDIC-R of such. FDIC-R’s production of the FDIC-R Documents pursuant to this Consent 8 Protective Order shall not in any way act as a waiver of any discovery or evidentiary objections available to the FDIC-R. 10 I 11 4. Filing of Documents. The Clerk shall accept for filing under seal any document or filing marked by the parties as CONFIDENTIAL pursuant to the above paragraphs. 12 5. Return of FDIC-R Documents. The disclosure of any document which is or H’ 13 oe may be subject to a legitimate claim that the document could have been withheld from disclosure 14 as privileged material shall NOT waive any privilege or other applicable protective doctrine for 15 that document or for the subject matter of the document. Except in the event that a party 16 disputes the claim, upon written request, any documents which contain privileged material shall ’7 be promptly returned to FDIC-R or destroyed at FDIC-R’s option. This includes all copies, 18 electronic or otherwise, of any such documents. In the event that FDIC-R requests destruction, ’9 such party shall provide written certification of compliance within thirty (30) days of such 20 written request. In the event that a party disputes FDIC-R’s claim as to the protected nature of 21 the disclosed material, a single set of copies may be sequestered and retained by and under the 22 control of the party for the sole purpose of seeking court determination of the issue pursuant to 23 Federal Rule of Civil Procedure 26(b)(5)(B). rJ) 24 6. Modification Permitted. In the event a party seeks a modification that may 25 affect the FDIC-R’s rights and privileges under this Consent Protective Order it must: (a) notify 26 the FDIC-R in writing, through its undersigned counsel of the proposed modification; and (b) 27 obtain the FDIC-R’s written approval to such proposed modification to this Consent Protective 28 I Order. 1491530 (8237-11) Page 3 of 6 Case 2:12-cv-00452-JCM-GWF Document 57 Filed 09/17/13 Page 4 of 6 1 7. No Ruling on Discoverability nor Admissibility. This Consent Protective Order 2 does not constitute a ruling on the question of whether any particular material is properly 3 discoverable or admissible and does not constitute any ruling on any potential objection to the 4 discoverability of any material. 5 8. Requests by Third Parties. If any person or entity who or which is not a party to 6 7 notify the FDIC-R of such demand not less than 20 days prior to any production or deadline to 9 respond. At its option, the FDIC-R may elect to challenge the demand and assert any applicable 10 protections. The FDIC-R shall notify such party and any issuing court or tribunal of its ii challenge within such 20 day period, or such greater time as may be required by law, the 12 subpoena, or other judicial process. The burden of proving that an FDIC-R Document is entitled 13 to protection from disclosure shall lie with the FDIC-R. When such a challenge is made, no 14 party shall produce any FDIC-R Document in the absence of written consent by the FDIC-R or 15 an order by the issuing court or tribunal compelling production. In the event that any such 16 i: (including, but not limited to, any demand by subpoena or other judicial process), they shall 8 E- this Consent Protective Order demands production by a party of any FDIC-R Document production is made, all personally identifiable information shall be redacted in accordance with rl g i 17 Paragraph 3. Except as provided for herein, disclosure to third parties for purposes other than 18 preparing for discovery, motion, trial, or appeal in this action is NOT AUTHORIZED and is 19 contrary to the terms set forth herein. Furthermore, the Court may impose sanctions on any 20 individual(s) granted access to the documents who uses them for any purpose not authorized 21 herein or otherwise violates this Consent Protective Order. 22 I/I, 23 11 /// 24 11 /// 25 26 27 28 1491530 (8237-11) Page 4 of 6 Case 2:12-cv-00452-JCM-GWF Document 57 Filed 09/17/13 Page 5 of 6 1 9. Reservation of Rights. Nothing in this Consent Protective Order shall be 2 deemed to constitute a waiver of the FDIC-R’s right to assert any privilege concerning the 3 documents being produced. Specifically, the FDIC-R does not waive any statutory privilege, 4 attorney-client privilege, work-product privilege, bank examination privilege, deliberative 5 process privilege, claim of confidentiality, or that the information contained in the documents is 6 not relevant or otherwise inadmissible at trial. The FDIC-R specifically reserves the right to 7 make application(s) to the Court to amend this Consent Protective Order at any time prior to the 8 time of trial. 9 10. Return or Destruction of Confidential Material. Within ninety (90) days of the 10 11 QQ Documents and all copies, as well as all notes, memoranda, summaries, or other documents 12 H’ final conclusion of this litigation or related litigation, the parties shall return the FDIC-R containing information from the FDIC-R Documents to the FDIC-R or shall destroy them and 13 certify in writing to the FDIC-R that the documents have been destroyed. 14 11. Binding Agreement. The signatories hereto agree that this Consent Protective 15 Order is a contractual agreement and is binding upon each signatory regardless of whether it is 16 signed and entered by the Court. The FDIC-R is the intended third-party beneficiary to this 17 contract and the remedies available to it for any breach of the agreements made herein include, 18 without limitation, specific performance. 19 IT IS SO ORDERED. 20 ________________________________ GEORGE FOLEY, JR. UNITED STATES DISTRICT JUDGE United States Magistrate Judge 21 22 23 I Consent as to Form and Substance. 24 HOLLAND & PART LLP 25 9555 Hillwoo rive, 2nd Floor L a8’14 26 4/ elTo 27IBy:)(7/ / tqie . I elock, E ttoriiIfbr Plaintiff 28 1491530 (8237-11) KOLESAR & LEATHAM 400 S. Rampart Boulevard, Suite 400 Las gas,NV 89145 By: J et L. Rosales, Esq. orneys for Defendants Page 5 of 6 Case 2:12-cv-00452-JCM-GWF Document 57 Filed 09/17/13 Page 6 of 6 1 2 3 4 5 6 7 8 9 10 Ii 12 E-’ , 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28