Allstate Insurance Company et al v. Countrywide Financial Corp. et al

Filing 270

ORDER GOVERNING THE TREATMENT OF CONFIDENTIAL DISCOVERY MATERIAL by Judge Mariana R. Pfaelzer: Upon Stipulation 266 , IT IS HEREBY ORDERED that: The Order Governing the Treatment of Confidential Discovery Material shall govern the disclosure and use of Confidential Discovery Material and all other discovery material, etc. See document for details. (gk)

1 Brian E. Pastuszenski (pro hac vice)
[e-mail]
2 Inez H. Friedman-Boyce (pro hac vice)
[e-mail]
3 GOODWIN PROCTER LLP
Exchange Place
4 Boston, MA 02109-2802
Tel.: [phone]
5 Fax: [phone]
6 John O. Farley (pro hac vice)
[e-mail]
7 GOODWIN PROCTER LLP
620 Eighth Avenue
8 New York, NY 10018
Tel.: [phone]
9 Fax: [phone]
10 Daniel J. Tyukody (SBN 123323)
dtyukody @goodwinprocter.com
11 GOODWIN PROCTER LLP
601 South Figueroa Street, 41st Floor
12 Los Angeles, California 90017
Tel.: [phone]
13 Fax: [phone]
14 Attorneys for Defendants
Countrywide Financial Corporation, Countrywide
15 Securities Corporation, Countrywide Capital
Markets, LLC, Countrywide Home Loans, Inc.,
16 CWALT, Inc., CWABS, Inc., CWMBS, Inc., and
CWHEQ, Inc.
17
UNITED STATES DISTRICT COURT
18
CENTRAL DISTRICT OF CALIFORNIA
19
20 In Re: Countrywide Financial
Corporation Mortgage-Backed Securities
21 MDL

2:11-ml-2265-MRP-(MANx)

22

ORDER GOVERNING THE
TREATMENT OF
CONFIDENTIAL DISCOVERY
MATERIAL

23
24
25

MDL No. 2265

Courtroom: 12
Judge:
Hon. Mariana R. Pfaelzer

26
27
28
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 ALLSTATE INSURANCE COMPANY,
et al.,
2
Plaintiffs,
3
v.
4
COUNTRYWIDE FINANCIAL
5 CORPORATION, et al.,

2:11-cv-005236-MRP (MANx)

Defendants.

6
7
8
9

BANK HAPOALIM B.M.,
Plaintiff,

10
11

2:12-cv-04316-MRP (MANx)

v.

12

BANK OF AMERICA CORPORATION,
13 et al.,
14
Defendants.
15
16 MINNESOTA LIFE INSURANCE
COMPANY, et al.,
17
Plaintiffs,
18
v.
19
COUNTRYWIDE FINANCIAL
20 CORPORATION, et al.,
21

2:12-cv-06149-MRP (MANx)

Defendants.

22
23
24
25
26
27
28
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 NATIONAL INTEGRITY LIFE
INSURANCE COMPANY,
2
Plaintiff,
3
v.
4
COUNTRYWIDE FINANCIAL
5 CORPORATION, et al.,

2:11-cv-09889-MRP (MANx)

Defendants.

6
7
8

FEDERAL DEPOSIT INSURANCE
9 CORPORATION AS RECEIVER FOR
UNITED WESTERN BANK, F.S.B.
10
Plaintiff,
11
12

2:11-cv-10400-MRP (MANx)

v.

13
COUNTRYWIDE FINANCIAL
14 CORPORATION, et al.,
15
Defendants.
16
MASSACHUSETTS MUTUAL LIFE
17 INSURANCE COMPANY,
Plaintiff,

18
19

2:11-cv-10414-MRP (MANx)

v.

20 COUNTRYWIDE FINANCIAL
CORPORATION, et al.,
21
Defendants.
22
23
24
25
26
27
28
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

After consideration of the terms of the foregoing Stipulation Regarding

2 Governing of the Treatment of Confidential Discovery Material (“Stipulation”), and
3 good cause appearing therefore,
4

IT IS HEREBY ORDERED that:

5

1.

The Order Governing the Treatment of Confidential Discovery

6 Material (the “Order”) shall govern the disclosure and use of Confidential Discovery
7 Material (as defined below) and all other discovery material (as applicable) provided
8 during the course of the above-captioned actions (the “Actions”), by the Parties to
9 the Actions or by nonparties, either voluntarily or as required by requests for
10 discovery made pursuant to the Federal Rules of Civil Procedure, by subpoena, or
11 by order of the Court.
12

2.

Nothing in the Order shall apply to documents, information, material,

13 or any portion thereof obtained by any Receiving Person on a non-confidential basis
14 from an unrelated person or entity (“Independently Obtained Documents”), provided
15 that if an Independently Obtained Document duplicates, in whole or in part,
16 documents produced to the Receiving Person and designated as Confidential
17 Discovery Material, and the Independently Obtained Document was obtained
18 directly or indirectly by the unrelated person or entity as a result of discovery from
19 any Producing Person or affiliated person or entity in any litigation or proceeding
20 involving any Party or affiliated person or entity, such Independently Obtained
21 Document, or the duplicative portion thereof, shall be treated by the Receiving
22 Person as Confidential Discovery Material. Nothing in this paragraph shall be
23 deemed to relieve any unrelated person or entity from complying with its obligations
24 under any agreement or court order that is otherwise applicable to that person or
25 entity.
26

3.

As used in the Order, “person” includes any individual, entity, natural

27 person, or any business, legal or governmental entity or association. “Producing
28 Person” refers to any person that produces discovery material. “Receiving Person”
1
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 refers to any person that receives discovery material subject to the Order.
2

4.

The Order designates as “Confidential Discovery Material” documents

3 or discovery responses that may be produced during discovery that are designated as
4 such by a Producing Person because they contain any of the following: confidential,
5 sensitive, or nonpublic financial information and statements; proprietary business
6 information, including business plans and records of internal deliberations and
7 decision-making; policies and procedures not generally published, including those
8 concerning business operations, employee benefits and risk management
9 procedures; surveys concerning customers, competitors and employees; and
10 individual personal information that is protected from disclosure under state or
11 federal law, including identifying personal information and personal financial
12 information, about any Party, any employee of any Party, or any nonparty. It is
13 possible that disclosure of this Confidential Discovery Material may cause harm to
14 the Producing Persons and their employees, as well as to nonparties.
15

The Order also designates as “Confidential Discovery Material” any

16 document or other discovery material produced in the Actions pursuant to an
17 agreement or order requiring the reproduction of such discovery material from other
18 litigations or proceedings (the “Reproduced Discovery Material”) where such
19 Reproduced Discovery Material was marked or designated confidential (or a similar
20 designation) in the litigation or proceeding in which such Reproduced Discovery
21 Material was originally produced.
22

As required by plaintiff Federal Deposit Insurance Corporation (“FDIC”) in

23 its capacity as Receiver for United Western Bank1 (“FDIC-R”), Confidential
24 Discovery Material shall also include the following in Federal Deposit Insurance
25 Corporation as Receiver for United Western Bank, F.S.B. v. Countrywide Financial
26 Corp., et al. (Case No. 2:11-cv-10400):
27
28

(a)
1

Regulatory information: Material related in any way to the

United Western Bank is referred to in this Order as “the Bank”.
2
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

regulation or supervision of the Bank, in whatever form, whether preliminary

2

or final, including reports of examination or inspection, regulatory

3

correspondence, reports, orders, memoranda, or agreements by, from or with

4

the FDIC, the board of Governors of the Federal Reserve System, the Office

5

of Financial and Insurance Regulation (“OFIR”), or any other federal or state

6

regulatory authority, and any documents containing confidential information

7

obtained from any documents or records related to the supervision or

8

regulation of the Bank. The release of any such regulatory documents may

9

require prior approval from other government agencies, including but not

10

limited to the FDIC in its corporate capacity (“FDIC-C”). No regulatory

11

material, however obtained, shall be disclosed to anyone other than the Parties

12

and other persons or entities identified in paragraph 10 below without prior

13

approval by the respective regulatory authority or a court order. Confidential

14

Discovery Material also includes documents that are exempt from disclosure

15

as provided in the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), the

16

regulations governing the disclosure of information, 12. C.F.R. Parts 261 and

17

309, the laws of the State of Texas, or any other applicable federal or state

18

laws.

19

(b)

Information Protected by Law: Any information that a disclosing

20

party is obligated by law to keep confidential, including but not limited to,

21

nonpublic personal information such as social security numbers, home

22

telephone numbers and addresses, tax returns, medical information, credit

23

information, banking information, documents or data that constitute

24

“consumer reports,” as that term is defined in the Fair Credit Reporting Act,

25

15 U.S.C. § 1681a, and other sensitive personally identifiable information,

26

other than information for which applicable federal or state law requires

27

confidential treatment, and/or “Nonparty Borrower Information,” which for

28

purposes of this Order shall mean any information that constitutes “nonpublic
3
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

personal information” within the meaning of Section 509(4) of the Gramm-

2

Leach-Bliley Act, 15 U.S.C. § 6809 and its implementing regulations,

3

including, but not limited to, any portion of a mortgage loan file or other

4

document that includes financial or credit information for any person

5

(including any credit history, report, or score obtained on any such person to

6

determine the individual’s eligibility for credit) together with personally

7

identifiable information with respect to such person, including, but not limited

8

to, name, address, social security number, loan numbers, telephone number,

9

or place or position of work. As set forth in paragraph 25 below, this Order

10

authorizes the disclosure of such Nonparty Borrower Information in the

11

above-captioned action.

12

(c)

Bank Information: Material related to the Bank, including but not

13

limited to: chargebacks, merchant processing , bank account information,

14

customer bank records, signature cards, bank statements, general ledger

15

entries, deposit or reserve information, trading statements and records, loans

16

and lending transactions, loan applications, financial statements and credit

17

reports, business and personal state and federal income tax forms,

18

correspondence, and loan documentation relating to any extension of credit or

19

loan to any borrower.

20

(d)

Receivership Information: Material related to the receivership of

21

the Bank, including any information on loss or estimates of such loss on the

22

Bank’s assets that is not publicly available. Notwithstanding any other

23

provision of this Order, no confidential material shall be disclosed to any

24

person or entity known to have any current or prospective interest in such

25

assets, whether or not that person or entity would otherwise be allowed access

26

to material under the terms of this Order.

27
28

(e)

Trade Secret/Proprietary Information: Material that the

producing party reasonably believes constitutes, reflects, or discloses trade
4
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

secrets, proprietary data or commercially sensitive information.

2

(f)

Except as provided by the express terms of this Order, all

3

persons subject to this Order shall refrain from disclosing in any manner any

4

information set forth in any confidential material. However, the transmission

5

of confidential material between the FDIC-R and the FDIC acting in any

6

other capacity shall not constitute a violation of this paragraph or of any other

7

provision of this Order. Any confidential material transmitted among various

8

capacities of the FDIC shall remain subject to this Order and its prohibition

9

on disclosure.

10

(g)

Nothing in paragraphs 4(a)-(g) or any other provision of this

11

Order, shall constitute a waiver by FDIC, FDIC-R, FDIC-C or FDIC in any

12

other capacity, of any privilege, doctrine or other objection to production of

13

any Regulatory Information, Information Protected by Law, Bank

14

Information, Receivership Information, Trade Secret/Proprietary Information

15

or any other Information.

16

5.

Further, this Protective Order permits the designation as “Confidential

17 – Attorneys and Experts Only” of documents or information produced during
18 discovery that contain sensitive, proprietary, confidential, and personal information
19 which a Producing Person in good faith believes constitute Confidential Discovery
20 Material but for which “Confidential Discovery Material” status may not provide
21 sufficient protection. Material that is designated “Confidential – Attorneys and
22 Experts Only” shall be subject to all the protective terms applicable to “Confidential
23 Discovery Material” as well as the more protective measures expressly set forth
24 herein. The limitations set forth under this paragraph shall only be modified by
25 agreement among the Parties and Order of the Court.
26

The Order hereby designates as “Confidential – Attorneys and Experts Only”

27 any Reproduced Discovery Material where such Reproduced Discovery Material
28 was marked or designated highly confidential (or a similar designation) in the
5
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 litigation or proceeding in which such Reproduced Discovery Material was
2 originally produced.
3

6.

All documents designated as Confidential Discovery Material shall be

4 so designated, by Bates range, in a letter accompanying their production to a
5 Receiving Person, and/or by stamping the media in which the documents are
6 transmitted, and/or by stamping each page of a document “CONFIDENTIAL,”
7 “CONFIDENTIAL DISCOVERY MATERIAL,” or “CONFIDENTIAL
8 TREATMENT REQUESTED BY [name of the Producing Person].” Documents
9 may be designated as Confidential Discovery Material at any time. Without limiting
10 the foregoing sentence in any way, a Producing Person may designate a document as
11 Confidential Discovery Material after it was earlier produced without such a
12 designation, and such production, in and of itself, shall not prejudice or otherwise
13 constitute a waiver of, or estoppel as to, any claim of confidentiality to which the
14 Producing Person would otherwise be entitled. Any documents designated as
15 Confidential Discovery Material prior to entry of this Order shall be treated the
16 same in all respects as documents designated as Confidential Discovery Material
17 after the entry of this Order. This Order also treats as Confidential Discovery
18 Material oral communications designated as confidential either orally (provided that
19 such designation was recorded by a court reporter) or in writing. Materials
20 designated as CONFIDENTIAL pursuant to this Order shall be designated and
21 marked as follows:
22

(a)

Documents or TIFF Images: Documents or TIFF

23

images may be designated as Confidential Discovery Material or

24

Highly Confidential Discovery Material by placing the legend

25

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” or an equivalent

26

thereof, on any such document or image. Unless the Parties otherwise

27

agree, such legend shall be placed upon every page of each document

28

or image containing CONFIDENTIAL INFORMATION or HIGHLY
6
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

CONFIDENTIAL INFORMATION. In lieu of marking the originals

2

of documents, the disclosing party may mark the copies that are

3

produced or exchanged. Notwithstanding the foregoing, Excel

4

documents or any other type of electronically stored information

5

produced in native format (together, “Natively Produced ESI”)

6

containing CONFIDENTIAL INFORMATION or HIGHLY

7

CONFIDENTIAL INFORMATION need not be produced using a

8

means sufficient to ensure that every page of such document, when

9

printed, contains the appropriate mark or stamp. Instead, the disclosing

10

party shall use reasonable means to designate as “CONFIDENTIAL” or

11

“HIGHLY CONFIDENTIAL” such Natively Produced ESI, including,

12

where applicable and/or practicable, by (i) producing a TIFF

13

placeholder image corresponding to the Natively Produced ESI that

14

includes the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”

15
16
17
18
19

mark; (ii) including “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” in the file name of the Natively Produced ESI; or
(iii) including “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
on the label of the media or in the production letter for the Natively
Produced ESI.

20
21
22
23
24
25
26
27
28

(b)

Non-Paper Media: Where CONFIDENTIAL

INFORMATION or HIGHLY CONFIDENTIAL INFORMATION is
produced in a non-paper medium (e.g., video tape, audio tape,
computer disks, etc.) that does not include TIFF images, the appropriate
confidentiality notice as described in paragraph 4(a) above should be
placed on the medium, if possible, and its container, if any, so as to
give clear notice of the designation. To the extent that any receiving
party prints any of the information contained on non-paper media that
7
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

is designated as containing CONFIDENTIAL INFORMATION or

2

HIGHLY CONFIDENTIAL INFORMATION, such printouts will be

3
4

marked as described in paragraph 4(a) above by the receiving party.
(c)
Physical Exhibits: The confidential or highly

5

confidential status of a physical exhibit shall be indicated by placing a

6

label on said physical exhibit with the appropriate confidentiality notice

7

as described in paragraph 4(a) above.

8

(d)

9

Written Discovery: In the case of

CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL

10

INFORMATION incorporated in answers to interrogatories, responses

11

to requests for admission, or other written discovery, the appropriate

12

confidentiality designation as described in paragraph 4(a) above shall

13

be placed on the first page of the document and on each page

14

containing answers or responses that contain CONFIDENTIAL

15

INFORMATION or HIGHLY CONFIDENTIAL INFORMATION.

16

7.

Confidential Discovery Material also includes those portions of any

17 notes, work papers or other work product that contain information from documents
18 designated as Confidential Discovery Material without the need for a separate
19 confidential designation on the notes, work paper, or other work product.
20

8.

If discovery material is inspected at the Producing Person’s choice of

21 location, all such discovery material shall be presumed at such inspection to have
22 been designated as Confidential Discovery Material by the Producing Person until
23 such time as the Producing Person provides copies to the Party that requested the
24 discovery material. Production of Confidential Discovery Material for inspection
25 and copying shall not constitute a waiver of confidentiality.
26

9.

Nonparty Borrower Information Designation. The Parties have agreed

27 to produce or have served or intend to serve document requests, interrogatories or
28 other requests, and/or have issued or intend to issue subpoenas to nonparties for
8
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 documents and other information, which require production of certain records
2 relating to individual mortgage loans (“loan files”) and/or to the servicing of those
3 loans (“servicing records”). The loan files, servicing records, and related documents
4 contain non-public personal information and/or other sensitive personally
5 identifying information pertaining to individual borrowers, and information that
6 constitutes “nonpublic personal information” within the meaning of the Gramm
7 Leach Bliley Act, 15 U.S.C. § 6802, et seq. and its implementing regulations,
8 including, but not limited to, any portion of a loan file or other document which
9 includes financial and/or credit information pertaining to individual borrowers
10 (including any credit history, report or score obtained on any such borrowers to
11 determine the individual’s eligibility for credit) together with personally identifying
12 information with respect to such borrowers, which may include, but is not limited to,
13 names, addresses, Social Security numbers, telephone numbers, and places or
14 positions of work (“Nonparty Borrower Information”).
15

(a)

Any Person (including nonparties) producing materials through

16

discovery may designate loan files, servicing records, or related documents

17

that it discloses during discovery in this matter, including, but not limited to,

18

the Nonparty Borrower Information contained therein, as Confidential

19

Discovery Material because the materials constitute, contain, reveal or

20

evidence “non-public personal information.”

21

(b)

Any Person (including nonparties) receiving non-public personal

22

information consisting of, derived from, or related to loan files or servicing

23

records produced in discovery, regardless of whether such material is

24

designated with the appropriate designation, shall use that material solely for

25

the purpose of conducting these Actions. Notwithstanding the foregoing,

26

nothing in this Order shall require any Receiving Person to disregard or

27

violate any order, direction, or regulatory requirement of any governmental

28

authority, subject to the provisions set forth in paragraph 16.
9
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

(c)

In order to expedite production of loan files and servicing

2

records, a Producing Person may, at its sole option, produce materials without

3

a detailed or any review, subject to the “clawback” procedures in this Order

4

(paragraph 17) or as otherwise agreed to. In doing so, the Producing Person

5

may designate the contents of loan files, servicing records, or related

6

documents that by their nature contain Nonparty Borrower Information with

7

the appropriate designation even if some of the documents in the collection

8

may not, considered individually, qualify for such designation.

9
10
11

(d)

The Producing Person shall designate Nonparty Borrower

Information material as follows:
(i)

In the case of information in documentary form, the

12

Producing Person shall designate the documents as Confidential

13

Discovery Material in the manner described above in paragraph 6,

14

except that bulk productions may be designated as set forth in

15

paragraph 9(d)(iii).

16

(ii)

Nonparty Borrower Information may be used in

17

depositions. The party using such information in a deposition should

18

designate any portion of the deposition testimony discussing such

19

information as Confidential Discovery Material pursuant to the

20

procedure outlined in paragraph 12.

21

(iii)

Any Nonparty Borrower Information produced in a non-

22

paper media (e.g., computer disks or drives) and/or bulk productions in

23

native format or without Bates numbers may be designated as such by

24

affixing the legend CONFIDENTIAL in a prominent place on the

25

exterior of the container in which the information is stored and/or on

26

the first page of a document and/or on the relevant page(s) of the

27

document. In the event a Receiving Person generates any electronic

28

copy, hard copy, transcription, or printout from any such designated
10
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

non-paper media, that Receiving Person must treat each copy,

2

transcription, or printout as confidential pursuant to the terms of this

3

Order.

4

10.

Treatment of Confidential Discovery Material. Confidential Discovery

5 Material shall be subject to the following restrictions:
6

(a)

Confidential Discovery Material shall be used solely for the

7

purpose of preparing for, and conducting, the prosecution or defense of these

8

Actions,2 including any appeals thereof, and shall not be used by the Parties

9

or any other person for any commercial, business, competitive or other

10

purpose. Absent consent from a Producing Person, which shall be given

11

solely in that Producing Person’s discretion, no Confidential Discovery

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

The Confidential Discovery Material of the Underwriter Defendants (i.e., UBS
Securities LLC, Deutsche Bank Securities Inc., and J.P. Morgan Securities LLC)
may only be used for the purpose of preparing for, and conducting, the prosecution
or defense of the Action(s) in which they are named as Defendants. Plaintiffs
reserve the right to seek agreement or an Order providing that Confidential
Discovery Material produced in this action may also be used in the following
actions: (i) MassMutual v. Residential Funding Company, LLC, et al., Case No. 11cv-30035-MAP; (ii) MassMutual v. DB Structured Products, Inc., et al., Case No.
11-cv-30039-MAP; (iii) MassMutual v. RBS Financial Products Inc., et al., Case
No. 11-cv-30044-MAP; (iv) MassMutual v. DLJ Mortgage Capital, Inc., et al., Case
No. 11-cv-30047-MAP; (v) MassMutual v. Credit Suisse First Boston Mortgage
Securities Corp., et al., Case No. 11-cv-30048-MAP; (vi) MassMutual v. JPMorgan
Chase Bank, NA, et al., Case No. 11-cv-30094-MAP; (vii) MassMutual v. Goldman
Sachs Mortgage Company, et al., Case No. 11-cv-30126-MAP; (viii) MassMutual v.
Impac Funding Corporation, et al., Case No. 11-cv-30127-MAP; (ix) MassMutual
v. HSBC Bank, USA, National Association, et al., Case No. 11-cv-30141-MAP; (x)
MassMutual v. Countrywide Financial Corp., et al., Case No. 11-cv-30215-MAP;
(xi) MassMutual v. Merrill Lynch, Pierce, Fenner & Smith Inc., et al., Case No. 11cv-30285-MAP, all pending in the District of Massachusetts; (xii) MassMutual v.
Angelo Mozilo, et al., Case No. BC482950, pending in California Superior Court,
County of Los Angeles; (xiii) Bank Hapoalim v. Goldman Sachs Group, Inc., et al.,
Case No. 650319/2013; (xiv) Bank Hapoalim v. JP Morgan Chase & Co., et al.,
Case No. 652799/2012; (xv) Bank Hapoalim v. Morgan Stanley, et al., Case No.
653036/2012; (xvi) Bank Hapoalim v. Royal Bank of Scotland Group PLC, et al.,
Case No. 653673/2012; and (xvii) Bank Hapoalim v. UBS AG, et al., Case No.
650320/2013, all pending in New York Supreme Court, New York County; (xviii)
The Western and Southern Life Ins. Co. et al. v. Bank of New York Mellon, No.
A1302490; (xix) The Western and Southern Life Ins. Co., et al. v. GS Mortgage
Securities Corp., et al., No. A1106193; (xx) The Western and Southern Life Ins.
Co., et al. v. DLJ Mortgage Capital, Inc., et al., No. A1105352; and (xxi) The
Western and Southern Life Ins. Co., et al. v. Bank of America, N.A., et al., No.
A1106524, all pending in the Ohio Court of Common Pleas, Hamilton County.
11
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

Material produced by such Producing Person may be used in connection with

2

any other litigation, matter, or proceeding.

3

(b)

Confidential Discovery Material shall not be given, shown, made

4

available or communicated in any way to anyone except those persons

5

specified in subparagraph (c) below to whom it is reasonably necessary that

6

such Confidential Discovery Material be given or shown for the purposes

7

permitted under subparagraph (a) above, and shall not be disclosed by them,

8

subject to the provision at the end of this paragraph governing further

9

restrictions on dissemination of material designated Confidential – Attorneys

10
11

and Experts Only.
(c)

Confidential Discovery Material may be disclosed, for the

12

purposes set forth in subparagraph (a) above, only to a “Qualified Person,”

13

defined as follows:

14

(i)

counsel of record for the Parties, and attorneys,

15

paralegal, clerical and other staff employed or retained by such

16

counsel who are assisting in the conduct of the respective Actions;

17

(ii)

those officers, directors, and representatives (including

18

legal representatives) of the Parties deemed necessary to aid counsel

19

in the conduct of the Actions;

20
21
22

(iii)

any and all individual Defendants in the respective

Actions;
(iv)

witnesses and prospective witnesses (other than

23

Parties) at any deposition or hearing in any of the Actions, provided,

24

however, that the witness shall not retain any documents marked as

25

Confidential Discovery Material;

26

(v)

consultants, experts, and investigators (including their

27

professional staffs) retained by the Parties, or their respective

28

counsel, as they in good faith deem necessary to provide assistance
12
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1
2
3
4
5
6

in connection with the conduct of the respective Actions;
(vi)

the Court, court personnel, and jurors, potential jurors

or alternate jurors;
(vii) court reporters and videographers used in connection
with the conduct of these Actions;
(viii) outside photocopying services, graphic production

7

services, litigation support services, and document hosting vendors

8

retained by the Parties, or their respective counsel, as they in good

9

faith deem necessary to provide assistance in connection with the

10
11
12
13

conduct of the respective Actions;
(ix)

persons who are or were authors or recipients of the

Confidential Discovery Material;
(x)

any person carrying on an insurance business that may

14

be liable to satisfy part or all of any judgment which may be entered

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in the Action(s) or to indemnify or reimburse for payments made to

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satisfy a judgment;

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19

(xi)

mediators, arbitrators, or discovery masters (and their

support staff), if any, assisting in these Actions;
(xii) any nonparty reasonably believed to have originated a

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loan at issue in the Action(s) or to be in possession, custody, or

21

control of a loan file at issue in the Action(s), which may receive

22

Nonparty Borrower Information for that loan for the purpose of

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locating the loan file; and

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(xiii) any nonparty reasonably believed to have conducted

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due diligence on the securitizations or mortgage loans at issue in the

26

Action(s) or to be in possession, custody, or control of documents

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related to such due diligence, but such nonparty may only receive

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the specific Nonparty Borrower Information that it represents is
13
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1
2

necessary for it to locate documents relating to such due diligence.
(d)

Documents or information designated as “Confidential –

3

Attorneys and Experts Only” shall be disclosed only to attorneys of record

4

and in-house or other retained counsel for the Parties to the respective

5

Actions, the authorized secretarial and legal assistance staff of such attorneys

6

and counsel, photocopying and litigation support services as provided in

7

paragraph 10(c)(viii), witnesses as provided in paragraph 10(c)(iv), the Court

8

and Court personnel as provided in paragraph 10(c)(vi), and, subject to

9

paragraph 10(c)(v), to consultants, experts, and their staff retained by the

10

Parties or their attorneys for purposes of these Actions. No documents or

11

information designated as “Confidential – Attorneys and Experts Only” shall

12

be disclosed to any third party or to any Party of these Actions, other than the

13

Producing Person, except by written stipulation of the Parties, by order of the

14

Court, or as otherwise provided herein. Documents or things designated as

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“Confidential – Attorneys and Experts Only” shall not be retained, filed, or

16

stored on the premises of any Party.

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(e)

Each person described in subparagraph 10(c)(iv), (v), (x), (xi)

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and (xii) to whom Confidential Discovery Material is disclosed shall first be

19

advised that such material is being disclosed pursuant and subject to the terms

20

of the Order and that it may not be disclosed other than pursuant to the terms

21

hereof. Prior to disclosing Confidential Discovery Material to any person

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described in subparagraph 10(c)(iv), (v), (x), (xi) and (xii) above, counsel

23

shall cause each such person to execute a certificate in the form annexed

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hereto as Exhibit A, although no Exhibit A shall be required from persons or

25

entities that receive only such Confidential Discovery Material to which they

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are reasonably believed to have had prior access. Counsel shall be

27

responsible for retaining executed certificates. Any person receiving

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Confidential Discovery Material is enjoined from disclosing that information
14
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1

to any other person, except in accordance with this Order.

2
3

11.

Inadvertent Disclosure of Confidential Discovery Material. If any

4 Receiving Person inadvertently discloses Confidential Discovery Material to
5 persons who are not Qualified Persons, counsel for the Receiving Person shall make
6 all reasonable efforts to retrieve the Confidential Discovery Material and to obtain
7 the agreement of persons to whom inadvertent disclosure was made to treat the
8 Confidential Discovery Material in accordance with the terms of the Order. Such
9 disclosure shall also be reported in writing, via overnight delivery service or email,
10 to the Producing Person who produced such inadvertently disclosed Confidential
11 Discovery Material promptly, and in no event later than three business days from the
12 discovery of such disclosure.
13

12.

Confidential Discovery Material and Depositions. Information or

14 testimony disclosed at a deposition may be designated as Confidential Discovery
15 Material by the person providing such testimony, by a Party, or by a Producing
16 Person if such person either:
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(a)

identifies on the record at the deposition those portions of the

testimony that are designated as Confidential Discovery Material; or
(b)

provides written notification to all Parties within thirty days of

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the court reporter’s release of the transcript of the deposition as to those

21

portions of the transcript that are designated as Confidential Discovery

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Material.

23

Except to the extent the Parties otherwise agree, the entire transcript of any

24 deposition shall be treated as Confidential Discovery Material until thirty (30) days
25 after the court reporter’s release of the transcript of the deposition. The deposition
26 transcript that contains Confidential Discovery Material designated pursuant to
27 subparagraph (a) above shall be stamped, as set forth in paragraph 10 above, by the
28 court reporter or by counsel. If counsel for any Party believes that a question put to
15
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 a witness being examined in deposition will disclose Confidential Discovery
2 Material, or that the answer to any question or questions requires such disclosure, or
3 if documents to be used as exhibits during the examination contain such
4 Confidential Discovery Material, such counsel may so notify the examining counsel,
5 and, in that event, that portion of the deposition shall be taken in the presence only
6 of counsel, Parties to the Litigation, the court reporter, video operator and their
7 assistants. The court reporter shall indicate in the transcript the portion of the
8 transcript that is to be kept confidential, and shall mark the cover page of the
9 transcript accordingly.
10

13.

Filing Confidential Discovery Material. In the event that any person

11 discloses Confidential Discovery Material in any pleading, court filing, attachment
12 or exhibit thereto, or other papers filed with the Court prior to trial, the disclosing
13 person shall conditionally file the documents containing Confidential Discovery
14 Material under seal with the Clerk of this Court pursuant to Local Rule 79-5. The
15 Parties understand that designation of materials as Confidential Discovery Material
16 or as Confidential – Attorneys and Experts Only does not automatically entitle the
17 Parties to have such information kept under seal and that any submission of
18 documents under seal should seek to file under seal only those portions of the
19 documents that contain Confidential Discovery Material, see, e.g., Kamaka v. City
20 & County of Honolulu, 447 F.3d 1172, 1178-81 (9th Cir. 2006), and should be made
21 to the judicial officer presiding over the proceedings in question. To the extent
22 documents containing Nonparty Borrower Information are to be filed with the Court
23 or used as exhibits in any hearing, unless otherwise ordered by the Court, the filing
24 party must either exclude from the exhibits or redact any Nonparty Borrower
25 Information sufficiently to ensure that nonparty borrower identities, or information
26 from which their identities could be ascertained, is masked and not discernible. This
27 Order does not address the use of Confidential Discovery Material for use at trial.
28 The Parties agree to meet and confer regarding use of Confidential Discovery
16
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 Material in connection with trial and to raise the issue with the Court at an
2 appropriate time.
3

14.

Objections to Confidential Classification. No Party concedes that any

4 discovery material designated by any other person as Confidential Discovery
5 Material under any provision of the Order in fact contains or reflects trade secrets,
6 proprietary or confidential information, or has been properly designated as
7 Confidential Discovery Material, and entering into the Stipulation shall not
8 prejudice the right of a Party to seek, at any time, a determination by the Court of
9 whether any particular document or information should be subject to the terms of
10 the Order. Nor does the availability of Confidential Discovery Material status or
11 Confidential - Attorneys and Experts Only status suggest that all documents or other
12 materials are properly discoverable, and shall not affect any other valid objection to
13 production of documents or other materials.
14

A Receiving Person shall not be obliged to challenge the propriety of a

15 designation of documents or other material as Confidential Discovery Material at
16 the time made or thereafter, and failure to do so shall not preclude a subsequent
17 challenge thereof. If at any time a Receiving Person objects to a designation under
18 the Order (an “Objecting Party”), the Objecting Party shall notify the Producing
19 Person in writing. The Objecting Party shall identify the information in question
20 and shall specify in reasonable detail the reason or reasons for the objection, and
21 shall otherwise comply with Local Civil Rule 37-1. Within ten (10) calendar days
22 of the receipt of such written notice, the Producing Person and Objecting Party shall
23 meet and confer in an effort to resolve their differences. If the disagreement cannot
24 be resolved, the Objecting Party may apply to the Court within ten (10) calendar
25 days for an order overruling the Producing Person’s designation. The application of
26 the Objecting Party shall comply with Local Civil Rules 37-2 and 37-3, and the
27 Producing Person shall have the burden of demonstrating that the document or
28 material designated as Confidential Discovery Material is deserving of confidential
17
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 treatment or other protection under the terms of the Order. If the Objecting Party
2 does not make such an application to the Court, the documents or material to which
3 an objection was directed will still be considered Confidential Discovery Material
4 under the Order. While any such application is pending, the documents or material
5 subject to that application will remain Confidential Discovery Material until the
6 Court rules.
7

Notwithstanding any other provision of this Order, no person shall challenge

8 in any way any confidentiality designation placed on Reproduced Discovery
9 Material if such designation was previously challenged and upheld in the matter in
10 which it was originally produced. With respect to Reproduced Discovery Material
11 that is subsequently designated confidential (or highly confidential or any similar
12 designation) in the litigation or proceedings in which such Reproduced Discovery
13 Material was originally produced, the Producing Person shall promptly notify any
14 Receiving Person of such subsequent designation. In such case, within fourteen (14)
15 days of such subsequent designation, the Producing Person shall provide the
16 Receiving Person with corrected copies of such Reproduced Discovery Material,
17 bearing the subsequently designated confidentiality designation. If any person
18 challenges any confidentiality designation placed on Reproduced Discovery
19 Material, the Parties should cooperate to accommodate the terms of the protective
20 order or confidentiality stipulation that governed in the litigation or proceeding in
21 which such Reproduced Discovery Material was originally produced, but the Court
22 will ultimately apply this Protective Order to Confidential Discovery Material
23 produced in the Actions.
24

15.

Breach of Confidentiality. In the event that the Court determines that

25 there is an actual or threatened violation of this Order by a Receiving Person, the
26 Parties agree that the Producing Person would not have an adequate remedy at law
27 and would be entitled to specific performance, and/or injunctive relief, to enforce
28 the terms of the Order, in addition to any other remedy to which the Producing
18
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 Person may be entitled at law or in equity.
2

16.

Legal Process. If any Receiving Person (a) is subpoenaed in another

3 action, (b) is served with a demand in another action to which he, she, or it is a
4 party, or (c) receives a demand or request for documents from a legal or regulatory
5 organization with jurisdiction over it and such subpoena, demand, or request seeks
6 Confidential Discovery Material, the Receiving Person shall (unless prohibited by
7 law or regulation) give written notice, by hand or by e-mail, within the earlier of (i)
8 seven business days of receipt of such subpoena, demand, or request for documents
9 or (ii) no fewer than seven business days before any response to the subpoena,
10 demand, or request is due, to all Parties, and to any nonparty who produced or
11 designated the discovery material as Confidential Discovery Material, and in no
12 event shall produce such requested material prior to providing such notice. Any
13 Party or Producing Person may seek a protective order or other court-ordered relief
14 to prevent the requested production. Should a Party or Producing Person seek a
15 protective order or other court-ordered relief, then the Receiving Person shall not
16 produce any of the Producing Person’s Confidential Discovery Material, until a final
17 decision that is no longer subject to appellate review orders such production,
18 provided that a Party or Producing Person must file any a Notice of Appeal or
19 Motion for permission to Appeal from a lower court order not later than thirty (30)
20 days after Notice of Entry of that order is served. If a Receiving Person is
21 subpoenaed or requested to produce Confidential Discovery Material by a regulatory
22 or self-regulatory agency with jurisdiction over it, through a process which by law,
23 regulation, interpretive letter, regulatory policy, or compulsory process requires the
24 Receiving Person to produce requested materials without objection, without notice
25 to other Parties, or without delay, the Receiving Person shall be permitted to do so
26 notwithstanding any provisions of this Order, including the advance notice
27 provisions, to the contrary.
28

17.

Clawback of Protected Produced Documents. Upon notification that a
19
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 document or other discovery material has been inadvertently produced and/or that a
2 claim of attorney-client privilege, attorney work product, or other applicable
3 privilege or protection will be made with regard to such document or other
4 discovery material, the party receiving such notice shall promptly return or, at the
5 Producing Person’s option, destroy any and all copies of such document or other
6 discovery material and shall refrain from reading or reviewing said document or
7 discovery material beyond the extent necessary to identify it as the inadvertently
8 produced material, or from utilizing it in any manner or form including without
9 limitation, use during the course of a deposition, review with witnesses, use by
10 counsel or otherwise to prosecute this or any other action, or any other use,
11 disclosure or review whatsoever. The Receiving Person shall also remove all
12 references to such material from any attorney work product. The inadvertent
13 production of any document or discovery that is subsequently retrieved or destroyed
14 pursuant to this paragraph shall not be deemed to be a waiver of the claim of
15 privilege or protection asserted in these Actions or in any other proceeding,
16 including in Federal or State proceedings. Notwithstanding the foregoing, nothing
17 in this paragraph shall prevent a Receiving Person, after promptly returning or
18 destroying the discovery material, from challenging the Producing Person’s
19 designation of the document or discovery as subject to attorney-client privilege,
20 attorney work product, or other applicable privilege or protection or otherwise not
21 subject to production, provided that (a) such challenge complies with Local Rules
22 37-1 through 37-4, (b) any review by the Court of the materials in question is
23 conducted in camera, and (c) the challenge shall not assert as ground or basis that
24 the Producing Person waived any privilege or protection because of the inadvertent
25 disclosure.
26

A Receiving Person may obtain from a Producing Person any privilege log(s)

27 relating to any Reproduced Discovery Material, but only to the extent such privilege
28 log exists, and the Producing Person shall use its best efforts to provide such
20
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 privilege log(s) to the Receiving Person within fourteen (14) calendar days of
2 production of the Reproduced Discovery Material or within fourteen (14) calendar
3 days of when a privilege log is provided in the litigation or proceeding in which
4 such Reproduced Discovery Material was originally produced. A Receiving Person
5 may not demand the creation of a privilege log in connection with Reproduced
6 Discovery Material, nor shall any a Producing Person be required to create any such
7 privilege log, and the failure to create or provide one shall not constitute a waiver of
8 any privilege or protection. No person shall challenge privilege log(s) relating to
9 any Reproduced Discovery Material or any designation of Reproduced Discovery
10 Material as subject to the attorney-client privilege, attorney work product, or any
11 other privilege or protection, or as otherwise not subject to production, except in
12 accordance with the instructions given by this Court during the May 10, 2013 status
13 conference. With respect to Reproduced Discovery Material that is subsequently
14 designated as privileged or otherwise not subject to production in the litigation or
15 proceedings in which such Reproduced Discovery Material was originally produced,
16 the Producing Person shall promptly notify any Receiving Person of such
17 subsequent designation, and such Receiving Person shall, within fourteen (14)
18 calendar days, destroy all such subsequently designated Reproduced Discovery
19 Material and certify to the Producing Person that it has done so.
20

18.

The Order shall be without prejudice to the rights of a Producing

21 Person to seek further limits on disclosure or protections for the confidentiality of
22 any discovery material (whether or not designated as Confidential Discovery
23 Material) in addition to the limits and protections provided herein, including,
24 without limitation, that access to or disclosure of any discovery material be limited
25 solely to counsel for a Party or to other specified persons and without prejudice to
26 the rights of any other person to contest such application.
27

19.

Any additional parties that join or are joined in any of the Actions, may

28 have access to materials produced pursuant to this Order only after the party
21
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 executes and files with the Court a stipulation agreeing to be fully bound by the
2 Order. Nonparties producing discovery materials may gain the benefits of this
3 Order with respect to any discovery materials they produce by designating as
4 “CONFIDENTIAL” the discovery material they produce.
5

20.

Final Disposition. Unless otherwise ordered or agreed in writing by the

6 Producing Person, within sixty (60) days after the final termination of an Action in
7 which a Producing Person produced discovery materials pursuant to this Order,
8 including any appeals, each Receiving Person in that terminated Action must take
9 commercially reasonable efforts to either return all Confidential Discovery Material
10 to the Producing Person, or, at its option, destroy it. Notwithstanding this provision,
11 counsel for the Parties may retain an archival copy of all pleadings, motion papers,
12 transcripts, legal memoranda, correspondence, or attorney work product, even if
13 such materials contain Confidential Discovery Material. Any such archival copies
14 that contain or constitute Confidential Discovery Material remain subject to this
15 Order until the Producing Person agrees otherwise in writing or this Court orders
16 otherwise.
17

21.

This Order shall survive the termination of each of the Actions. No

18 part of the restrictions imposed by this Order may be waived or terminated, except
19 by written stipulation executed by outside counsel of record for each Producing
20 Person or by an Order of the Court.
21

22.

The Parties may jointly seek to amend or modify this Order, subject to

22 Court approval.
23

23.

Notwithstanding any provision contained herein, nothing in this Order

24 shall restrict in any way the right of a Party to make use of its own discovery
25 material in any way it deems fit.
26

24.

Nothing in this Order shall be deemed a waiver of any of the Parties’

27 rights to oppose any discovery on any grounds or to object on any ground to the
28 admission in evidence at any motion hearing or the trial of these Actions of any
22
[Proposed] Order Governing the Treatment of Confidential Discovery Material

1 matter discovered.
2

25.

Disclosure of Nonparty Borrower Information. To the extent any

3 federal or state law or other legal authority governing the disclosure or use of
4 Nonparty Borrower Information (“Nonparty Borrower Information Law”) permits
5 disclosure of such information pursuant to an order of a court, this Order shall
6 constitute compliance with such requirement. To the extent any Nonparty Borrower
7 Information Law requires a party to obtain a court-ordered subpoena or give notice
8 to or obtain consent, in any form or manner, from any person or entity before
9 disclosure of any Nonparty Borrower Information, the Court finds that, in view of
10 the protections provided for the information disclosed in this Order, the volume of
11 documents to be produced and the ongoing oversight of the Court, there is good
12 cause to excuse such requirement, and the Court hereby Orders that the party is
13 exempted from obtaining a court-ordered subpoena or having to notify or obtain
14 consent from any person or entity prior to the disclosure of Nonparty Borrower
15 Information. To the extent that any Nonparty Borrower Information Law requires
16 that any person or entity be notified prior to disclosure of Nonparty Borrower
17 Information except where such notice is prohibited by court order, the Court hereby
18 Orders, in view of the protections provided for the information disclosed in this
19 Order, the volume of documents to be produced and the ongoing oversight of the
20 Court, that the Parties are explicitly prohibited from providing such notice;
21 provided, however, that this Order shall not prohibit any party from contacting any
22 person or entity for any other purpose. Any Producing Person may seek additional
23 orders from this Court that it believes may be necessary to comply with any
24 Nonparty Borrower Information Law.
25 IT IS SO ORDERED
26
27 Dated: May 20, 2013

__________________________
Hon. Mariana R. Pfaelzer
United States District Judge

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23

[Proposed] Order Governing the Treatment of Confidential Discovery Material

1
ACKNOWLEDGMENT

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I have been informed that on

, the United States

District Court for the Central District of California entered an ORDER
GOVERNING THE TREATMENT OF CONFIDENTIAL DISCOVERY
MATERIAL in Allstate Insurance Company v. Countrywide Financial
Corporation, 2:11-cv-005236-MRP (MANx); Bank Hapoalim B.M. v. Bank of
America Corporation, 2:12-cv-04316-MRP (MANx); Minnesota Life Insurance
Company v. Countrywide Financial Corporation, 2:12-cv-06149-MRP (MANx);
National Integrity Life Insurance Company v. Countrywide Financial Corporation,
2:11-cv-09889-MRP (MANx); Federal Deposit Insurance Corporation as receiver
for United Western Bank, F.S.B. v. Countrywide Financial Corporation, 2:11-cv10400-MRP (MANx); and Massachusetts Mutual Life Insurance Company v.
Countrywide Financial Corporation, 2:11-cv-10414-MRP (MANx (the “Order”). I
have read the Order, agree to abide by the terms of the Order as they apply to me,
and voluntarily submit to the jurisdiction of the United States District Court for the
Central District of California for purposes of any proceeding related to the Order,
including my receipt or review of information that has been designated as
CONFIDENTIAL.

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(Signature)

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(Printed Name)

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[Proposed] Order Governing the Treatment of Confidential Discovery Material