Wintrust Mortgage v. Jeffrey Wettstein et al

Filing 52

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order #50 . (san)

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Paul J. Coady, Bar No. 81698
[e-mail]
David A. Grant, Bar No. 288760
[e-mail]
PAYNE & FEARS LLP
Attorneys at Law
1100 Glendon Avenue, Suite 1250
Los Angeles, California 90024
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff WINTRUST MORTGAGE
a division of Barrington Bank and Trust, N.A.
Casondra K. Ruga (State Bar No. 237597)
[e-mail]
ALSTON & BIRD LLP
333 South Hope Street, Sixteenth Floor
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
ANGEL OAK HOME LOANS, LLC

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(COUNSEL CONTINUED ON NEXT PAGE)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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WINTRUST MORTGAGE, a division of
Case No.: 2:16-cv-06441-ODW-JEM
Barrington Bank and Trust, N.A., a national Assigned to the Honorable Otis D.
bank authorized to do business in California, Wright
[PROPOSED] PROTECTIVE
Plaintiff,
ORDER
v.
JEFFREY WETTSTEIN, an individual,
MICHAEL SHARA, an individual,
JACQUELINE SCHULTE, an individual,
CYNTHIA EYANSON, an individual, and
ANGEL OAK HOME LOANS, LLC, a
limited liability company,

DISCOVERY MATTER
Filing Date:
August 26, 2016
Trial Date:
March 27, 2018
Discovery Cut-off: December 22, 2017
Motion Cut-off: February 5, 2018

Defendant.

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[PROPOSED] PROTECTIVE ORDER

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Thomas Myers (State Bar No. 120674)
SMITH & MYERS LLP

[e-mail]
333 S. Hope St., 35th Floor
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendants
JEFFREY WETTSTEIN, MICHAEL SHARA,
JACQUELINE SCHULTE and CYNTHIA EYANSON

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[PROPOSED] PROTECTIVE ORDER

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The Court, having reviewed the Stipulated Protective Order entered into

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among Plaintiff Wintrust Mortgage and Defendants Angel Oak Home Loans, LLC,

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Jeffrey Wettstein, Michael Shara, Jacqueline Schulte and Cynthia Eyanson, finds

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that good cause exists to enter an order approving said Stipulated Protective Order.

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Accordingly, IT IS HEREBY ORDERED as follows:
1.

This Order shall govern all items or information, regardless of

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the medium or manner in which they are generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that

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are produced or generated in disclosures or in response to discovery in this

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litigation (“Discovery Materials”).
2.

Any party to this litigation shall have the right to designate

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Discovery Materials as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”

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pursuant to the terms of this Order.

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” will be referred to as

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“Designated Materials.”

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subpoena or otherwise may designate Discovery Materials pursuant to this Order

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only if an authorized representative of the producing third party executes a

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written acknowledgment, substantially in the form of Exhibit 1 annexed to this

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Order, that the non-party has reviewed a copy of this Order, will comply with its

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terms, and will submit to adjudication of any dispute regarding that third-party’s

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designations under this Order, enforceable by and subject to the jurisdiction of

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the District Court as may be necessary.

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a.

Discovery Materials designated

Any third party producing documents pursuant to a

All designations must be made in good faith and on

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reasonable belief that the information or item being designated accurately

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meets the definition of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

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b.

A party or non-party that designates Discovery Materials

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as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” (“Designating

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Party”) must designate for protection, where practicable, only those parts
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[PROPOSED] PROTECTIVE ORDER

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of the material, documents, items, or communications that qualify so that

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other portions of the material, documents, items, or communications for

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which protection is not warranted are not swept unjustifiably within the

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ambit of this Order.
c.

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Except as otherwise provided in this Order, e.g., with

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respect to deposition testimony as provided in Section 9(b) below, or as

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otherwise stipulated or ordered, disclosure of Discovery Materials that

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qualify for protection under this Order must be clearly so designated

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before being disclosed or produced.
d.

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Materials marked “CONFIDENTIAL” shall be non-

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public Discovery Materials that the “Designating Party” in good faith

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believes qualify for protection under Rule 26(c) of the Federal Rules of

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Civil Procedure, including, but not limited to, trade secrets or other

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confidential research, development, or commercial information.
e.

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Materials marked “HIGHLY CONFIDENTIAL” shall be

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highly sensitive non-public Discovery Materials, disclosure of which to

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another Party or Non-Party would create a substantial risk of serious harm

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to the Designating Party’s competitive position or otherwise reveal

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internal business, sensitive private or strategic information whose

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disclosure could prejudice the Designating Party.
3.

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The party that receives Discovery Materials or Designated

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Materials (“Receiving Party”) shall use the Discovery Materials or Designated

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Materials solely for purposes of this litigation or the parallel arbitration

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proceeding among the parties, but not for any other purpose whatsoever

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(including that such materials may not be disseminated to the media or general

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public).

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4.

Unless otherwise ordered by the Court or permitted in writing

by the Designating Party, the Receiving Party may disclose materials marked
[PROPOSED] PROTECTIVE ORDER

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“CONFIDENTIAL” only to:
a.

any individual who is a party; any officer, director, or

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employee (including in-house counsel) of a party; or any former officer,

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director, or employee of a party to whom it is deemed reasonably

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necessary that the Designated Materials be shown for purposes of the

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litigation and who has executed the “Acknowledgement and Agreement to

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Be Bound” (Exhibit 1) before being provided the Designated Materials;

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b.

the Receiving Party’s outside counsel, and employees of

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and independent contractors for outside counsel that are engaged in work

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for such counsel necessary to assist in this litigation. The term “outside

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counsel” shall mean the attorneys and their firms who have entered an

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appearance in this case;

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c.

persons retained by a party or its counsel to serve as an

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expert witness or a consultant in this litigation to whom disclosure is

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reasonably necessary for this litigation and who have executed the

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“Acknowledgement and Agreement to Be Bound” (Exhibit 1) before being

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provided the Designated Materials.

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expert shall maintain custody of the executed “Acknowledgement and

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Agreement to Be Bound” and shall produce a copy to any other party’s

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counsel upon request;

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d.

Counsel for the party retaining the

witnesses in the course of deposition where counsel has a

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reasonable and good faith belief that examination with respect to the

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Designated Materials is necessary, and any person being prepared to

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testify where counsel has a reasonable and good faith belief that such person

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will be a witness in this action and that his examination with respect to the

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Designated Materials is necessary in connection with such testimony;

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persons to whom Designated Materials are disclosed pursuant to this

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subparagraph

may

not

be

permitted

to

retain

copies

of

the

[PROPOSED] PROTECTIVE ORDER

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Designated Materials;
e.

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any authorized representative of an insurer or other person

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providing or potentially providing indemnity with regard to the litigation,

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provided that any such person shall be advised that they are subject to the

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terms of this Order before being provided Designated Materials;
f.

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or

the author or recipient of the Designated Materials or a

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custodian

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the information contained or reflected in the Designated Materials;
g.

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other

person

who

otherwise

possessed

or

knew

court reporters and their staff, persons preparing

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transcripts of depositions, professional trial consultants, and professional

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vendors to whom disclosure is reasonably necessary for this litigation and

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who have executed the “Acknowledgement and Agreement to Be Bound”

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(Exhibit 1) before being provided the Designated Materials; and
h.

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5.

the Court and personnel associated with Court;

Unless otherwise ordered by the Court or permitted in writing

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by the Designating Party, the Receiving Party may disclose materials marked

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“HIGHLY CONFIDENTIAL” only to:

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a.

Individuals described in Paragraphs 4(b)-(c), (e)-(h)

b.

Designated in-house counsel (or their staff) of the

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above; and

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Receiving Party (1) who has no involvement in competitive decision-

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making, (2) to whom disclosure is reasonably necessary for this litigation,

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and (3) who has executed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit 1).

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6.

Persons who are authorized to review Designated Materials

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shall hold such materials in confidence and shall not disclose their contents,

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either orally or in writing, to any person not otherwise authorized to receive

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such information under this Order, or otherwise required by law. Copies of
[PROPOSED] PROTECTIVE ORDER

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Designated Materials shall be made only to the extent necessary to facilitate

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permitted use under this Order.
7.

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The recipient of Designated Materials provided under this

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Order shall maintain such information in a secure and safe area and shall

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exercise the same standard of due and proper care with respect to the storage,

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custody, use or dissemination of such information as is exercised by the

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recipient with respect to its own proprietary information. Designated Materials

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shall not be copied, reproduced, summarized or abstracted, except to the extent

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that such copying, reproduction, summary or abstraction is reasonably necessary

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for purposes related to this lawsuit. All such copies, reproductions, summaries,

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extractions, and abstractions shall be subject to the terms of this Order, and

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labeled in the same manner as the Designated Materials on which they are

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based.

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8.

In the event a party deems it necessary or appropriate to

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disclose any Designated Materials to any person not specified in Paragraphs 4 or

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5, that party shall notify counsel for the Designating Party in writing of: (i) the

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Designated Materials it wishes to disclose, and (ii) the person or persons to

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whom such disclosure is to be made. The proposed disclosure shall not be made

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absent written permission of the Designating Party, unless the party wishing to

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make the proposed disclosure obtains an order from the Court permitting the

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proposed disclosure. Counsel shall obtain from all persons to whom disclosures

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are made pursuant to this Paragraph 8 a written acknowledgement, substantially

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in the form of Exhibit 1 attached hereto, that such person or persons have

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reviewed a copy of this Order, will comply with its terms in all respects, and

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agrees to jurisdiction and adjudication by this Court of any dispute about

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whether such person or persons have complied with the terms of this Order.

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9.

In the event of any inadvertent disclosure of attorney-client

privileged information or information subject to the attorney work product
[PROPOSED] PROTECTIVE ORDER

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doctrine or any other privilege, the party making such inadvertent disclosure,

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after learning of such inadvertent disclosure, shall immediately notify the party

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to whom the inadvertent disclosure was made; the obligations of the Receiving

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Party are those set forth in Rule 26(b)(5)(B) of the Federal Rules of Civil

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Procedure.

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10.

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” as follows:
a.

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The Designating Party shall designate Discovery Materials

electronic

for information in documentary form (e.g., paper or

documents,
shall

excluding
by

placing

the

of

depositions),

designation

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” on each page that

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contains protected material prior to production; if only a portion or

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portions of the material on a page qualifies for protection, the Designating

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins);
b.

made

transcripts

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be

but

following

legend

for testimony given in deposition, designation of the

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portion of the transcript (including exhibits) as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL” shall be made by a statement to such effect

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on the record in the course of the deposition or, upon review of such

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transcript, by counsel for the party to whose protected material the

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deponent has had access. If a portion of a deposition is designated as

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“CONFIDENTIAL”

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deposition is transcribed, the transcript containing or reflecting protected

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materials shall be bound in a separate volume marked “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL” as appropriate. If a portion of a

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deposition

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CONFIDENTIAL” during the course of a deposition, counsel may request

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all persons, except persons entitled to receive Designated Materials

is

or

“HIGHLY

designated

as

CONFIDENTIAL”

“CONFIDENTIAL”

or

before

the

“HIGHLY

[PROPOSED] PROTECTIVE ORDER

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pursuant to this Order, to leave the room while the deposition is

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proceeding until completion of the answer or answers containing protected

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materials.

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” after the deposition

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is transcribed, counsel shall list on a separate piece of paper the page

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numbers of the transcript containing protected material and shall mail

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copies of the list to counsel for all parties within ten (10) days after receipt

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of the certified transcript from the court reporter so that it may be affixed

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to the face of the transcript and each copy thereof.

If

a

portion

of

a

deposition

is

designated

as

Pending such

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designation by counsel after the deposition is transcribed, only those

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portions of the transcript designated “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL” on the record in the course of the deposition shall be

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treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” as

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applicable; and
c.

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for information produced in non-paper media (e.g.,

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videotape, audiotape, and computer disk), designation shall be made by

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affixing in a prominent place on the exterior of the container or containers

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in

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

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Receiving Party generates any “hard copy,” transcription, or printout from

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any such designated non-paper media, such party must stamp each page

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and the hard copy,

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transcription, or printout shall be treated as it is designated.

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which

11.

in

the

information

or

item

is

stored

the

legend

In the event a

For Court filings, the parties shall use their best efforts to

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include Designated Materials only when absolutely necessary and shall only file

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versions of sealed filings permitted by the Court that redact any portions of

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those filings that contain or reflect Designated Materials. Until the Court has

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ruled on a motion to seal, no materials containing Designated Materials
[PROPOSED] PROTECTIVE ORDER

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proposed to be filed with the Court under seal shall be disclosed to any person

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except as provided in this Order. If the Court grants the motion to file under

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seal, the documents shall remain under seal and shall not be disclosed except as

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provided in this Order or other Order of the Court. A complete, unredacted set

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of documents filed under seal shall be provided by the filing party to opposing

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counsel.
12.

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If timely corrected, an inadvertent failure to designate

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qualified

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CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right

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to secure protection under this Order for such information or items. If the

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information or items is appropriately designated as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL” after it was initially produced, the Receiving

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Party, upon timely notification of the designation, must make reasonable efforts

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to assure that the Designated Materials are treated in accordance with the

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provisions of this Order.

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information

13.

or

items

as

“CONFIDENTIAL”

or

“HIGHLY

A party shall not be obligated to challenge the propriety of a

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” designation at the time

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made, and failure to do so shall not preclude a subsequent challenge thereto during

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the pendency of this litigation. In the event that any party to this litigation

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disagrees at any stage of these proceedings with such designation (“Challenging

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Party”), such party shall provide to the Designating Party written notice of its

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disagreement with the designation. The parties shall first try to dispose of such

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dispute in good faith on an informal basis. If the dispute cannot be resolved, the

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Designating Party may file a motion requesting that the Court determine whether

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the disputed material shall be treated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL” under the Order. The Designating Party shall have the burden

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of proving that the information or item has been properly designated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”.

Discovery Material
[PROPOSED] PROTECTIVE ORDER

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designated as Designated Materials shall retain this status until such time as either:

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(a) the parties expressly agree otherwise in writing, or (b) the Court orders

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otherwise, unless such order is stayed pending appellate review.

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14.

In the event that any Designated Materials are used in any court or

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arbitration proceeding in connection with this litigation, they shall not lose their

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” status through such use, and

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the parties shall take all steps reasonably required to protect their confidentiality

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during such use. Likewise, in the event any Designated Materials are used in any

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subsequent proceeding in court, they shall not lose their “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL” status through such use.
15.

If Designated Materials are disclosed to any person other than

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in the manner authorized by this Order, the person responsible for the disclosure

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must immediately bring all pertinent facts relating to such disclosure to the

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attention of counsel for the Designating Party and, without prejudice to any

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other rights and remedies of the parties, make every effort to prevent further

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disclosure by it or by the person who was the recipient of such information.

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16.

In the event any Receiving Party having possession, custody,

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or control of any Discovery Materials provided by the Designating Party

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receives a subpoena or other process or order to produce in another legal

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proceeding the Discovery Materials, such Receiving Party shall promptly notify

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counsel for the Designating Party of the subpoena or other process or order,

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furnish counsel for the Designating Party with a copy of said subpoena or other

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process or order, and cooperate with respect to all reasonable procedures sought

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to be pursued by the Designating Party whose interests may be affected. The

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Designating Party shall have the burden of defending against such subpoena or

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other process or order. The Receiving Party shall be entitled to comply with the

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subpoena or other process or order unless the Designating Party has notified the

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Receiving Party prior to the production date identified in the subpoena or other
[PROPOSED] PROTECTIVE ORDER

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process or order that it has filed a motion seeking to modify, quash, or otherwise

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prevent the disclosure of the information sought. The Designating Party will

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thereafter promptly inform the Receiving Party of the court’s order on the

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subject motion so the Receiving Party can promptly comply with the terms of

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the order. Notwithstanding the foregoing or anything else in this Order, nothing

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in this Order shall be construed as authorizing a party to disobey a lawful

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subpoena issued in another action.

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17.

Entering into, agreeing to, or producing or receiving

information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
or otherwise complying with the terms of this Order shall not:
a.

operate as an admission by any party that any material

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designated by another party or non-party actually contains or reflects trade

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secrets or other confidential information;

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b.

reduce in any way the rights of the parties or non-parties

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from whom discovery may be sought to object to a request for discovery

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or to the production of documents or materials that they may consider not

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subject to discovery or privileged from discovery;

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c.

prejudice in any way the rights of any party to object to

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the authenticity or admissibility of any document, materials, or testimony

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that is subject to this Order;

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d.

prejudice in any way the rights of any party to seek a

determination by the Court as to the appropriateness of a designation; or
e.

prevent the parties from agreeing to alter or waive the

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protections or remedies provided in this Order with respect to any

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particular Designated Materials or Discovery Materials, provided that such

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agreement, alteration, or waiver is in writing and signed by both parties.

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No modification of this Order by the parties shall have the force or effect

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of a court order unless the Court approves the modification.
[PROPOSED] PROTECTIVE ORDER

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18.

This Order is without prejudice to the right of any party to

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seek relief from the Court, upon good cause shown, from any of the provisions

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contained in this Order.

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19.

Nothing contained herein shall preclude a producing party or

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non-party from using his, her, or its own confidential information, documents, or

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materials in any manner he, she, or it sees fit, or from revealing such confidential

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information, documents, or materials to whomever he, she, or it chooses.

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20.

After termination of this action, the restrictions on the

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communication and disclosure provided for herein shall continue to be binding

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upon the parties and all other persons to whom Designated Materials or information

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contained therein has been communicated or disclosed pursuant to the provisions of

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this Order or any other Order of the Court. The Court shall retain continuing

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jurisdiction to enforce the terms of this Order as may be necessary.

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21.

All Designated Material subject to this Order shall be returned

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to the Designating Parties upon termination of this action (or, upon written

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permission by the Designating Party, destroyed). Termination of this action shall be

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taken and construed as the date forty-five (45) days following (a) the filing of a

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stipulated dismissal or the entry of a voluntary dismissal; (b) a final non-

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appealable order disposing of this case; or (c) the expiration of the time for any

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appeal. Upon such termination, counsel of record for the Receiving Party shall

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notify counsel for the Designating Party of compliance. Counsel for the Receiving

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Party shall make a reasonable effort to retrieve any documents or information

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subject to this Order from any person to whom such information has been given, and

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shall notify counsel for the Designating Party of the failure to retrieve any such

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information.

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retaining after termination of this action a copy of pleadings, motions, and

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memoranda filed with the Court, and/or attorney work product, provided,

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however, that such counsel may not disclose retained materials that contain

Nothing in this paragraph shall preclude outside counsel from

[PROPOSED] PROTECTIVE ORDER

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Designated Materials to any other person and shall keep such retained materials

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in a manner reflecting their confidential nature.

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22.

Good Cause – Good Cause exists for entering this Protective

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Order because the materials protected hereby have been narrowly defined to

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include trade secret, confidential and proprietary, and/or privileged information.

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Such confidential information is generally not made available to the public, and

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its disclosure could cause serious and irreparable harm to one or more of the

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parties to this action and/or to other third parties.

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IT IS SO ORDERED.

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Dated: February 2, 2017

_________________________________
Hon. John E. McDermott
Magistrate Judge

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[PROPOSED] PROTECTIVE ORDER