JPMorgan Chase Bank National Association v. First Mortgage Corporation

Filing 30

STIPULATED PROTECTIVE ORDER by Magistrate Judge David T. Bristow (see attached Order for further details). (jp)

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Rachel M. Dollar, CSB 199977
[e-mail]
Richard R. Sutherland, CSB 240858
[e-mail]
SMITH DOLLAR PC
Attorneys at Law
404 Mendocino Avenue, Second Floor
Santa Rosa, California 95401
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff and Counter-Claim Defendant
JPMorgan Chase Bank, N.A.
Philip A. Baker, CSB 169571
[e-mail]
Daniel P. Leonard, CSB 194268
[e-mail]
BAKER, KEENER & NAHRA, LLP
633 West 5th Street, Suite 5400
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant and Counter-Claim Plaintiff
First Mortgage Corporation

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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JPMorgan Chase Bank, National
Association, a National Banking
Association,

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v.

First Mortgage Corporation, a California
Corporation,
Defendant.

[PROPOSED] STIPULATED
PROTECTIVE ORDER
NOTE CHANGES MADE BY THE
COURT
Judge: Honorable David T. Bristow
Complaint Filed: December 18, 2012
Trial Date:

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DISCOVERY

Plaintiff,

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CASE NO.: EDCV 12-02230
VAP(DTBX)

GOOD CAUSE FOR STIPULATED PROTECTIVE ORDER
This matter involves the origination, sale and transfer of residential mortgage

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loans made to consumers.

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exchanged in discovery include documents submitted by consumers to apply for and

The underlying relevant documents which will be

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obtain loans, including credit reports, bank statements, tax returns and other

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documents which contain non-public personal and financial information and

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documents of non-party consumers. These documents and information are subject to

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strict privacy laws and merit special protection from public disclosure and from use

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for any purpose other than prosecution and defense of this litigation. The personal

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and financial information to be protected includes, but is not limited to, bank account

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information, social security numbers, income, debt, credit card and credit

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information, dates of birth, driver’s license numbers, employment, and the names of

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children or minors that are protected from disclosure by various state and federal

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laws including, but not limited to, 15 U.S.C. §6802 et seq. (“Gramm-Leach-Bliley

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Act”). Documents that should be protected include, but are not limited to: loan

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applications, credit reports, bank statements, W-2s, 1099s and tax returns. If the

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confidential information or documents are made public, the non-party borrowers will

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be harmed and prejudiced by having their private and confidential personal and

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financial information in the public domain and will be exposed to a risk of identity

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theft. The parties will be harmed and prejudiced by being unable to comply with

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State and Federal laws and may be subject to potential liability.

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In addition, disclosure and discovery may involve production of documents or

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information that the producing party may contend contains confidential, proprietary,

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or private information, including, but not limited to, trade secrets and internal

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documents and processes utilized by the parties in originating loans and investigating

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and handling loan repurchase claims. To the extent this is the case, this information

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is entitled to special protection from public disclosure and from use for any purpose

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other than prosecuting this litigation. The parties may be harmed and prejudiced if

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their confidential, proprietary, or private information is disclosed to the public

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because it may reduce their competitive advantage and, thus, harm their respective

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businesses.

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The parties acknowledge that this Stipulated Protective Order does not confer
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blanket protection on all disclosures or responses to discovery and that the protection

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afforded from public disclosure and use extends only to the limited information or

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items that are entitled to confidential treatment under the applicable legal principles.

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The parties further acknowledge that this Stipulated Protective Order does not entitle

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them to file confidential information under seal without following the applicable

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local rules and procedures and does not exempt them from the standards applied by

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the Court when a party seeks permission to file material under seal.

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IT IS HEREBY STIPULATED AND AGREED, by and between the parties to

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this action, through undersigned counsel, that the terms and conditions of this

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Stipulated Protective Order (“Protective Order”) shall govern the production and

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handling of documents, answers, responses, depositions, pleadings, exhibits, and all

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other information exchanged by the parties in the above-entitled action relating to

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CONFIDENTIAL INFORMATION, as defined herein.

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IT IS HEREBY STIPULATED AND AGREED THAT:

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1.

The transactions underlying this litigation involve mortgage loan

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transactions of non-party consumers. The documents that are relevant to this action

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may contain certain CONFIDENTIAL INFORMATION concerning the borrowers.

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This CONFIDENTIAL INFORMATION is the subject of certain State and Federal

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privacy laws and also includes personal identifying information of the borrowers that

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should not be publicly available.

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2.

CONFIDENTIAL

INFORMATION

shall

include

any

and

all

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information produced by another party to this action that is, or contains personal

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information of the borrowers including, without limitation, social security numbers,

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birth dates, primary addresses, telephone numbers, employers, salaries, bank account

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designations or numbers, credit accounts, personal financial information and any and

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all information protected from disclosure by applicable Federal or State privacy laws.

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3.

CONFIDENTIAL INFORMATION shall also include information,

documents, or things, or portions of any document or thing, which belongs to a
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designating party who in good faith believes that such information is entitled to

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confidential treatment under this Protective Order because it contains Trade Secrets1,

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confidential, proprietary, or private information of the parties, including but not

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limited to, internal documents and processes in connection with which disclosure

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may cause significant harm to an individual or to the business or competitive position

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of the designating party.

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4.

CONFIDENTIAL INFORMATION shall not include information that is

publicly available.

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5.

CONFIDENTIAL INFORMATION shall be disclosed only to: (a) the

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Court under seal; (b) the parties' respective counsel who are responsible for and/or

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working directly in the prosecution or defense of this action, as reasonably necessary

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(including support staff); (c) individual parties and in-house corporate or company

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representatives of each party (officers, directors or employees of a party who have

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been charged by their respective corporation or company with the responsibility for

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providing support or making business decisions dealing directly with the subject

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matter of this action); (d) and the additional individuals listed in items (i) through (v)

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below. All individuals to whom CONFIDENTIAL INFORMATION is disclosed

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must have read this Protective Order in advance of disclosure. All persons listed in

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(i) through (v) below must sign an undertaking in the form attached as Exhibit A,

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which shall be retained in the files of counsel:

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i)

counsel in this action;

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outside experts and outside consultants retained by the parties or their

ii)

a deponent or other witness who authored, received or saw a document

or thing marked “CONFIDENTIAL INFORMATION” or who is otherwise familiar

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Pursuant to California Civil Code § 3426.1, “Trade Secret” means information,
including a formula, pattern, compilation, program, device, method, technique, or
process, that: (1) Derives independent economic value or potential, from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use; and (2) Is the subject of efforts that are reasonable under
the circumstances to maintain its secrecy.
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with the CONFIDENTIAL INFORMATION, or who may have testimony to offer

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relevant to the CONFIDENTIAL INFORMATION;

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iii)

independent copying services, independent exhibit makers and other

independent litigation support services retained by counsel;
iv)

independent paralegals, independent stenographic, independent clerical

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employees and independent translators associated with the individuals in i-iii above,

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but only as part of a disclosure to said individuals in accordance with this stipulation

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and order; and

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v)

such other individuals as the parties may stipulate.

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6.

Parties shall designate CONFIDENTIAL INFORMATION as follows:

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a.

In the case of documents, interrogatory answers, responses to

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requests for admission, or any other written discovery response or disclosure and all

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information contained therein, designation shall be made by placing the designation

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“CONFIDENTIAL” or “CONFIDENTIAL INFORMATION” on any such document

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response or answer prior to production. If originals of documents are produced for

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inspection, then such designation shall be placed upon the documents at the time of

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copying of such documents. In the event that a party inadvertently fails to stamp or

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otherwise designate a document or other information as CONFIDENTIAL

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INFORMATION at the time of its production or disclosure, that party shall, within

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fifteen (15) business days after such production or disclosure, so stamp or otherwise

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designate the document or other information. The party receiving such subsequent

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designation shall immediately give notice thereof to each person, if any, to whom the

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previously undesignated document or information was disclosed, and thereafter such

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document or information and all such persons shall be subject to the provisions of

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this Protective Order.

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b.

In the case of depositions, designation of any portion of the

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transcript (including exhibits) which contains CONFIDENTIAL INFORMATION

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shall be made by a statement to such effect on the record in the course of the
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deposition or upon review of such transcript by counsel for the party to whose

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CONFIDENTIAL INFORMATION the deponent has had access. Said review by

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counsel shall occur within thirty (30) days after counsel’s receipt of the transcript.

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Counsel shall list on a separate piece of paper the numbers of the pages of the

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transcript containing CONFIDENTIAL INFORMATION, inserting the list at the end

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of the transcripts and mailing copies of the list to counsel for all parties so that it may

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be affixed to the face of the transcript and each copy thereof.

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designation by counsel, the entire deposition transcript, including exhibits, shall be

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deemed CONFIDENTIAL INFORMATION; if no such designation is made within

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thirty (30) days after receipt of the transcript, the transcript shall be considered not to

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contain any CONFIDENTIAL INFORMATION, unless previously so designated

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during the deposition or upon subsequent agreement of the parties.

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c.

Pending such

Transcripts of depositions will not be filed with the Court unless it

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is necessary to do so for purposes of trial, motions for summary judgment, or other

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matters.

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INFORMATION, the transcript shall bear the appropriate legend on the caption page

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and shall be filed under seal, in accordance with paragraph 10 below.

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7.

If a deposition transcript is filed and if it contains CONFIDENTIAL

The parties may agree with any third party witness that the third party

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witness may invoke all provisions of this Protective Order which are available to the

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parties herein, and, if so agreed in writing between the parties and a third party

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witness, the parties herein will treat all documents and other materials produced by

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such third party witness, which information is designated in writing by the third party

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witness as CONFIDENTIAL INFORMATION, in accordance with the terms of this

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Protective Order.

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8.

The parties recognize that in order to assist in the preparation of their

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case, the receiving party may desire to utilize the services of experts or consultants,

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whose advice and consultation are being or will be used by such party in connection

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with this litigation. Counsel desiring to disclose CONFIDENTIAL INFORMATION
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to such experts or consultants shall first obtain a signed undertaking of each such

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expert or consultant and each of his or her stenographic and clerical personnel who

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may require access to such materials, in the form attached hereto as Exhibit A. A file

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shall be maintained by the attorneys of record of all signed undertakings, which file

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shall, upon request, be available for inspection and copying by all other attorneys of

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record herein, except that the undertakings signed by experts and/or consultants need

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not be disclosed until after the statutory time for disclosure of expert witness

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information. A file shall be maintained by the attorneys of record of all signed

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undertakings, which file shall, upon request, be available for inspection and copying

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by all other attorneys of record herein, except that the undertakings signed by experts

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and/or consultants need not be disclosed until after the statutory time for disclosure of

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expert witness information and as required by the Federal Rules of Civil Procedure.

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This Protective Order does not compel the Parties to produce information related to

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designated experts or consultants not expressly designated by said party pursuant to

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Rule 26(a)(2) prior to the conclusion of this case, except where a party has reasonable

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cause to believe that CONFIDENTIAL INFORMATION has been disseminated in

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violation of this Protective Order, that party may file a request with the Court that the

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Court conduct an in camera review to determine whether a violation has occurred.

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9.

CONFIDENTIAL INFORMATION or copies thereof bearing the

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identification specified in paragraph 6(a) or containing the type of information

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specified in paragraph 6(c) shall not be made public by counsel or persons entitled to

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access to such materials under this Protective Order, and shall not be disclosed to

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anyone other than the Court and the persons entitled to access to such materials under

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this Protective Order, unless such CONFIDENTIAL INFORMATION becomes a

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part of the public record of this litigation other than through conduct in breach of this

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Protective Order.

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10.

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The party seeking to utilize or otherwise disclose any information

subject to confidential treatment in accordance with the terms of this Protective Order
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in any pleadings, motions, objections or exhibits and other papers filed with the

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Court

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INFORMATION under seal in accordance with the terms and procedures set forth in

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Central District of California Local Rule 79-5.

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shall

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seek

to

file

such

documents

containing

CONFIDENTIAL

Based upon the protections afforded by this Protective Order, the parties

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shall not redact any portion of any document exchanged in the course of discovery,

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except to the extent that the information is believed by the conveying party to be

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protected from disclosure by the attorney-client privilege, work-product immunity or

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other applicable privilege, law or agreement. Notwithstanding, and although a

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document or page of a document has been designated as “CONFIDENTIAL” or

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“CONFIDENTIAL INFORMATION”, it is not necessary to file it or any page of the

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document under seal if the CONFIDENTIAL INFORMATION contained on the

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document is redacted, either completely, as needed, or in accordance with Rule 5.2 of

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the Federal Rules of Civil Procedure.

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12.

All CONFIDENTIAL INFORMATION shall be used solely for the

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purpose of prosecution or defense of this lawsuit, including, but not limited to, in

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motion papers, at any motion hearing, in testimony at trial, offered in evidence at trial

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or at any motion hearing, to prepare for discovery, to conduct discovery, to prepare

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for trial, and to support or oppose any motion, all subject to the provisions of this

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Protective Order or any further order regarding confidentiality as the Court may

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enter.

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13.

CONFIDENTIAL INFORMATION may not be used by the receiving

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party for any business, commercial, competitive, personal, or other purpose, and shall

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not be disclosed by the receiving party to anyone other than those set forth in

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Paragraph 3, unless and until the restrictions herein are removed either by written

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agreement of counsel for the parties, or by Order of the Court.

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14.

Other than the Court and Court personnel, each individual designated in

Section 5 of this Protective Order who receives any CONFIDENTIAL
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INFORMATION hereby agrees to subject himself/herself to the jurisdiction of the

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Court for the purpose of any proceedings relating to the performance under,

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compliance with, or violation of, this Protective Order.

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15.

The recipient of any CONFIDENTIAL INFORMATION that is

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provided under this Protective Order shall maintain such information in a secure and

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safe area and shall exercise the same standard of due and proper care with respect to

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

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the recipient with respect to its own proprietary information.

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16.

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

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CONFIDENTIAL INFORMATION designation at the time it is made, and failure to

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do so shall not preclude a subsequent challenge thereto (subject to discovery or

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motion cut-off dates imposed by the Court, Local Rule, Federal Rule of Civil

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Procedure, or other applicable authority). In the event that the parties to this action

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disagree at any stage of this litigation with such designation, the dispute will be

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resolved pursuant to Central District of California Local Rule 37. In making or

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opposing

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INFORMATION, the party seeking to maintain a document as confidential shall bear

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the burden of showing specific prejudice or harm that will result if no protective

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order is granted.

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any

motion

relating

to

the

designation

of

CONFIDENTIAL

Nothing in this Protective Order shall preclude any party herein, their

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attorneys or any other person from disclosing or using, in any manner or for any

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purpose, any information or documents not obtained in discovery in this proceeding,

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if such information is lawfully obtained from a third party having the right to disclose

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such information, even though the same information or documents may have been

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produced in discovery in this proceeding and designated as CONFIDENTIAL

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INFORMATION.

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18.

Nothing in this Protective Order shall preclude any party herein or their

attorneys (a) from showing a document designated as CONFIDENTIAL
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INFORMATION to an individual who either prepared or reviewed the document

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prior to the filing of this action, or (b) from disclosing or using, in any manner or for

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any purpose, any information or documents from the party's own files which the

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party itself has designated as CONFIDENTIAL INFORMATION.

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19.

Nothing in this Protective Order shall require disclosure of material

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which the conveying party contends might constitute a breach of an agreement with a

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third party or is protected from disclosure by the attorney-client privilege, work-

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product immunity, or other applicable privilege or law. Withheld documents shall be

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disclosed by way of privilege log to the extent required by applicable law. This

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Protective Order shall not preclude any party from moving the Court for an order

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directing the disclosure of such material.

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20.

This Protective Order shall survive the termination of this litigation.

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Within sixty (60) days of the conclusion of this proceeding, upon the election of the

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producing party, all CONFIDENTIAL INFORMATION and all copies thereof shall

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be either returned to the producing party or destroyed and the receiving party shall

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confirm that such destruction has occurred. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition and

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trial exhibits, expert reports, attorney work product, and consultant and expert work

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product, even if such materials contain CONFIDENTIAL INFORMATION. Any

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such archival copies that contain or constitute CONFIDENTIAL INFORMATION

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remain subject to this Protective Order.

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21.

This Protective Order is without prejudice to the right of either 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 herein.

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THIS PROTECTIVE ORDER IS APPROVED AND STIPULATED TO BY:
Dated: May 1, 2013
SMITH DOLLAR PC

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By

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/s/ Rachel M. Dollar
Rachel M. Dollar
Richard R. Sutherland
Attorneys for Plaintiff and Counter-Claim
Defendant JPMorgan Chase Bank, N.A.

Dated: May 1, 2013
BAKER, KEENER & NAHRA, LLP

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By

/s/ Daniel P. Leonard
Phillip A. Baker
Daniel P. Leonard
Attorneys for Defendant and CounterClaim Plaintiff First Mortgage Corporation

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ORDER

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It is therefore ORDERED that all CONFIDENTIAL INFORMATION

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produced or disclosed by any party to this action may only be used by the party

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receiving the CONFIDENTIAL INFORMATION in accordance with this Order; it is

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further

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ORDERED that the parties to this action shall cooperate with one another in
interpreting and complying with this Order.

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DATED: May 6, 2013

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HONORABLE DAVID T.
BRISTOW

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EXHIBIT A

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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JPMorgan Chase Bank, N.A.,

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v.

Plaintiff,

First Mortgage Corporation,

CASE NO.: EDCV 12-02230
VAP(DTBX)
AGREEMENT TO BE BOUND BY
STIPULATED PROTECTIVE
ORDER

Defendant.

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I hereby acknowledge that I, _______________________, am about to receive

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CONFIDENTIAL INFORMATION supplied in connection with the above-

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referenced proceeding, Central District of California Case No. EDCV 12-02330

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VAP(DTBX). I certify that I understand that the CONFIDENTIAL

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INFORMATION has been provided to me subject to the terms and restrictions of the

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Stipulation and Protective Order filed in this proceeding. I have been given a copy of

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the Stipulation and Protective Order; I have read it, and I agree to be bound by its

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terms.

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I understand that CONFIDENTIAL INFORMATION, as defined in the

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Stipulation and Protective Order, including any notes or other records that may be

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made regarding any such materials, shall not be Disclosed to anyone except as

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expressly permitted by the Stipulation and Protective Order. I will not copy or use,

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except solely for the purposes of this Proceeding, any CONFIDENTIAL

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INFORMATION obtained pursuant to this Protective Order, except as provided

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therein or otherwise ordered by the Court in the Proceeding.
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I further understand that I am to retain all copies of all CONFIDENTIAL

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INFORMATION provided to me in the Proceeding in a secure manner, and that all

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copies of such CONFIDENTIAL INFORMATION are to remain in my personal

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custody until termination of my participation in this Proceeding, whereupon the

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copies of such CONFIDENTIAL INFORMATION will be returned to counsel who

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provided me with such CONFIDENTIAL INFORMATION.

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I declare under penalty of perjury, under the laws of the State of California,

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that the foregoing is true and correct. Executed this _____ day of

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_________________, 20____, at ___________________________.

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Dated:

By:
Signature

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Title

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