Federal Deposit Insurance Corporation v. Loanleaders of America, Inc.

Filing 22

STIPULATED PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 21 . (see document for details). (dro)

1 MORTGAGE RECOVERY LAW GROUP LLP
PAUL LEVIN (State Bar No. 229077)
2
LAUREN M. GIBBS (State Bar No. 251569)
3 ANDREW P. BAEZA (State Bar No. 263392)
700 NORTH BRAND BOULEVARD, SUITE 830
4
GLENDALE, CALIFORNIA 91203
5 TELEPHONE [phone]
EMAIL: [e-mail]
6
[e-mail]
7
[e-mail]
8

Attorneys for Plaintiff
9 Federal Deposit Insurance Corporation
as Receiver for IndyMac Bank, F.S.B.
10
11
UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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14

FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for
16 INDYMAC BANK, F.S.B.,

Case No. 8:14-cv-00957-CJC-RNB

17

[PROPOSED] STIPULATED
PROTECTIVE ORDER

15

18

Plaintiff,

Honorable Robert N. Block

vs.

19 LOANLEADERS OF AMERICA, INC.
20 f/k/a THE LOANLEADERS OF
AMERICA, INC., a California
21 corporation,
22
Defendant.
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[Proposed] Stipulated Protective Order

1

This case, brought by Plaintiff the Federal Deposit Insurance Corporation

2 (“FDIC”) in its capacity as Receiver for IndyMac Bank, F.S.B. (“FDIC-R” or
3 “Plaintiff”) necessarily involves confidential bank information and personally
4 identifiable information of borrowers that are generally protected from disclosure
5 under federal laws. Accordingly, because of the strict federal laws governing the
6 disclosure of such information, a protective order is necessary in order to protect the
7 information, the parties, and others who may need to be exposed to or review the
8 information. Plaintiff and Defendant, Loanleaders of America, Inc. f/k/a The
9 Loanleaders of America Inc. (“Loanleaders” or “Defendant”) appearing through its
10 counsel of record, stipulate and consent to the entry of this Order.
11

It appearing to the Court that the requested stipulated relief is warranted and

12 appropriate, and for good cause shown:
13

NOW, THEREFORE, IT IS HEREBY ORDERED:

14

1.

Scope of Protective Order. The parties contemplate that in the

15 course of this litigation they may produce to one another certain Confidential
16 Documents, as defined below, or portions of Confidential Documents in their
17 possession. The term “Document” is comprehensively defined to be synonymous in
18 meaning and equal in scope to the usage of the term in Rule 34(a) of the Federal
19 Rules of Civil Procedure, which defines document to include writings, drawings,
20 graphs, charts, photographs, phone records, and other data compilations from which
21 information can be obtained, including electronically stored information. The term
22 “Confidential Documents” shall specifically include, but not be limited to:
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a.

Regulatory Information: Confidential Documents

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related in any way to the regulation or supervision of IndyMac

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Bank, F.S.B. (“Bank”), in whatever form, whether preliminary or

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final, including reports of examination or inspection, regulatory

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

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from or with the FDIC, the Board of Governors of the Federal
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[Proposed] Stipulated Protective Order

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Reserve System, the Office of Financial and Insurance

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Regulation (“OFIR”), or any other federal or state regulatory

3

authority, and any documents containing confidential or

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privileged information obtained from any documents or records

5

related to the supervision or regulation of the Bank. The release

6

of any such regulatory documents may require prior approval

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from independent government agencies. No regulatory

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documents, however obtained, will be disclosed to anyone other

9

than Defendant and other persons or entities identified in
paragraph 4 below without prior approval by the respective

11

regulatory authority or a court order. Confidential Documents

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also include documents that are privileged, confidential, or

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exempt from disclosure as provided in the Freedom of

14

Information Act, 5 U.S.C. § 552 (“FOIA”), the regulations

15

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

16

309, the laws of the State of California, or any other applicable

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federal or state laws.

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18

b.

Bank and Bank Customer Information:

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Confidential Documents related to the Bank, or any non-party

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bank or financial institution, its customers, or any trading

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company involved in placing orders for commodities futures or

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options, including but not limited to: Automated Clearing House

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items or transactions, chargebacks, merchant processing, bank

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account information, customer bank records, signature cards,

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bank statements, general ledger entries, deposit or reserve

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information, commodity trading statements, loans and lending

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transactions, loan applications, financial statements and credit

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reports, business and personal state and federal income tax
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[Proposed] Stipulated Protective Order

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forms, correspondence, and loan documentation relating to any

2

extension of credit or loan to any borrower. Examples of

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Confidential Documents also include, without limitation,

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documents containing a Bank customer’s name, address, social

5

security number, date of birth, account number, credit card

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number, personal identification number, account balance,

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information relating to a deposit account, loan or borrower

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relationship, loan application materials, or any other identifying

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information.
c.

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Receivership Information: Confidential Documents

related to the receivership of the Bank, including any information

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on loss or estimates of such loss on the Bank’s assets that is not

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publicly available. Notwithstanding the provisions of paragraph

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4 of this Protective Order, no Confidential Documents shall be

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disclosed to any person or entity known to have any current or

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prospective interest in such assets, whether or not that person or

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entity would otherwise be allowed access to documents and

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information under the terms of this Order.

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d.

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Trade Secret/Proprietary Information: Documents

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and information that the producing party reasonably believes

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constitute, reflect, or disclose trade secrets, proprietary business

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information or data or commercially sensitive information, and

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which, if disclosed, will cause harm to its competitive position.

24 Irrespective of any confidential designation by a producing party, this Protective
25 Order shall not apply to any documents independently obtained from a non-party on
26 an unrestricted basis or documents that are publicly available.
27

2.

Manner of Designation. The parties shall designate

28 Confidential Documents by stamping or otherwise marking them with the legend
3
[Proposed] Stipulated Protective Order

1 “Confidential Documents Subject to Protective Order” or similar language. Any
2 document marked in this manner by either party shall be subject to this Order.
3

3.

Disclosure of Confidential Documents Prohibited.

4 Confidential Documents shall be used only for the purpose of this action and for no
5 other purpose. Except as provided by the express terms of this Protective Order, all
6 persons subject to this Order shall refrain from disclosing in any manner any
7 information set forth in any Confidential Documents. The transmission of
8 Confidential Documents between the FDIC in its capacity as Receiver for the Bank
9 and the FDIC acting in any other capacity shall not constitute disclosure for
10 purposes of this Order. Any such Confidential Documents transmitted among
11 various capacities of the FDIC shall remain subject to this Order and its prohibition
12 on disclosure.
13

4.

Exceptions to Prohibition on Disclosure. Counsel for a party

14 to this action may disclose Confidential Documents to the following persons, to the
15 limited extent such disclosure is necessary, under the following specified
16 circumstances:
17

a.

Officers or employees of any party in this action

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who are assisting counsel in the prosecution or defense of this

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action to the extent necessary for such assistance (including, but

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not limited to, the parties’ attorneys, investigators, paralegals and

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other employees);

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b.

Personnel of or counsel to any insurance company

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that issued any insurance policy under which Defendant is an

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insured (including, but not limited to, the Board of Directors, in-

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house attorneys, outside attorneys, investigators, experts,

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consultants, senior executives, and employees of any such

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insurance company) conducting, assisting, monitoring,

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reviewing, or making determinations with regard or related to the
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[Proposed] Stipulated Protective Order

1

litigation, provided that each such person signs a written

2

agreement to be bound by this Order in the form attached as

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Exhibit A; and reinsurers, auditors, or regulators to which any

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such insurance company is required to respond or report in the

5

ordinary course of business regarding the subject matter of this

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litigation, but only so long as such persons or entities are already

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subject to substantially similar confidentiality obligations;

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c.

As to the FDIC-R: (i) auditors or examiners

required or authorized by law to review materials that may
include Confidential Material; (ii) persons to whom the

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information is required to be made available under FOIA or the

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FDIC’s FOIA regulations, 12 C.F.R. 309.5, upon receipt of a

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proper FOIA request for such information; and (iii) individuals

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and entities permitted access to exempt information under

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12 C.F.R. 309.6;

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d.

Persons specially retained by any of the attorneys or

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parties to this action to assist in the preparation of this action,

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including but not limited to vendors, experts, consultants,

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mediators and arbitrators, provided that such persons require

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access to the Confidential Documents or information in order to

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perform the services for which they have been retained and

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provided that each such person signs a written agreement to be

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bound by this Order in the form attached as Exhibit A;

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e.

Any person of whom testimony is to be taken in this

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litigation, provided that such a person may only be shown

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Confidential Documents to the extent necessary for such

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testimony and provided that such person is apprised of the

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[Proposed] Stipulated Protective Order

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confidential nature of the documents pursuant to Paragraph 5,

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below; and
f.

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4

5.

The Court and court personnel.

Counsel’s Obligation to Inform. Prior to disclosing

5 Confidential Documents to any person pursuant to paragraphs 4(a)-(e), counsel
6 shall:
a.

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documents;
b.

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Apprise that person of the confidential nature of the

Apprise that person that this Court, pursuant to this

Order, has restricted the use of such documents; and
c.

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Show that person a copy of this Order, specifically

12

informing him of the contents of this Paragraph.

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6.

Non-waiver of Privilege; Inadvertent Disclosure. By agreeing

14 to the procedures in this Order, the parties do not waive any legal right or privilege
15 applicable to either the Confidential Documents or to any other request of, or
16 discovery procedure available to, the parties to this action. Further, inadvertent
17 disclosure of any privileged document in the course of discovery in this action shall
18 not constitute waiver of any applicable legal right or privilege. In the case of any
19 such inadvertent disclosure of privileged documents, the receiving party shall,
20 immediately upon becoming aware of the disclosure, or, if unaware of disclosure,
21 within five (5) business days of receipt of a written request by the producing party,
22 return the original to the producing party, destroy all copies thereof, as well as all
23 notes, memoranda or other documents that summarize, discuss, or quote the
24 document, and delete any copy of the document, or any portion thereof, from any
25 word processing database, tape, or disk the receiving party maintains. Return of a
26 document over which the producing party has asserted a claim of privilege,
27 protection, or immunity under this paragraph shall be without prejudice to the
28 receiving party’s right to seek an order from the Court directing the production of
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[Proposed] Stipulated Protective Order

1 the document on the ground that the claimed privilege, protection, or immunity is
2 invalid or inapplicable; provided, however, that mere production of the document or
3 information in the course of this action shall not constitute grounds for asserting
4 waiver of the privilege, protection, or immunity.
5

7.

Confidential Documents to Be Filed Under Seal. In the event

6 counsel for any of the parties wishes to file or submit to this Court any Confidential
7 Documents (by way of pleadings, motions, briefs or any other papers or oral
8 communication containing or making reference to such document or information),
9 counsel shall seek Court approval to file such papers under seal in accordance with
10 the procedures outlined in Local Rule 79-5.1 by filing an application to file the
11 papers – or the confidential portions thereof – under seal. The application shall be
12 directed to the judge to whom the papers are directed. Pending the ruling on the
13 application, the papers or portions thereof subject to the sealing application shall be

14 lodged under seal.
15

8.

Objections to Confidential Designation. If any party objects to

16 the designation of a particular document as confidential, the objecting party shall
17 give written notice of its objection to the designating party. If, within ten (10) days
18 from receipt of written notice, the parties have not reached an agreement concerning
19 confidential status of the documents, the objecting party may apply to the Court for
20 a ruling that the documents not be considered confidential and be deemed not
21 subject to this Order. In doing so, the parties must comply with any applicable local
22 rules for discovery disputes including, specifically, Local Rules 37-1 and 37-2.
23 Until such time as the Court has ruled on the objecting party’s application, all
24 parties shall continue to treat the document as confidential pursuant to the terms of
25 this Order. In any event, no confidential document or information shall lose its
26 confidential status through its use in connection with any dispute over its
27 confidential status, and the parties shall take all steps reasonably necessary to
28 protect the confidentiality of such document during its use.
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[Proposed] Stipulated Protective Order

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9.

Violation of this Order. If a party has cause to believe that a

2 violation of this Order has occurred or is about to occur, that party may petition this
3 or any other proper court for appropriate relief. To the extent any party feels the
4 protections of this Order are not adequate for particular Confidential Documents or
5 information, that party may petition the Court for an appropriate amendment to this
6 Order.
7

10.

Production of Confidential Documents in Response to

8 Subpoena or in Connection with Judicial Proceedings. Nothing in this Order
9 shall prohibit any party from using or disclosing Confidential Documents in
10 response to a subpoena or court order seeking production of Confidential
11 Documents or in connection with a criminal or administrative investigation by any
12 government or governmental body, grand jury proceedings, or the trial or pretrial
13 procedures and preparation of a criminal or administrative case.
11.

Return or Destruction of Confidential Documents. At the

14

15 conclusion of this action, all Confidential Documents and copies thereof in the
16 possession, custody or control of the parties shall be either returned to the producing
17 party or destroyed. All notes, memoranda, summaries or other documents in the
18 possession, custody or control of the parties referring to, describing, or relating to
19 Confidential Documents shall be destroyed, except that counsel to each party may
20 retain one copy of pleadings, transcripts, exhibits, notes, memoranda, and
21 correspondence even if such documents constitute or contain confidential
22 information. Such material retained by counsel shall continue to be subject to the
23 terms and conditions of this Protective Order, and shall be returned to the producing
24 party or be destroyed upon the expiration of the applicable statute of limitations for
25 claims related to that counsel’s representation of the receiving party.
26 //
27 //
28 //
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[Proposed] Stipulated Protective Order

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12.

Other Provisions. This Protective Order shall be binding upon

2 the parties hereto from the date of execution, notwithstanding the date of entry of
3 this Order by the Court.
4

This Protective Order shall not be amended, modified, or terminated without

5 Order of the Court.
6
7 IT IS SO ORDERED.
8
th
9 Dated this 6 day of March , 2015.

10
11

Robert N. Block
United States Magistrate Judge

12

13
14 Submitted by:
15 DATED: March 2, 2015

MORTGAGE RECOVERY LAW GROUP
LLP

16
17

By: /s/ Lauren M. Gibbs
Paul A. Levin
Lauren M. Gibbs
Andrew P. Baeza
Attorneys for Plaintiff FEDERAL DEPOSIT
INSURANCE CORPORATION as Recevier
for INDYMAC BANK, F.S.B.

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DATED: March 1, 2015

KAUFMAN DOLOWICH VOLUCK LLP

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By: /s/ Sanjay Bansal
Sanjay Bansal, Esq.
Vincent Green, Esq.
Attorneys for Defendant LOANLEADERS OF
AMERICA, INC. f/k/a THE LOANLEADERS
OF AMERICA, INC.

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[Proposed] Stipulated Protective Order

EXHIBIT A

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AGREEMENT TO MAINTAIN CONFIDENTIALITY

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I have read the Agreed Protective Order issued on _____________, 2015, in the
action entitled Federal Deposit Insurance Corporation as Receiver of IndyMac
Bank, F.S.B. v. Loanleaders of America, Inc. (the “Order”), a copy of which is
annexed hereto, and agree to abide by its terms. Additionally, I further agree to
consent to the jurisdiction of the United States District Court for the Central District
of California for the purposes of enforcement of the Protective Order.

10
11 Name:

Date:
(Signature)

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13 Name:

Telephone:
(Printed)

(Business)

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15 Company:

Telephone:
(Home)

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Telephone:
(Cell)
Address 1:

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20 Address 2:
21 City:
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State/Zip Code:

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[Proposed] Stipulated Protective Order