Munoz, et al. vs. PHH Mortgage Corp., et al.

Filing 91

Stipulated addendum and ORDER regarding production of documents by non-parties. Order signed by Magistrate Judge Dennis L. Beck on 7/22/2010. (Hernandez, M)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 v. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION EFRAIN MUNOZ, LEONA LOVETTE and STEPHANIE MELANI, individually and on behalf of all others similarly situated, Plaintiffs Case No. 1:08-CV-00759-AWI-DLB PHH CORP., PHH MORTGAGE CORP., PHH HOME LOANS, LLC, and ATRIUM INSURANCE CORP., Defendants. STIPULATED ADDENDUM AND ORDER REGARDING PRODUCTION OF DOCUMENTS BY NON-PARTIES The Court, with the consent of Plaintiffs and Defendants (collectively the "Parties") hereby 15 orders as follows: 16 Pursuant to the Court's authority under Fed. R. Civ. P. 26(c) and with the consent of the 17 Parties, the Court enters this Addendum to the Confidentiality Stipulation and Order (the "Order") 18 entered by this Court on February 26, 2009 (Docket Entry 49) to expedite the flow of Discovery 19 Materials from non-parties, facilitate the prompt resolution of disputes over confidentiality, 20 adequately protect material that is produced by non-parties that is entitled to be kept confidential and 21 ensure that protection is afforded only to material so entitled. It is anticipated that Discovery 22 Materials produced in this litigation by non-parties will contain confidential financial or 23 commercially sensitive information, and no public interest is served by the public disclosure of such 24 information. While sharing of the materials will promote fairness and efficiency within the context 25 of the instant lawsuit, entry of this Order (and its concomitant restriction on release of confidential 26 materials to third parties not governed by its terms) works no articulable harm to the interests of 27 28 Case No. 1:08-CV-00759-AWI-DLB Stipulated Addendum & [Proposed] Order re Prod. of Docs by Non-Parties 1 1 public health and safety or the right of the public to access information concerning judicial 2 proceedings. Cf. Pansy v. Borough of Stroudsburg, 23 F. 3d 772, 787-89 (3d Cir. 1994). 3 Accordingly, it is hereby ORDERED: 4 1. During the 30-day period established by Paragraph 5 of the Order pursuant to which 5 materials produced by non-parties are treated as if designated "Confidential" and thereafter, in 6 addition to the protections provided by the Order for materials designated as "Confidential," the 7 following protections shall apply to any material produced by a non-party that is designated by the 8 producing party as "Highly Confidential" in accordance with the provisions herein: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 1:08-CV-00759-AWI-DLB Stipulated Addendum & [Proposed] Order re Prod. of Docs by Non-Parties 2 A. Disclosur e may be made only to the following: i. Attorneys at the law firms signing below who are representing the Parties in this Litigation and who are identified by name on Exhibit A to this Addendum, including inhouse lawyers actively involved in the Litigation ("Litigation Counsel"). Exhibit A may be updated by the Parties to reflect the addition of individuals working as Litigation Counsel; ii. Essential business persons who are identified by name on Exhibit B to this Addendum, and who Litigation Counsel has specifically certified in writing have a need to see the material for the purpose of advising and assisting with the Litigation and who have signed an acknowledgement that they will be bound by the Order and this Addendum, will not disseminate or disclose the material, or information contained therein or derived therefrom, to anyone, including without limitation other employees of Defendants, will maintain the confidentiality of the material and will not use the information for any purpose other than the Litigation, and not for commercial or competitive purposes; iii. iv. v. The Court and its personnel, in connection with this proceeding; Court Reporters (as defined in the Order); Any Named Plaintiff in this action who has signed an acknowledgement that he or she will be bound by the Order and this Addendum, will not disseminate or disclose the material, or information contained therein or derived therefrom, to anyone, will maintain the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confidentiality of the material and will not use the information for any purpose other than the Litigation; vi. Expert witnesses and consultants (as set forth in the Order) working with Litigation Counsel who are not working for or with one of the mortgage insurance companies, and who have signed an acknowledgement that he or she will be bound by the Order and this Addendum, will not disseminate or disclose the material, or information contained therein or derived therefrom, to anyone, will maintain the confidentiality of the material and will not use the information for any purpose other than the Litigation; and vii. Any person or individual who may testify as a witness either at a deposition or court proceeding in this action who has signed an acknowledgement that he or she will be bound by the Order and this Addendum, will not disseminate or disclose the material, or information contained therein or derived therefrom, to anyone, will maintain the confidentiality of the material and will not use the information for any purpose other than the Litigation, provided however that such disclosure may only occur for the purpose of assisting the preparation or examination of the witness (this category hereinafter referred to as "Witness"), provided however that such disclosure shall only be made to a Witness: (a) who is a current employee of the Producing Non-Party of the "Highly Confidential" Discovery Materials; or (b) who is a former employee of the Producing Non-Party and who originally created or received the document in the ordinary course of that employment; or (c) who is a former employee of the Producing Non-Party and who had an authorized right of access to the document in the ordinary course of that employment; or (d) if the material was already in the public domain or otherwise disclosed to the public; or 3 Case No. 1:08-CV-00759-AWI-DLB Stipulated Addendum & [Proposed] Order re Prod. of Docs by Non-Parties 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 2. (e) who is an author, addressee, or recipient of the material in question, or if there are other indicia that the witness has seen the document previously; or (f) if the party seeking to disclose the material provides counsel for the Producing Non-Party with advance written notice, via electronic mail/PDF, or hand delivery, at least five (5) business days before disclosure, that states the identity of the material for which disclosure is sought and the identity of the witness to whom disclosure would be made. Counsel for the Producing Non-Party may challenge the proposed disclosure of material pursuant to this provision, by providing counsel for the party seeking disclosure with a written objection, via electronic mail/PDF or hand delivery, within four (4) business days thereafter. If a written objection is made, the party seeking disclosure shall not proceed with disclosure unless authorized to do so by a order of a Court with jurisdiction over the Producing Non-Party. The Producing Non-Party shall be provided copies of any Certification or 18 Acknowledgement provided hereunder pursuant to Section 1 above at the time they are executed and 19 in advance of the disclosure of any materials designated as "Highly Confidential" hereunder. 20 3. As used herein, the term "Highly Confidential" information shall mean any material 21 produced by a non-party and that is designated as "Highly Confidential" that contains trade secrets, 22 highly sensitive and non-public research and analysis, customer information, financial, marketing, 23 and strategic business planning information (including past information indicative of current 24 policies), non-public information concerning pricing methodology, information relating to research, 25 development, and plans for existing and proposed future products or services, information relating to 26 the processes, apparatus, or analytical techniques used by a party in its present or proposed 27 28 Case No. 1:08-CV-00759-AWI-DLB Stipulated Addendum & [Proposed] Order re Prod. of Docs by Non-Parties 4 1 commercial use of such products or services, communications regarding any of the Highly 2 Confidential Material, and any other information that a party believes in good faith could be used by 3 a competitor to harm business. 4 4. Any Producing Non-Party may designate as "Highly Confidential" any Discovery 5 Materials that the Producing Non-Party believes, in good faith, contains Highly Confidential 6 Information. Any Producing Non-Party may designate any Discovery Materials as "Highly 7 Confidential" by affixing to the first page of, or upon the face of, the Discovery Materials, prior to 8 production, a stamp bearing the word "Highly Confidential" in a location that makes the designation 9 readily apparent. 10 5. Prior to any hearing or trial at which the use of "Highly Confidential" Discovery 11 Materials is anticipated, the Parties and Non-Parties shall meet and confer regarding the use of such 12 Discovery Materials. If the Parties and Non-Parties cannot agree, they shall promptly request a 13 Court with jurisdiction over the Producing Non-Party to rule on such procedures. The Party or 14 Parties that wish to use the document designated as "Highly Confidential" shall have the burden of 15 persuasion. 16 6. If, and only if, the Producing Non-Party believes in good faith that certain materials 17 are of such extremely sensitive and confidential nature that their disclosure even under the Highly 18 Confidential designation above would create a substantial adverse impact on the Non-Party's 19 business, financial condition, ability to compete, standing in the industry or any other risk of injury 20 that could not be avoided by less restrictive means, the Producing Non-Party may designate such 21 material as "Highly Confidential -- Attorneys Eyes' Only," and until obtaining the prior written 22 consent of the Producing Non-Party making such designation, or an order of a court with jurisdiction 23 over such Non-Party, in-house counsel and essential business persons shall be prohibited from 24 viewing those materials or information derived therefrom, notwithstanding Section 1.A.ii. above. 25 In no event will Producing Non-Parties designate material as "Highly Confidential -- Attorneys 26 Eyes' Only" if such material is substantially the same type of material as the Producing Non-Party 27 28 Case No. 1:08-CV-00759-AWI-DLB Stipulated Addendum & [Proposed] Order re Prod. of Docs by Non-Parties 5 1 has shared with Defendants previously without such designation. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 IT IS SO ORDERED 17 22 July 2010 18 19 20 21 22 23 24 25 26 27 28 Case No. 1:08-CV-00759-AWI-DLB Stipulated Addendum & [Proposed] Order re Prod. of Docs by Non-Parties 6 Dated: July 9, 2010 Respectfully submitted, /s/ Edward W. Ciolko Edward W. Ciolko Terence S. Ziegler Donna Siegel Moffa BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667­7706 Attorneys for Plaintiff /s/ David M. Souders__________________________ David M. Souders WEINER BRODSKY SIDMAN KIDER, PC 1300 19th Street NW 5th Floor Washington, DC 20036-1609 Attorneys for Defendants /s/ Dennis L. Beck U.S. MAGISTRATE JUDGE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A TO THE STIPULATED ADDENDUM AND [PROPOSED] ORDER REGARDING PRODUCTION OF DOCUMENTS BY NON-PARTIES Counsel for Plaintiff BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP Joseph H. Meltzer Edward W. Ciolko Terence S. Ziegler Donna Siegel Moffa Tracey Shreve Joshua Schumacher Michelle A. Coccagna Mark K. Gyandoh Amanda Trask Joseph A. Weeden BRAMSON PLUTZIK MAHLER & BIRKHAEUSER Alan R. Plutzik Jennifer Rosenberg BERKE BERKE & BERKE Andrew L. Berke Megan Demastus TRAVIS & CALHOUN Eric G. Calhoun Counsel for Defendants WEINER BRODSKY SIDMAN KIDER PC Mitchel H. Kider David M. Souders Sandra B. Vipond Vanessa L. Tran Michael Y. Kieval PHH MORTGAGE CORPORATION Walter Wronka (in-house counsel) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT B TO THE STIPULATED ADDENDUM AND [PROPOSED] ORDER REGARDING PRODUCTION OF DOCUMENTS BY NON-PARTIES Michael Bogansky PHH Mortgage Corporation

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