Hawker et al v. BancInsurance, Inc. et al

Filing 39

STIPULATED PROTECTIVE ORDER, signed by Magistrate Judge Stanley A Boone on 7/2/2013. (Gaumnitz, R)

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Patrick J. Richard (CA 131046)
[e-mail]
James H. Vorhis (CA 245034)
[e-mail]
Nossaman LLP
50 California Street, 34th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415.398.2438

Joan M. Cotkin (CA 70665)
[e-mail]
8 Nossaman LLP
777 S. Figueroa St., 34th Floor
9 Los Angeles, CA 90017
Telephone: [phone]
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Facsimile: 213.612.7801
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Attorneys for the Federal Deposit
12 Insurance Corporation as Receiver for
County Bank, Plaintiff as assignee of
13 certain claims
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Jonathan D. Joseph, (CA 90564)
Jonathan M. Cohen, (CA 168207)
[e-mail]
Joseph and Cohen, APC
1855 Market Street
San Francisco, CA 94103
Telephone: [phone]
Facsimile: 415.874.1997
Attorneys for Plaintiffs
Thomas T. Hawker, John J. Incandela, Dave
Kraechan, Edwin Jay Lee, and Edward J.
Rocha

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Edward F. Donohue (SBN 112730)
[e-mail]
Christopher J. Borders (SBN 135901)
[e-mail]
John T. Meno (SBN 231238)
[e-mail]
HINSHAW & CULBERTSON LLP
One California Street, 18th Floor San
Francisco, CA 94111
Telephone: [phone]
Facsimile: 415-834-9070

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Attorneys for Defendant BANCINSURE, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS T. HAWKER; JOHN J.
21 INCANDELA; DAVE KRAECHAN;
EDWIN JAY LEE; and EDWARD J.
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ROCHA,
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Case No: 1:12-cv-01261-LJO-SAB
STIPULATED PROTECTIVE
ORDER

Plaintiffs,

Complaint Filed: August 1, 2012
Trial Date: June 6, 2014

v.

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BANCINSURE, INC. and DOES 1
26 through 10,
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Defendants.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Local
Civil Rule 141.1, and subject to approval by the Court, Plaintiffs Thomas T.
Hawker, John J. Incandela, Dave Kraechan, Edwin Jay Lee, and Edward J.
Rocha (collectively “Plaintiffs”), the Federal Deposit Insurance Corporation
as Receiver for County Bank, plaintiff as assignee of certain claims (the

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“FDIC-R”), and Defendant BancInsure, Inc., (“BancInsure”) (the FDIC-R,

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Plaintiffs and BancInsure are referred to herein individually as “Party” and

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collectively as the “Parties”), by and through their counsel of record, hereby

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stipulate to a protective order consisting of the following terms regarding
non-disclosure of Confidential Material to be produced by the Parties:
1.

Purpose. In connection with discovery in this case, the Parties

and/or third persons/entities who are not parties to this litigation, may
furnish and/or produce certain documents, including, but not limited to,
documents containing confidential, financial, personal, trade secret, and/or
proprietary information related to a party’s or a third party’s financial
condition, business plans, business operations, agency, underwriting,
investigation, contracts, agreements, claims handling procedures, practices
and operations, or other private or confidential matters. Such documents
have not been made public and have been the subject of efforts that are
reasonable under the circumstances to maintain their privacy. The
disclosure of such documents or information derived or obtained therefrom
might harm a party’s competitive position, and might harm constitutionally
protected privacy rights of the Parties or third persons/entities. Accordingly,
the Parties stipulate that such documents are confidential and shall not be
disclosed by any party or any of their agents or representatives, except as
set forth under the terms of this Stipulation and Order. The parties
acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items
that are entitled to confidential treatment under the applicable legal
principles. The parties further acknowledge, as set forth in Section 19,
below, that this Order does not entitle them to file confidential information
under seal; Civil Local Rule 141 sets forth the procedures that must be
followed and the standards that will be applied when a party seeks
permission from the court to file material under seal.
2.

Definition of Confidential Material. For purposes of this

Stipulation and Order, “Confidential Material” includes, without limitation,
certain documents, records, and information composed or stored in written,
electronic, digital, or any other medium, produced by the FDIC-R, Plaintiffs,
BancInsure or a third party pursuant to this Stipulation and Order, and any
information identifying any names, addresses, account information,
personal information (such as social security number, date of birth, and any
other personal identification information) recognized by law as, or required
to be maintained as, confidential; and further includes, without limitation,
the following:
a.

Regulatory: Confidential Material related in any way

to the regulation or supervision of County Bank (“Bank”), in
whatever form, whether preliminary or final, including reports of
examination or inspection, regulatory correspondence, reports,
orders, memoranda, or agreements by, from or with the FDIC in
its corporate capacity, the California Department of Financial
Institutions, or any other federal or state regulatory authority, and
any documents containing Confidential Material obtained from
any documents and records related to the supervision or

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regulation of the Bank. The Parties understand and agree that
the release of documents created by governmental agencies
other then the FDIC in its receivership capacity may require
approval from those other governmental agencies. Confidential
Material includes documents that are confidential and exempt
from disclosure as provided in the FDIC’s FOIA regulations, 12
C.F.R. § 309, the laws of the State of California, and any other
applicable federal or state laws.
b.

Bank and Bank Customers: Confidential Material

related to the Bank, its customers, any trading company involved
in placing orders for commodities futures or options, or any other
entity, including: ACH items or transactions, chargebacks,
merchant processing, bank account information, signature cards,
bank statements, general ledger entries, deposit or reserve
information, commodity trading statements, loans and lending
transactions, loan applications, financial statements and credit
reports, business and personal state and federal income tax
forms, related loan documentation relating to any extension of
credit or loan to any borrower, other previously designated
confidential business records, and documents containing trade

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secrets. Examples of “Confidential Material” include, without

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limitation, documents containing a customer’s account number,

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credit card number, personal identification number, account
balance, information relating to a deposit account, loan, or
borrower relationship and loan application materials, and
documents or information that contain the customer’s name,
address, social security number, date of birth or other similar

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identifying information.

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c.

receivership of the Bank, including any information on loss or
estimates of such loss on the Bank’s assets. Notwithstanding
the provisions of section 5(a)-(d) and (k), no Confidential
Material related to the receivership of the Bank shall be
disclosed to any person or entity known to have any current or
prospective interest in such assets, whether or not that person or
entity would otherwise be allowed access to documents and
information under the terms of this Stipulation and Order.

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Receivership: Confidential Material related to the

d.

Other: Any Party may seek an amendment to this

Stipulation and Order to designate confidential documents and
information in addition to the categories described above before
production of any such documents and information. The Parties
agree to meet and confer in good faith and attempt to reach
agreement on any request by a Party to designate such
additional categories of confidential documents or information.
3.

Confidential Designation and Treatment of Confidential

Material.
a.

As to hard-copy documents produced pursuant to this

Order which a Party seeks to deem to be Confidential Material, the
documents shall be identified and conspicuously marked
“CONFIDENTIAL.” Such identification and marking shall be made at the
time when the document is produced by such party. Any such stamp or
designation shall not cover up, obscure or otherwise conceal any text,
picture, drawing, graph or other communication or depiction in the
document. As reasonably practicable, to the extent the document contains

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both confidential and non-confidential information, the designating Party
shall delineate the portions constituting Confidential Material and the
remaining portions of the document or material not deemed Confidential.
Except as otherwise provided in 12 C.F.R. 309, in the event there is a
dispute over whether a particular document or set of documents is
Confidential Material, the receiving/objecting Party may raise that issue with
the court and shall maintain its copy(ies) of the challenged documents in
confidence unless and until a ruling is issued by the court.

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b.

form other than documentary which a Party seeks to deem to be
Confidential Material, the Producing Party shall affix in a prominent place
on the exterior of the container or containers in which the information or
item is stored the legend “CONFIDENTIAL.” If only a portion or portions of
the information or item warrant protection, the Producing Party, to the
extent practicable, shall identify the protected portion(s).

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As for any tangible items or information produced in some

c.

As to testimony given in deposition or in other pretrial or

trial proceedings, that the Designating Party identify on the record all
protected testimony within the time parameters set by Paragraph 9a, below.
4.

Nondisclosure of Confidential Material. All Confidential

Material produced by the Parties and/or third persons/entities who are not
parties to this litigation, and information derived or obtained therefrom, shall
be used by the Parties (and related persons and/or entities described in
Paragraph 5, below) solely and exclusively for purposes of this litigation
and not for commercial purposes or any purpose whatsoever unrelated to
this litigation. Absent further written agreement between the Parties, all
such Confidential Material shall be treated as strictly confidential and shall
not be disclosed, discussed, or in any way divulged by the Parties (or

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related persons and/or entities described in Paragraph 5, below), except as
permitted under this Order. Notwithstanding the provisions of this section,
a Party may disclose its own Confidential Material to any person it deems
appropriate with or without conditions to the disclosure and without waiving
any claim of protection under this Agreement.
5.

Exceptions to Nondisclosure. Notwithstanding anything to

the contrary herein, Confidential Material received pursuant to this
Stipulation and Order, and information derived or obtained therefrom, may
be disclosed to the following persons or entities:
a.

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Party deemed reasonably necessary by counsel to aid

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in the prosecution, defense, or settlement of this

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action;
b.

BancInsure's reinsurers, receivers and/or regulators;

c.

Counsel for the Parties, including all partners and

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associate attorneys of such counsel’s law firms and

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all clerks, employees, independent contractors,

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investigators, paralegals, assistants, secretaries,

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staff and stenographic, computer audio-visual and

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clerical employees and agents thereof when

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operating under the direct supervision of such

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partners or associate attorneys and who are actually

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working on this action, all of whom shall be bound by

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The Parties or an officer, director, or employee of a

this Order;
d.

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Vendors, experts and consultants engaged by
counsel of record for the Parties to assist or

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participate in the investigation and analysis of the

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Claims;
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taken in this action, except that such person only

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may be shown Confidential Material, and information

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derived or obtained therefrom, during his or her

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testimony, review of same, and in preparation

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therefor, and only to the extent relevant to such

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testimony, and may not copy or retain any such

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information;
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addressee or recipient thereof;
g.

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h.

The Court and its staff;

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The jury, if any;

j.

Those present in the Courtroom during the trial of
this matter, including all pre-trial and motion

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hearings, and during presentation/argument of this

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evidence unless the Court orders otherwise;
k.

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persons to whom the information is required to be
made available under the FOIA or the FDIC’s FOIA

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regulations, 12 C.F.R. § 309.5, upon receipt of a

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Court reporters used in connection with this action
and their employees;

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Persons who appear on the face of the Confidential
Material marked "CONFIDENTIAL" as an author,

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Any person from whom testimony is taken or to be

proper FOIA request for such information;
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individuals and entities permitted access to exempt
information under 12 C.F.R. § 309.6; and

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m.

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Any other person as to whom all Parties in writing
agree.

6.

Non-Disclosure of Confidential Material. All persons

described in Paragraph 5 above shall not disclose any Confidential
Material, including information derived or obtained therefrom, except in
conformance with this Stipulation and Order, and for purposes of this
litigation. With respect to official court employees, said employees shall not
be bound by the terms of this Stipulation and Order except to the extent of
normal court procedures and applicable laws for Court-ordered sealed
documents, such that Court administration is not unduly impeded. Any
party who wishes to keep Confidential Material confidential at the time of
trial shall show cause in advance of trial to proceed in a manner that
preserves the confidentiality of the Confidential Material. The Parties agree
that the procedures for protecting the confidentiality of Confidential Material
at the time of trial will be done in accordance with the Court’s instructions,
and that the Parties will cooperate in complying with such instructions.
7.

Confidentiality Agreement Certificate. Confidential Material

may only be disclosed to persons or entities identified in subparagraphs
5(c), (d), and (m) after the person or entity provided with such Confidential
Material agrees to be bound by this Stipulation and Order and signs a
written Agreement to Maintain Confidentiality, in the form attached as
Attachment A. Counsel of record who obtains a signed Agreement to
Maintain Confidentiality shall keep all Agreements to Maintain
Confidentiality containing original signatures for a period of at least three
years following termination of the litigation, including all appeal(s).
8.

Demands by Others for Confidential Material. If any other

person or entity demands, by subpoena or other judicial process, that a

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Party produce the Confidential Material produced by the other Party, the
Party receiving such demand shall promptly notify the Party that produced
the Confidential Material of such demand in no event less than 20 days
prior to the deadline to respond. At its option, the Party that produced the
Confidential Material may elect to challenge the demand and assert any
applicable protections and shall notify the other Party and the court or
tribunal that issued the demand of its challenge as required by law, the
subpoena, or other judicial process. The burden of proving that
Confidential Material is entitled to protection from disclosure shall lie with
the Party producing the Confidential Material. When such a challenge is
made, the Party who received the demand shall not produce any
Confidential Material in the absence of consent by the Party that produced
the Confidential Material, or an order by the issuing court or tribunal
compelling production. Any Party required to give notice to any other Party
under this Paragraph shall be deemed to comply if such notice is provided
to counsel of record signing this Stipulation and Order.
9.

Use of Confidential Material in Connection With

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Depositions.
a.

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Portions of deposition transcripts that contain testimony
referring to and/or exhibits containing Confidential

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Material may be designated as “CONFIDENTIAL” as soon

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as possible and in no event more then 15 days from the

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day such testimony was provided. If any testimony is so

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designated, the transcript of the testimony and/or exhibits

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designated as “CONFIDENTIAL” shall be marked as

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“CONFIDENTIAL” and identified as such by the court

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reporter in the deposition transcript. A Designating Party

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may elect to ask the court reporter to create a separate

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additional transcript which divides such Confidential

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Material into a separate portion of the same volume of the

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deposition transcript. The Parties agree that the

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disclosure of Confidential Material, testimony and/or

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exhibits containing or referring to Confidential Material to

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court reporters, videographers and/or their staff shall not

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change the confidential status of Confidential Material and

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shall not be deemed a waiver of privileges asserted as to

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the Confidential Material.
b.

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Confidential Material at a deposition, any party may

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exclude from the deposition all persons other than those

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to whom the Confidential Material may be disclosed under

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Paragraph 5 of this Stipulation and Order.
c.

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Any party may mark Confidential Material, or information
derived or obtained therefrom, as a deposition exhibit and

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examine any witness thereon, provided that the deposition

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witness is a qualified person to whom the exhibit may be

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disclosed under Paragraph 5 of this Stipulation and Order

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and that the exhibit and related transcript pages receive

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the same confidentiality designation as the original

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Where testimony or documents are designated as

Confidential Material.
d.

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In the event there is a dispute over any designation as
provided for in this Section 9, the objecting Party may

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raise that issue with the court and all parties shall

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maintain the challenged testimony as confidential unless

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and until a ruling is issued by the court.
10.

No Waiver or Alteration of Confidential Status. Neither this

Stipulation and Order, nor the production of Confidential Material, nor any
proceedings pursuant to this Stipulation and Order, shall be deemed an
admission or waiver, in whole or in part, of a Party’s claim of confidentiality,
either as to the specific information disclosed or as to any other information
derived or obtained therefrom. Nothing in this Stipulation and Order shall
be construed as limiting in any way the right of any party to object to
furnishing information sought by any other Party, any Party’s right to object
to information requested to be furnished by any third person/entity, or any
third person/entity’s right to object to furnishing information. This
Stipulation and Order is not intended to and, therefore, should not be
construed as affecting the right of any party to withhold information based
on a claim of privilege.
11.

No Waiver of Right to Object to Designation as Confidential

Material. Nothing in this Stipulation and Order shall be construed as
limiting in any way the right of any Party to object to another Party
designating documents as being “Confidential Material.” If any such
dispute cannot be informally resolved, it shall be resolved by the Court
upon noticed motion brought by the party asserting the claim of
confidentiality, and the party asserting such claim shall bear the burden of
proof that such information is confidential.
12.

No Waiver of Objections to Admissibility. Nothing in this

Stipulation and Order shall be deemed a waiver of any objections any party
may have to the admissibility of Confidential Material or information derived

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or obtained therefrom. All applicable objections are hereby expressly
reserved.
13.

No Waiver of Use of Producing Party’s Own Records. This

Stipulation and Order shall not affect a Party’s or third person/entity’s use of
its own information or documents.
14.

No Waiver From Inadvertent Disclosure. If any Party

inadvertently discloses and/or produces any Confidential Material which is
the subject of this Stipulation and Order, said inadvertent disclosure and/or
inadvertent production shall not be deemed a waiver, in whole or in part, of
a Party’s claim of confidentiality, either as to the specific information
disclosed or as to any other information relating thereto or on the same or
related subject matters.
15.

Return or Destruction of Documents. Within 30 days after

the final termination of the litigation, including all appeals, the Party
receiving Confidential Material shall obtain Confidential Material from any
persons identified in subparagraphs 5(a), (c), (d) and (m). All Confidential
Material marked "CONFIDENTIAL" shall be returned to the producing party
or destroyed unless (i) there is a separate written agreement between the
Parties allowing retention of such documents, in which case, the terms of
this Stipulation and Order will continue to govern; or (ii) the material has
been included within a claims file or other file or report which must be
preserved in whole pursuant to applicable state or federal statutes, rules or
regulations. All notes, memoranda, summaries or other documents in the
possession, custody or control of the parties referring to or relating to the
Confidential Material shall be destroyed, except counsel to each party may
retain one copy of pleadings, transcripts, exhibits, notes, memoranda and
correspondence even if such documents constitute or contain Confidential

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Material. Such material retained by counsel shall continue to be subject to
the terms and conditions of this Protective Order.
16.

No Waiver of Privileges. The Parties do not waive any

privilege, including any attorney-client privilege, work product privilege or
any other applicable privilege they might have, including, but not limited to,
any privilege that the Bank may have had or any federal or state regulatory
agency may hold, with respect to any of the documents and information
produced. A Party’s production of Confidential Material is not intended to,
and shall not, waive or diminish in any way the confidentiality of such
material or its continued protection under the attorney-client privilege, work
product doctrine or any applicable privilege as to any other third party.
Furthermore, in the event that a Party inadvertently produces
attorney-client privileged documents or information, and if that Party
subsequently notifies the other Party that the privileged documents or
information should not have been produced, the Parties agree to
immediately return the originals and all copies of the inadvertently produced
privileged documents and information. Nothing in this Stipulation and Order
shall prevent the FDIC-R from using any Confidential Material in any of its
capacities or for any lawful purposes.
17. Modification; Waiver; Headings. A modification or waiver of
any of the terms of this Stipulation and Order must be in writing and signed
by the Parties. The headings and captions in this Stipulation and Order are
inserted for convenience only and shall not affect the meaning or
interpretation of the provisions hereof.
18.

Binding Effect of Stipulation. This Stipulation and Order shall

continue to be binding after the conclusion of this litigation. At any time, a
Party may seek written permission from the producing party or order of the

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Court with respect to the relief from or dissolution or modification of this
Stipulation and Order.
19.

Filing of Confidential Materials with Court. Without written

permission from the Designating Party or a court order secured after
appropriate notice to all interested persons, a Party may not file in the
public record in this action any Protected Material. A Party that seeks to file
under seal any Protected Material must comply with Civil Local Rule 141.
Protected Material may only be filed under seal pursuant to a court order
authorizing the sealing of the specific Protected Material at issue. Pursuant
to Civil Local Rule 141, a sealing order will issue only upon a request
establishing that the Protected Material at issue is privileged, protectable as
a trade secret, or otherwise entitled to protection under the law.

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DATED: July 2, 2013

NOSSAMAN LLP

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By: /s/ James H. Vorhis
James H. Vorhis
Attorneys for Federal Deposit
Insurance Corporation, as
Receiver for County Bank, as
assignee of certain claims

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DATED: July 2, 2013

JOSEPH AND COHEN

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By: /s/ Jonathan A. Cohen
Jonathan A. Cohen
Attorneys for Plaintiffs Thomas
T. Hawker, John J. Incandela,
Dave Kraechan, Edwin Jay Lee
and Edward J. Rocha

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DATED: July 2, 2013

HINSHAW & CULBERTSON LLP

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By: /s/ Edward F. Donahue
Edward F. Donahue
Attorneys for Defendant
BancInsure, Inc.

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ORDER

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IT IS SO ORDERED.

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Dated:

July 2, 2013

_

_

UNITED STATES MAGISTRATE JUDGE

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ATTACHMENT “A”
AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER

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I hereby certify that I have received a copy of the Stipulation and
Order Regarding Non-Disclosure of Confidential Material issued in the
above-captioned action, “Thomas T. Hawker, et al. v. BancInsure, Inc., et
al.,” United States District Court, Eastern District of California, Case No.
1:12-cv-01261-LJO-SAB (the “Action”), and represent and agree as follows:
1.

I have read and understand the provisions of the Stipulation and

Order.
2.

I will comply with and agree to be bound by all of the provisions

of the Stipulation and Order.
3.

I will maintain all Confidential Material, including copies, notes,

or other transcriptions obtained or derived therefrom, in a secure manner to
prevent unauthorized access to it.
4.

No later than thirty (30) days after the conclusion of the Action, I

will return the Confidential Material, including copies, notes, or other
transcriptions obtained or derived therefrom, to the counsel who provided
me with the Confidential Material. I hereby consent to the jurisdiction of
said Court for the purpose of enforcing the Stipulation and Order.

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Signature:
Printed Name:
Date:
Company:
Address:
Telephone:
Cell Phone:

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12cv1261.o.proto.DOC

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