Federal Deposit Insurance Corporation v. Straub

Filing 35

CORRECTION OF DOCKET # 34 . ORDER re 31 STIPULATION WITH PROPOSED ORDER re Protective Order filed by Federal Deposit Insurance Corporation, Richard Straub. Signed by Magistrate Judge Donna M. Ryu on 5/10/2012. (dmrlc2, COURT STAFF) (Filed on 5/10/2012) Modified on 5/10/2012 (dmrlc2, COURT STAFF).

Case4:11-cv-03295-SBA Document31 Filed05/02/12 Page1 of 11

1 SUSAN D. CONDON (State Bar No. 143417)
[e-mail]
2 VALERIE M. WAGNER (State Bar No 173146)
[e-mail]
3 GCA LAW PARTNERS LLP
1891 LANDINGS DRIVE
4 MOUNTAIN VIEW, CA 94043
TELEPHONE: [phone]  FACSIMILE: [phone]
5
6 Attorneys for Plaintiff
Federal Deposit Insurance Corporation
7 as Receiver for IndyMac Bank, F.S.B.
8
9
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

10
11

12 FEDERAL DEPOSIT INSURANCE
Receiver
13 CORPORATION as F.S.B., for
INDYMAC BANK,
14
15

Plaintiff,

Case No. C11-03295-SBA
STIPULATION AND PROTECTIVE
ORDER
The Hon. Susan B. Armstrong

vs.

16 RICHARD STRAUB, an Individual and
17 dba STRAUB APPRAISAL ,
Defendants.
18

Complaint filed: July 6, 2011

19
20
21

Pursuant to the stipulation between plaintiff FEDERAL DEPOSIT

22 INSURANCE CORPORATION as Receiver for INDYMAC BANK, F.S.B. and
23 defendant, RICHARD STRAUB (collectively the “Parties”), and being fully advised
24 by the Parties, and good cause appearing, the Court now enters the following
25 Protective Order:
26
27
28
Protective Order

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1

PROTECTIVE ORDER

2

The following restrictions shall be observed as to such properly designated

3 Confidential Information as may be produced in discovery by the Parties to this
4 litigation:
5
6

I.

INTRODUCTION
A.

7

Definitions
1.

“Confidential Document” means any document produced that

8 bears the stamp or legend specified in Section II, Designation of Confidential
9 Information, below, which signifies that the Designating Person contends that the
10 document contains Confidential Information (as Confidential Information is defined
11 in the next paragraph) entitled to confidentiality under established principles of law.
12

2.

“Confidential Information” means a trade secret or other

13 confidential commercial information, sensitive or proprietary business or financial
14 information, personal information, or information furnished to the party producing
15 the information in confidence by a third-party. Documents that have been publicly
16 recorded will not be deemed to contain Confidential Information. The following
17 categories of documents, while not exclusive, are deemed to contain Confidential
18 Information:
19

a.

20

this litigation which include the borrower's private

21

financial information, and other related proprietary

22

business records. b.

23

loans at issue in this litigation which include the

24

borrower's private information.

25

c.

26

litigation which include the borrower's private financial

27

information.

“Loan Origination Files” for the loans at issue in

“Loan Servicing Files” for the

“Foreclosure Files” for the loans at issue in this

28
2

Protective Order

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1

d.

2

of Civil Procedure §1985.3.

3

3.

“Personal Records” as defined by California Code

“Document” or “Documents” means all written, recorded,

4 electronic or graphic material, whether produced or created by a party or another
5 person, and whether produced pursuant to document request, subpoena, by
6 agreement, or otherwise, and includes deposition transcripts and exhibits, where
7 applicable.
8

4.

“Designating Person” means the Party or Person who initially

9 produces the Document and marks it as “Confidential-Subject to Protective Order”
10 pursuant to this Protective Order.
11

5.

“Party” or “Parties” means any person or entity that is named as

12 a party to this litigation.
13

6.

“Person” means any natural person, or any legal or business

14 entity, profit or nonprofit organization, or any government agency.
15

7.

“Discovery Material” means: (a) all documents produced in this

16 action; (b) all deposition testimony taken in this action, exhibits thereto and any
17 video or transcripts thereof, whether in written or computer format; and (c)
18 responses to interrogatories, responses to requests for admission, and all other
19 written discovery served or filed in this action and all contents of such discovery.
20

8.

“Disclose” means to show, give, make available, reproduce,

21 communicate or excerpt any Discovery Material, or any part or contents thereof.
22
23

B.

Good Cause
This action involves a contract dispute between the Parties relating to

24 mortgage loans, and representations made in connection with certain appraisals
25 prepared in furtherance of said mortgage loans. This litigation will involve the
26 review and analysis of Loan Origination Files, Loan Servicing Files, Foreclosure
27 Files, and other Personal Records of individuals who applied for and obtained
28 mortgage loans at issue. Good cause exists to grant the Parties' request for a
3

Protective Order

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1 Protective Order to (1) preserve the privacy interests of third-party borrowers; (2)
2 protect the confidential business records and proprietary information of the plaintiff
3 and defendant; and (3) allow the Parties to exchange information in the most
4 expeditious fashion possible, with a minimum burden, expense, dispute, and delay.
5 Pursuant to 15 U.S.C. § 6802(e)(8), the production of non-public personal financial
6 information, protected by the measures set out in this Protective Order, shall not
7 constitute a violation of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, et seq.
8 (Marks v. Global Mortgage Group, Inc., 218 F.R.D. 492, 496 (S.D. W.Va. 2003).)
9

C.

10

Scope of Protective Order
1.

This Protective Order applies to all Parties to this action and

11 their counsel as well as retained and non-retained experts and/or consultants.
12

2.

Nothing in this Protective Order shall require disclosure of any

13 information or material that is protected from disclosure by any applicable
14 privilege.
15

3.

Any Party hereto may make a good faith objection to the

16 designation of any document, response, testimony, or information as “Confidential
17 Information” by the Designating Person, and may make a motion for an order
18 compelling disclosure of and/or access to such material without restriction, after
19 attempting to resolve the objection with the Designating Person. Applicable
20 Federal and/or California law shall govern the burden and standard of proof on any
21 such motion. Prior to the submission of any such dispute to the Court, the
22 challenging Party shall provide written notice to the Designating Person of its
23 disagreement with the designation, and those Persons shall try first to resolve such a
24 dispute in good faith. Pending the resolution of any such objection or motion, any
25 Discovery Material, the confidentiality of which is disputed, shall remain subject to
26 the terms of this Protective Order. A Party shall not be obligated to challenge the
27 propriety of information designed as Confidential Information at the time the
28
4

Protective Order

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1 designation is made and failure to do so shall not preclude a subsequent challenge
2 thereto.
3

4.

This Protective Order shall not abrogate or diminish any

4 contractual, statutory, or other legal obligation or right of any Party or Person with
5 respect to information designated as "Confidential Information" pursuant to this
6 Protective Order. The fact that information is or is not designated as “Confidential
7 Information” under this Protective Order shall not determine what a trier-of-fact
8 may find to be confidential or proprietary.
9

5.

This Protective Order shall not govern the use by a Party of any

10 Discovery Material otherwise lawfully in its possession, notwithstanding the fact
11 that the Party either produces that Discovery Material in the course of discovery in
12 this action or receives a duplicate copy of that Discovery Material through
13 discovery in this action.
14

6.

The Parties may agree in writing to accord Discovery Material

15 produced in this action even greater confidentiality protection than that provided in
16 Section II of this Protective Order, and nothing in the provisions of this Protective
17 Order shall be deemed to preclude any Person from seeking and obtaining from the
18 Court such additional protection with respect to the confidentiality of Discovery
19 Material as may be appropriate or necessary.
20

7.

Discovery Material shall not be disclosed to any Person or entity

21 except as expressly set forth herein. All Discovery Material produced or provided
22 by any Designating Person in connection with this litigation shall be used by the
23 Parties only for the purposes of this action, including depositions, motions, pre-trial
24 preparation, trial or appeal. Otherwise, except by order of the Court, such
25 Discovery Material shall not be used by any Party other than the producing Party
26 for any other purpose.
27

8.

Inadvertent production of privileged information shall not

28 constitute a waiver of any applicable privilege. Upon written notice by the
5

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1 producing or designating Party that privileged information was inadvertently
2 produced, all Parties shall destroy or return all copies of the information to the
3 producing or designating Party within ten (10) days of such notice.
4

9.

In instances where a document to be used in an exhibit to a

5 motion contains any of the following: the borrower’s social security number, wage
6 or salary history and bank account numbers, those items may be redacted and the
7 document may be used as an exhibit by the moving party without need for a motion
8 under seal. The moving party seeking to use the document with Confidential
9 Information on the document must notify and provide the redacted items to the
10 designating party ten (10) days before filing the motion.
11
12

II.

CONFIDENTIAL INFORMATION
A.

13

Designation of Confidential Information
1.

A Designating Person, who reasonably believes in good faith

14 that a Document being produced contains Confidential Information, may designate
15 such Document as containing such information only by: (1) Bates stamping such
16 Document; and (2) stamping such Document with the following legend:
17 “CONFIDENTIAL.”
18

2.

Failure of any Designating Person to designate Confidential

19 Information in the manner described in Paragraph 1 hereof shall not preclude any
20 Designating Person from thereafter in good faith making such a designation.
21 Documents and materials so designated shall be fully subject to this Protective
22 Order and treated thereafter according to the new or corrected designation.
23
24

B.

Qualified Person Re Confidential Information
Any document or other Discovery Material designated as “Confidential

25 Information” may be disclosed only to the following Persons and/or entities:
26

1.

The Court, its officers, jury, and any special master, referee, or

27 mediator authorized to act in this proceeding;
28
6

Protective Order

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1

2.

Counsel of record for the Parties to this action, and their

2 employees or employee equivalents (e.g., legal assistants, secretaries, clerical staff,
3 copy vendors, etc.) who are regularly employed by such counsel and who are
4 actively engaged in assisting such counsel in this action;
5

3.

Court reporters, deposition reporters, and their staff, to the

6 extent necessary to perform their duties;
7

4.

Witnesses in the course of a deposition taken in this action;

8

5.

The Parties to this action, and those officers, directors, managing

9 agents, or employees of the Parties hereto who are actively engaged in the
10 preparation of this action for trial or for other resolution;
11

6.

Any retained or non-retained expert and/or consultant who is

12 engaged in the preparation of this action for trial or for other resolution and who
13 agrees in writing to be bound by the confidentiality requirements of this Order by
14 executing “Acknowledgement of Protective Order and Agreement to Be Bound”
15 that is attached hereto as Exhibit A.
16

C.

17

Limited Use of Confidential Information
Documents and Discovery Material designated “Confidential

18 Information” shall be used solely for this lawsuit, and shall not be used for any
19 other purpose, including, but not limited to, any other litigation, arbitration, or
20 claim.
21
22

D.

Filing Under Seal of Confidential Information
If a Party desires to use a Confidential Document or Confidential

23 Information in support of a motion, opposition to a motion, or other document filed
24 with the Court, the Party shall accompany its papers with an Application to file the
25 Confidential Document under seal strictly pursuant to the rules of this Court. The
26 Application shall be directed to the judge to whom the motion, opposition or other
27 papers are directed. Pending the ruling on the Application, the papers or portions
28 thereof which are subject to the Application shall be lodged under seal.
7

Protective Order

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1

E.

2

Hearing Re Confidential Information
Counsel for any Party may request, which request may or may not be

3 granted, that any hearing or testimony with respect to information that has been
4 designated "Confidential Information" by that Party should not be disclosed to
5 anyone other than the counsel, Parties, and experts hereto, pending further order of
6 the Court.
7
8

F.

Depositions Re Confidential Information
The Parties may use Confidential Documents and Confidential

9 Information during depositions in this action. In the event that any document or
10 other Discovery Material designated as "Confidential Information" is marked as an
11 exhibit in a deposition, or any question is asked at a deposition that calls for or
12 requires the disclosure of Confidential Information, any Party may request within
13 twenty (20) days after receipt of the transcript of the deposition (through written
14 notice to all Parties) that any portion of such deposition transcript relating to
15 Confidential Information be designated pursuant to this Protective Order. If the
16 designation is made after the court reporter has prepared the transcript, each counsel
17 shall be responsible for appropriately labeling all of his or her copies of such
18 deposition transcript.
19

Any Party also may request at the deposition (through a notation on the

20 record) that the portion of the deposition transcript relating to such Confidential
21 Information be treated as follows:
22

The reporter shall separately bind the portion(s) of the transcript

23 containing Confidential Information, and any exhibit(s) to the deposition designated
24 as “Confidential Information,” and shall mark such portion(s) and exhibit(s)
25 substantially as follows:
26

CONFIDENTIAL INFORMATION

27

FDIC v. STRAUB

28

Case No. C11-03295 SBA
8

Protective Order

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1
2 III.

POST-DISCOVERY TREATMENT OF DESIGNATED

3

INFORMATION

4

1.

This Protective Order shall not govern at trial. The Parties to

5 this action shall attempt to agree on procedures to protect at trial the confidentiality
6 of information designated pursuant to this Protective Order and shall, reasonably
7 prior to trial, submit such proposed procedures to the Court for its approval or
8 modification.
9

2.

Not later than thirty (30) days after the final disposition of this

10 litigation, including any appeals, all Discovery Material shall, at the option of the
11 Receiving Party, be returned to counsel for the Producing Party or to the
12 Designating Persons or destroyed and a certificate of destruction provided.
13 Receiving Party is not responsible for the cost and manner of destruction. If any
14 Discovery Material is furnished under this Protective Order to any expert or to any
15 other Person, the attorney for the Party retaining such expert or furnishing the
16 Discovery Material shall be responsible to ensure that it is returned and disposed of
17 pursuant to this Protective Order.
18

3.

No part of the terms of this Protective Order may be terminated,

19 except by the written stipulation executed by counsel of record for each Party, or by
20 an order of this Court for good cause shown. This Protective Order shall survive
21 any final disposition of this case, and after termination of this action, the Court shall
22 retain jurisdiction to enforce or modify this Protective Order.
23

4.

If at any time any Confidential Information protected by this

24 Protective Order is subpoenaed or requested by any court, administrative or
25 legislative body, person or entity, other than a Party to this action purporting to
26 have authority to require the production of such information, the Party to whom the
27 subpoena or other request is directed shall immediately give written notice thereof
28 to any Party which has designated such information as Confidential Information so
9

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1 as to advise such Party of the need to promptly obtain a protective order or act to
2 quash the subpoena. The Party to whom the subpoena or other request is directed
3 shall not produce the Confidential information until the party seeking to maintain
4 confidentiality has had thirty (30) calendar days to obtain an appropriate order.
5
6 DATED: May 2, 2012

GCA LAW PARTNERS LLP

7
8
9

By:

/s/ Susan D. Condon
Susan D. Condon
Valerie M. Wagner
Attorneys for Federal Deposit Insurance
Corporation as Receiver for IndyMac Bank, F.S.B.

10
11
12
13
14 DATED: May 2, 2012

LAW OFFICES OF PETER N. BREWER

15
16
17

By:

/s/ Julia M. Wei
Julia M. Wei
Henry Chuang
Attorneys for Defendant Richard Straub, an
Individual and dba Straub Appraisal

18
19
20
21
22
23

PURSUANT TO STIPULATION, IT IS SO ORDERED.

24
25 DATED: ____________
26

________________________________
Hon. Saundra Brown Armstrong
United States District Court Judge

27
28
10

Protective Order

DERED
SO OR ED
IT IS
DIFI
AS MO

R NIA

UNIT
ED

Ju

H

ER

LI

RT

FO

NO

______________________________
Donna M. Ryu
. Ryu
U.S. ge Donna Judge
Magistrate M
d

A

May 10, 2012
Date: ___________________________

S DISTRICT
TE
C
TA

RT
U
O

IT IS SO ORDERED.

S

Notwithstanding the parties' stipulations, the court orders that
(1) the stipulated protective order does not entitle the parties to file confidential information
under seal;
(2)Civil Local Rule 79-5 and General Order 62 set 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;
(3) The parties must take care to limit the designation of confidential material to specific
material that qualifies under the applicable legal standards. The designating party must
designate for protection only those parts of material, documents, items or oral or written
communications that qualify -- so that other portions for which protection is not warranted are
not swept unjustifiably within the ambit of this order;
(4) mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
to be clearly unjustified or that have been made for an improper purpose expose the Designating
Party to sanctions; and (5) if judicial intervention is required, the parties shall follow Judge Ryu's
procedures for discovery disputes set forth in Docket No. 33.

N

F
D IS T IC T O
R

C

Case4:11-cv-03295-SBA Document31 Filed05/02/12 Page11 of 11

Exhibit A

1

ACKNOWLEDGMENT OF PROTECTIVE ORDER
AND AGREEMENT TO BE BOUND

2
3

I, ____________________________, declare that:

4

My address is _________________________________; my present

5 occupation is ____________________________; and I am currently employed by
6 _________________________________.
7

I have received a copy of the Protective Order in this action, and I have

8 carefully read and understand its provisions. I acknowledge that I am one of the
9 persons contemplated in Paragraph II.B.6 thereof as being able to be given access to
10 Confidential Information.
11

I will comply with all of the provisions of the Protective Order. I will hold in

12 confidence, will not disclose to anyone other than those persons specifically
13 authorized by the Protective Order, and will not copy or use for purposes other than
14 for this lawsuit any Confidential Information that I receive in this action, except to
15 the extent that such Confidential Information is or becomes public domain
16 information or otherwise is not deemed Confidential Information in accordance with
17 the Protective Order.
18

I agree to subject myself personally to the jurisdiction of the United States

19 District Court for the Northern District of California for the purpose of proceedings
20 relating to my performance under, in compliance with, or violation of this Protective
21 Order.
22

I understand that disclosure of Confidential Information in violation of this

23 Protective Order may constitute contempt of court.
24

I declare under penalty of perjury that the foregoing is true and correct.

25
26
27
28

_______________________________________
Signature

Date