Golden v. BofI Holding, Inc. et al

Filing 280

Amended Stipulated Protective Order 278 . Signed by Magistrate Judge Karen S. Crawford on 11/12/21. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:15-cv-02324-GPC-KSC

IN RE BofI HOLDING, INC.
SECURITIES LITIGATION

AMENDED STIPULATED
PROTECTIVE ORDER

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The Court recognizes that at least some of the documents and information

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(“materials”) being sought through discovery in the above-captioned action are, for

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competitive, legal, regulatory and other reasons, normally kept confidential by the

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parties. The parties have agreed to be bound by the terms of this Protective Order

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(“Order”) in this action.

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The materials to be exchanged throughout the course of the litigation

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between the parties may contain protected consumer banking information,

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communications between BofI and regulators, internal audit communications and

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findings, and non-public personal information of BofI employees and customers,

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which are protected from disclosure by, among other things, the Gramm-Leach-

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Bliley Act and the rules and regulations of the Office of the Comptroller of the

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Currency (“OCC”) and the Securities & Exchange Commission (among others).

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Additionally, the parties may exchange confidential financial, trade secret or other

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confidential research, technical, cost, price, marketing or other commercial
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AM. STIPULATED PROTECTIVE ORDER
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information, as is contemplated by Federal Rule of Civil Procedure 26(c)(7). To

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preserve the confidential nature of this information, this Order establishes a

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procedure for disclosing confidential information to the parties in this litigation,

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imposes obligations on persons receiving confidential information to protect it from

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unauthorized use or disclosure, and establishes a procedure for challenging

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confidentiality designations. The purpose of this Order is to protect the

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confidentiality of such materials as much as practical during the litigation.

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THEREFORE:

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DEFINITIONS
1.

The term “Confidential Information” will mean and include

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information contained or disclosed in any materials, including documents, portions

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of documents, answers to interrogatories, responses to requests for admissions, trial

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testimony, deposition testimony, and transcripts of trial testimony and depositions,

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including data, summaries, and compilations derived therefrom that is deemed to be

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Confidential Information by the providing party or any person or party to which it

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belongs.

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2.

The term “materials” will include, but is not be limited to: documents;

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correspondence; memoranda; bulletins; blueprints; specifications; customer lists or

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other material that identify customers or potential customers; price lists or

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schedules or other matter identifying pricing; minutes; telegrams; letters;

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statements; cancelled checks; contracts; invoices; drafts; books of account;

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worksheets; notes of conversations; desk diaries; appointment books; expense

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accounts; recordings; photographs; motion pictures; compilations from which

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information can be obtained and translated into reasonably usable form through

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detection devices; sketches; drawings; notes (including laboratory notebooks and

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records); reports; instructions; disclosures; other writings; models and prototypes

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and other physical objects; regulatory communications that have not been publicly

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filed, including, without limitation, attachments to public filings; other materials
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that identify non-public personal information about BofI’s employees, customers,

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clients and business counterparties; internal audit communications and findings;

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and all other things produced, given, received or filed in connection with the

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prosecution or defense of this action.

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3.

The term “counsel” will mean outside counsel of record, and other

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attorneys, paralegals, secretaries, and other support staff employed in the law firms

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identified below: Lieff Cabraser Heimann & Bernstein, LLP (Counsel for Plaintiff

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HMEPS and Lead Counsel for the proposed Class) and Sheppard, Mullin, Richter

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& Hampton LLP (Counsel for Defendants).

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GENERAL RULES

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4.

All materials produced, given and/or received by the parties to this

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action shall be used solely in connection with the prosecution or defense of this

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action, and shall not be used for any other purpose or in connection with any other

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action.

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5.

Each party to this litigation that produces or discloses any materials,

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answers to interrogatories, responses to requests for admission, trial testimony,

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deposition testimony, and transcripts of trial testimony and depositions, or

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information that the producing party believes contains Confidential Information

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subject to this Protective Order may designate the same as “CONFIDENTIAL” or

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“CONFIDENTIAL - FOR COUNSEL ONLY.”

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a.

Designation as “CONFIDENTIAL”: Any party may designate

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information as “CONFIDENTIAL” only if, in the good faith belief of such party

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and its counsel, the unrestricted disclosure of such information could be potentially

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prejudicial to the business, operations or legitimate privacy interests of such party

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or its employees, customers, clients or business counterparties of such party, or

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reveal confidential information concerning nonpublic communications to or

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investigations by governmental agencies.

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AM. STIPULATED PROTECTIVE ORDER
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b.

Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”:

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Any party may designate information as “CONFIDENTIAL - FOR COUNSEL

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ONLY” only if, in the good faith belief of such party and its counsel, the

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information is among that considered to be most sensitive by the party, including

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but not limited to trade secret or other confidential research, development, financial

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or other commercial information.

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6.

In the event the producing party elects to produce materials for

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inspection, no marking need be made by the producing party in advance of the

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initial inspection. For purposes of the initial inspection, all materials produced will

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be considered as “CONFIDENTIAL - FOR COUNSEL ONLY,” and must be

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treated as such pursuant to the terms of this Order. Thereafter, upon selection of

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specified materials for copying by the inspecting party, the producing party must,

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within a reasonable time prior to producing those materials to the inspecting party,

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mark the copies of those materials that contain Confidential Information with the

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appropriate confidentiality marking.

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7.

Plaintiff applied to the Office of the Comptroller of the Currency

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(“Comptroller”) pursuant to 12 CFR part 4, Subpart C, for permission to have made

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available, in connection with this litigation, certain records. Such records are

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deemed by the Comptroller to contain non-public OCC information that is

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confidential and privileged, pursuant to 12 U.S.C. 481, 1463(a)(1), 1464(a)(1) and

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1464(d)(1)(B)(i); 5 U.S.C. 552(b)(8); 18 U.S.C. 641, 1906; and 12 CFR 4.12, and

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part 4, Subpart C. Following consideration of Plaintiff’s application, the

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Comptroller has determined that the particular circumstances of the above-

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captioned action warrant making certain records available to the parties in this

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action, provided that the protection of their confidentiality can be secured by the

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following procedures.

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AM. STIPULATED PROTECTIVE ORDER
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a.

Any party or other person who wishes to use the information or

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records or their contents in any other action shall make a separate application to the

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Comptroller of the Currency pursuant to 12 CFR part 4, Subpart C.

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b.

At the conclusion of this action, all parties shall certify to the

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Comptroller that the records covered by this Paragraph have been destroyed.

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Furthermore, counsel for BofI, pursuant to 12 CFR 4.39(c), shall retrieve any

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records covered by this Paragraph that may have been filed with the Court.

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8.

Whenever a deposition taken on behalf of any party involves a

disclosure of Confidential Information of any party:
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the deposition or portions of the deposition must be designated

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as containing Confidential Information subject to the provisions of this Order; such

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designation must be made on the record whenever possible, but a party may

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designate portions of depositions as containing Confidential Information after

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transcription of the proceedings; a party will have until fourteen (14) days after

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receipt of the deposition transcript to inform the other party or parties to the action

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of the portions of the transcript to be designated “CONFIDENTIAL” or

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“CONFIDENTIAL - FOR COUNSEL ONLY.”

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b.

the disclosing party will have the right to exclude from

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attendance at the deposition, during such time as the Confidential Information is to

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be disclosed, any person other than the deponent, counsel (including their staff and

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associates), the court reporter and the person(s) agreed upon pursuant to paragraph

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9 below, except that the person(s) agreed upon pursuant to paragraph 9 below may

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be excluded during such time as information designated “CONFIDENTIAL – FOR

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COUNSEL ONLY” is to be disclosed to the extent that such person(s) is/are not

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authorized to receive such information under this Order; and

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c.

the originals of the deposition transcripts and all copies of the

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deposition must bear the legend “CONFIDENTIAL” or “CONFIDENTIAL - FOR

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COUNSEL ONLY,” as appropriate, and the original or any copy ultimately
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AM. STIPULATED PROTECTIVE ORDER
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presented to a court for filing must not be filed unless it can be accomplished under

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seal, identified as being subject to this Order, and protected from being opened

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except by order of this Court.

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All Confidential Information designated as “CONFIDENTIAL” or

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“CONFIDENTIAL - FOR COUNSEL ONLY” must not be disclosed by the

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receiving party to anyone other than those persons designated within this Order and

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must be handled in the manner set forth below, unless and until such designation is

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removed either by agreement of the parties, or by order of the Court.

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10.

Information designated “CONFIDENTIAL - FOR COUNSEL ONLY”

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must be viewed only by counsel (as defined in paragraph 3) of the receiving party,

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and by independent experts under the conditions set forth in this Paragraph. The

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right of any independent expert to receive any Confidential Information will be

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subject to the advance approval of such expert by the producing party or by

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permission of the Court. The party seeking approval of an independent expert must

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provide the producing party with the name and curriculum vitae of the proposed

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independent expert, and an executed copy of the form attached hereto as Exhibit A,

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in advance of providing any Confidential Information of the producing party to the

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expert. Any objection by the producing party to an independent expert receiving

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Confidential Information must be made in writing within seven (7) days following

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receipt of the identification of the proposed expert. Confidential Information may

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be disclosed to an independent expert if the seven (7) day period has passed and no

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objection has been made. The approval of independent experts must not be

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unreasonably withheld.

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Information designated “CONFIDENTIAL” must be viewed only by

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counsel (as defined in paragraph 3) of the receiving party, by independent experts

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(pursuant to the terms of paragraph 9), and by the additional individuals listed

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below, provided each such individual has read this Order in advance of disclosure

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and has agreed in writing to be bound by its terms:
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AM. STIPULATED PROTECTIVE ORDER
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a.

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with reference to this action;

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b.

Executives who are required to participate in policy decisions
Technical personnel of the parties with whom counsel for the

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parties find it necessary to consult, in the discretion of such counsel, in preparation

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for trial of this action; and

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c.

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individuals identified above.

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12.

Stenographic and clerical employees associated with the

With respect to material designated “CONFIDENTIAL” or

“CONFIDENTIAL - FOR COUNSEL ONLY,” any person indicated on the face of

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the document to be its originator, author or a recipient of a copy of the document,

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may be shown the same.

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All information which has been designated as “CONFIDENTIAL” or

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“CONFIDENTIAL -FOR COUNSEL ONLY” by the producing or disclosing party,

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and any and all reproductions of that information, must be retained in the custody of

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the counsel for the receiving party identified in paragraph 3, except that

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independent experts authorized to view such information under the terms of this

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Order may retain custody of copies such as are necessary for their participation in

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this litigation.

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14.

Before any materials produced in discovery, answers to

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interrogatories, responses to requests for admissions, deposition transcripts, or other

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documents which are designated as Confidential Information are filed with the

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Court for any purpose, the party seeking to file such material must seek permission

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of the Court to file the material under seal. Nothing shall be filed under seal, and

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the Court shall not be required to take any action, without separate prior order by

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the Judge before whom the hearing or proceeding will take place, after application

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by the affected party with appropriate notice to opposing counsel. The parties shall

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follow and abide by applicable law, including Civ. L.R. 79.2, ECF Administrative

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AM. STIPULATED PROTECTIVE ORDER
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Policies and Procedures, Section II.j, and the chambers’ rules, with respect to filing

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documents under seal.

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At any stage of these proceedings, any party may object to a

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designation of the materials as Confidential Information. The party objecting to

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confidentiality must notify, in writing, counsel for the designating party of the

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objected-to materials and the grounds for the objection. If the dispute is not

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resolved consensually between the parties within seven (7) days of receipt of such a

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notice of objections, the objecting party may move the Court for a ruling on the

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objection. The materials at issue must be treated as Confidential Information, as

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designated by the designating party, until the Court has ruled on the objection or the

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matter has been otherwise resolved. Similarly, if a party receives (or has received)

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from some other source materials that it and its counsel reasonably believe could

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include Confidential Information of the other party, the receiving party shall treat

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the materials at issue as Confidential Information and promptly notify, in writing,

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counsel for the other party of its receipt of such materials and provide a copy of

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such materials to the other party. The other party shall, within seven (7) days of

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receipt of the materials, designate appropriate portions of such materials as

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Confidential Information.

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All Confidential Information must be held in confidence by those

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inspecting or receiving it, and must be used only for purposes of this action.

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Counsel for each party, and each person receiving Confidential Information, must

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take reasonable precautions to prevent the unauthorized or inadvertent disclosure of

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such information. If Confidential Information is disclosed to any person other than

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a person authorized by this Order, the party responsible for the unauthorized

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disclosure must immediately bring all pertinent facts relating to the unauthorized

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disclosure to the attention of the other parties and, without prejudice to any rights

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and remedies of the other parties, make every effort to prevent further disclosure by

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the party and by the person(s) receiving the unauthorized disclosure.
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17.

No party will be responsible to another party for disclosure of

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Confidential Information under this Order if the information in question is not

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labeled or otherwise identified as such in accordance with this Order.

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Accidental disclosure of Confidential Information does not waive the

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confidence otherwise attaching to the Confidential Information. If a party, through

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inadvertence, produces any Confidential Information without labeling or marking

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or otherwise designating it as such in accordance with this Order, the designating

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party may give written notice to the receiving party that the document or thing

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produced is deemed Confidential Information, and that the document or thing

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produced should be treated as such in accordance with that designation under this

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Order. The receiving party must treat the materials as confidential, once the

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designating party so notifies the receiving party. If the receiving party has

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disclosed the materials before receiving the designation, the receiving party must

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notify the designating party in writing of each such disclosure. Counsel for the

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parties will agree on a mutually acceptable manner of labeling or marking the

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inadvertently produced materials as “CONFIDENTIAL” or “CONFIDENTIAL -

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FOR COUNSEL ONLY” - SUBJECT TO PROTECTIVE ORDER.

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Nothing within this Order will prejudice the right of any party to

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object to the production of any discovery material on the grounds that the material

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is protected as privileged, confidential and protected as a matter of law or

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regulation, or as attorney work product. Disclosure (including production) of

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information that a party or non-party later claims should not have been disclosed

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because of a privilege, including (without limitation) the attorney-client privilege or

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attorney work product doctrine (collectively, “Privileged Information”), shall not

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constitute a waiver of, or estoppel as to, any claim of privilege as to which the

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producing party would be entitled in the action. The receiving party agrees to

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return, sequester or destroy any Privileged Information disclosed or produced by

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the producing party upon request. If the receiving party wishes to challenge the
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privileged nature of the purportedly Privileged Information, the receiving party

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must make its application to the Court pursuant to Section 14 above within ten (10)

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business days of the request by the producing party to return, sequester or destroy

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the purportedly Privileged Information. If the receiving party reasonably believes

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that Privileged Information has been inadvertently disclosed or produced, it shall

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notify the producing party and sequester such information until instructions as to

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the disposition of such information are received. The failure of any party or non-

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party to provide notice or instructions under this Section shall not constitute a

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waiver or estoppel as to any claim of privilege as to which the producing party

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would be entitled in this action.

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20.

Nothing in this Order will bar counsel from rendering advice to their

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clients with respect to this litigation and, in the course thereof, relying upon any

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information designated as Confidential Information, provided that the contents of

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the information must not be disclosed or used for any purpose other than the

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prosecution or defense of this litigation in violation of this Order.

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This Order will be without prejudice to the right of any party to oppose

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production of any information for lack of relevance or any other ground other than

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the mere presence of Confidential Information. The existence of this Order must

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not be used by either party as a basis for discovery that is otherwise improper under

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the Federal Rules of Civil Procedure.

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Nothing within this Order will be construed to prevent disclosure of

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Confidential Information if such disclosure is required by law or by order of the

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Court.

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Upon final termination of this action, including any and all appeals,

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counsel for each party must, upon request of the producing party, return all

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Confidential Information to the party that produced the information, including any

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copies, excerpts and summaries of that information, or must destroy same at the

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option of the receiving party, and must purge all such information from all
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machine-readable media on which it resides. Notwithstanding the foregoing,

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counsel for each party may retain all pleadings, briefs, memoranda, motions and

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other documents filed with the Court that refer to or incorporate Confidential

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Information, and will continue to be bound by this Order with respect to all such

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retained information. Further, attorney work product materials that contain

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Confidential Information need not be destroyed, but, if they are not destroyed, the

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person in possession of the attorney work product will continue to be bound by this

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Order with respect to all such retained information.

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24.

The restrictions and obligations set forth within this Order will not

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apply to any information that: (a) the parties agree should not be designated

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Confidential Information; (b) the parties agree, or the Court rules, is already public

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knowledge; (c) the parties agree, or the Court rules, has become public knowledge

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other than as a result of disclosure by the receiving party, its employees, or its

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agents in violation of this Order; or (d) has come or will come into the receiving

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party’s legitimate knowledge independently of the production by the designating

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party. Prior knowledge must be established by pre-production documentation.

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25.

The restrictions and obligations within this Order will not be deemed

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to prohibit discussions of any Confidential Information with anyone if that person

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already has or obtains legitimate possession of that Confidential Information.

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26.

Transmission by facsimile is acceptable for all notification purposes

within this Order.

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27.

This Order may be modified by agreement of the parties, subject to

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approval by the Court.

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28.

The Court may modify this Order in the interests of justice or for

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public policy reasons. The parties prefer that the Court provide them with notice of

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the Court’s intent to modify the Order and the content of those modifications, prior

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to entry of such an order.

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ORDER

Pursuant to stipulation, IT IS SO ORDERED.
Dated: November 12, 2021

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AM. STIPULATED PROTECTIVE ORDER
CASE NO. 3:15-cv-02324-GPC-KSC

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE: BofI HOLDING, INC.
SECURITIES LITIGATION,

Case No.: 3:15-cv-02324-GPC-KSC
EXHIBIT A: AGREEMENT TO
BE BOUND BY PROTECTIVE
ORDER

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I, ______________________________, declare and say that:

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1.

_______________________________________________________________.

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I am employed as ______________________________________ by

2.

I have read and received a copy of the Protective Order entered in In re

BofI Securities Litigation, Case No. 3:15-cv-02324-GPC-KSC.

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3.

I promise that I will use any and all “Confidential” or “Confidential -

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For Counsel Only” information, as defined in the Protective Order, given to me

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only in a manner authorized by the Protective Order, and only to assist counsel in

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the litigation of this matter.

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4.

I promise that I will not disclose or discuss such “Confidential” or

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“Confidential - For Counsel Only” information with anyone other than the persons

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described in paragraphs 3, 9 and 10 of the Protective Order.

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5.

I acknowledge that, by signing this agreement, I am subjecting myself

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to the jurisdiction of the United States District Court for the Southern District of

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California with respect to enforcement of the Protective Order.

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6.

I understand that any disclosure or use of “Confidential” or

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“Confidential - For Counsel Only” information in any manner contrary to the

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provisions of the Protective Order may subject me to sanctions for contempt of court.

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

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Date:
SMRH:4881-6443-4435.1

Signature:
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