Aurora Bank FSB v. Union Mortgage Group, Inc.
PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 3/1/13. (bnbcd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 12-cv-03140-REB-BNB
AURORA BANK FSB, a Federal Savings Bank
UNION MORTGAGE GROUP, INC., a Virginia
Corporation f/k/a MORTGAGE CAPITAL INVESTORS,
This matter, having come before the Court upon Plaintiff Aurora Banks FSB’s unopposed
motion for entry of protective order, and good cause appearing in support of the entry of a
protective order to protect the discovery and dissemination of confidential or proprietary
information in this case, and pursuant to Fed.R.Civ.P. 26(c), IT IS ORDERED:
This Protective Order shall apply to all documents, materials, and information,
including without limitation, documents produced, answers to interrogatories, responses to
requests for admission, deposition testimony, electronic records, and other information
designated as “CONFIDENTIAL” pursuant to this Protective Order and disclosed pursuant to
the disclosure or discovery duties created by the Federal Rules of Civil Procedure.
Certain information that is currently sought or may be sought through discovery
in this action may constitute confidential or private information of the parties, within the
meaning of Fed. R. Civ. P. 26. Such information includes, but is not limited to, the parties’
banking records, confidential financial records, and the loan records and servicing information
for the subject mortgage loans at issue in the complaint.
This confidential information may be relevant to disputed issues in this case,
including which party is responsible for the losses associated with the loans at issue or may be
reasonably calculated to lead to the discovery of admissible evidence. Additionally, discovery
will be facilitated if the parties are allowed to produce such information under a protective order
pursuant to Fed. R. Civ. P. 26.
Finally, Colorado law provides that banking customers enjoy a general
expectation of privacy in connection with their banking records. Rubenstein v. South Denver
National Bank, 762 P.2d 755, 756-757 (Colo.App. 1988).
Therefore, the Court hereby ORDERS as follows:
This Order shall govern any testimony given at any deposition, pretrial hearing, or
proceeding in this action, as well as all documents or other materials produced, any copies,
abstracts, excerpts, analyses, or summaries that contain, reflect, or disclose information
contained in such testimony or other materials. The testimony, documents, and materials
referred to in this paragraph shall collectively constitute “Discovery Materials.”
Any party to this litigation, or any third party from whom discovery is sought,
shall have the right, before producing or disclosing Discovery Materials, to designate as
“Confidential” any Discovery Materials it produces that are believed in good faith to constitute,
reflect, or disclose financially private information, trade secrets or other confidential information
within the scope of Fed. R. Civ. P. 26. Discovery Materials designated as “Confidential” are
referred to herein as “Designated Materials.” All copies, abstracts, excerpts, analyses, charts or
summaries of the Discovery Materials that contain, reflect, or disclose information designated as
“Confidential” shall be marked with the appropriate “Confidential” designation.
All Designated Materials shall bear a legend on each page stating that the material
is Confidential, except as provided below. All Designated Materials shall be marked before
being sent to any party (hereinafter the “Receiving Party”). Where it is not possible to affix a
legend to particular Designated Materials, the producing party shall take reasonable steps to give
all Receiving Parties notice of its status as Confidential prior to the production of Designated
Deposition testimony may be designated as Confidential at the time the testimony
is elicited or within thirty (30) days after notice by the court reporter of the completion of the
deposition transcript. Portions of testimony so designated shall be appropriately marked as
Confidential by the court reporter on each page as per the directions of the designating party.
Further designations of testimony as Confidential may be made during this period by giving
written notice to all counsel who have appeared in the action. Additionally, if testimony is
designated as Confidential at the time the testimony is elicited, the only persons allowed in the
room or to hear the testimony are those who, under this Protective Order, may have Confidential
materials revealed to them under the terms of this Protective Order.
Nothing contained in this Protective Order shall preclude the use of Confidential
Information or provide an independent basis for refusal to answer any question at a deposition, in
a hearing, or at trial, including any appeal in this action.
Any party to whom Designated Materials are produced, including attorneys
representing the party, may only make such use of Designated Materials as: (1) the prosecution
or defense of this case may require; (2) for the defendant’s evaluation of plaintiff’s demand for
repurchase or indemnification of any loans at issue; (3) for use in settlement discussions; and (4)
not for any other purpose.
Discovery Materials designated Confidential and information therefrom shall not
be given, shown, disclosed, discussed, or made available in any manner to any person other than:
(a) any employee of a party to whom it is reasonably deemed necessary by counsel that these
documents be shown for purposes of this litigation; (b) outside counsel for the respective parties,
and employees and independent contractors engaged in clerical work for such counsel as
necessary to assist in this action; (c) experts or consultants retained for purposes of this action,
and only to the extent necessary for the expert to (1) prepare a written opinion, (2) prepare for
trial or other proceeding in this case, or (3) assist outside counsel in this action, but only if such
expert or consultant agrees to only use any Designated Materials solely for the preparation of
this case and not for any other purpose; (d) witnesses in the course of deposition, hearing, or trial
testimony where counsel has a reasonable and good faith belief that examination with respect to
the document is necessary for legitimate discovery, hearing, or trial purposes; (e) the author of
the document and anyone demonstrated by testimony or sworn affidavit to have received it in the
ordinary course of business; (f) court reporters; (g) the Court and Court staff or personnel if the
Confidential material is filed in the manner required by this Protective Order; and (h) a mediator
Except for the Court and any named party’s employee reviewing Designated
Materials in his or her regular course of business, all persons to whom Designated Materials are
disclosed or are used, including parties, non-parties, and their representatives, shall be informed
of and agree to be bound by the terms of this Protective Order and shall take all necessary
precautions to prevent any disclosure or use of Designated Materials other than as authorized by
this Protective Order.
Prior to disclosing any Designated Materials to any person, other than the Court;
court personnel; court reporters; any employee of a party to whom it is reasonably deemed
necessary by counsel that these documents be shown for purposes of this litigation, evaluation,
or settlement; counsel for the respective parties, and employees and independent contractors
engaged in clerical work for such counsel as necessary to assist in this action, counsel shall have
the obligation to obtain a written acknowledgment, in the form of Exhibit 1 attached hereto, that
such person has received and reviewed a copy of this Protective Order, will comply with its
terms in all respects, and will submit to the jurisdiction of this Court for adjudication of any
dispute regarding whether the person has complied with the terms of this Protective Order.
Additionally, any counsel disclosing Designated Materials shall keep a record of the name,
address and telephone number of each person who is to receive such information and shall retain
the person’s written acknowledgment, discussed above, until termination of this action as
defined in paragraph 23 of this Protective Order.
Persons who are authorized to review Designated Materials pursuant to this
Protective Order shall hold the Designated Materials and all information contained therein or
derived from in confidence and may not divulge in any manner the Designated Materials, their
contents, nature, or importance, either verbally or in writing, to any person not authorized to
receive such information pursuant to the terms of this Protective Order unless required to do so
by the order of the Court.
In the event that a party deems it necessary to disclose any Designated Materials
to any person not authorized under the terms of this Protective Order, the party shall notify
counsel for the producing person in writing of (1) the Designated Materials that are to be
disclosed, and (2) the persons to whom such disclosure is to be made. The proposed disclosure
cannot be made absent written permission of the producing person unless an order from the
Court is obtained. All terms of this Protective Order governing the production of Confidential
information shall apply to every such disclosure.
Nothing contained in this Protective Order shall prevent any party from disclosing
its own Designated Materials as it deems appropriate. Additionally, nothing in this Protective
Order shall prevent any party from using as it deems appropriate materials that are the same as
Designated Materials when such materials are obtained from a public source or from a source
other than the producing party under circumstances that in no way restrict the use of such
If Designated Materials are disclosed to any person other than in the manners
authorized by this Protective Order, the party responsible for the disclosure shall immediately
upon learning of such disclosure inform the designating party or person of all pertinent facts
relating to the disclosure, and make every effort to retrieve the Designated Material and to
prevent any disclosure by any unauthorized person.
All documents and materials filed with the Court that include or reference a loan
borrower’s first name, social security number, address, or loan number—with the exception of
the last 4 identifying digits—will be redacted prior to attaching the same to the specific motion
or filing. Any request to restrict access must comply with the requirements of
D.C.COLO.LCivR 7.2. Any additional Designated Materials which do not include or
reference a loan borrower’s first name, social security number, address, or loan number, but
which are still designated as Confidential and are not readily capable of redaction shall be filed
in sealed envelopes or other appropriately sealed containers, which shall bear the title of this
action, an indication of the nature of the contents, the identity of the party filing the materials,
and the words “Confidential” and a statement stating the following: “This envelope contains
materials subject to a protective order entered in this action. It shall not be opened and its
contents shall not be displayed, revealed, or made public, except pursuant to order of this Court.”
If Confidential materials are to be offered into evidence at any trial or hearing in
this case, the parties shall notify the Court of the Confidential nature of such materials at the time
of the hearing and take any appropriate steps as ordered by the Court to keep such materials
Confidential after the hearing or trial.
A party may object to the designation of particular Confidential information
by giving written notice to the party designating the disputed information. The written
notice shall identify the information to which the objection is made. If the parties cannot
resolve the objection within ten (10) business days after the time the notice is received, it
shall be the obligation of the party designating the information as Confidential to file an
appropriate motion requesting that the court determine whether the disputed information
should be subject to the terms of this Protective Order. If such a motion is timely filed, the
disputed information shall be treated as Confidential under the terms of this Protective
Order until the Court rules on the motion. If the designating party fails to file such a
motion within the prescribed time, the disputed information shall lose its designation as
Confidential and shall not thereafter be treated as Confidential in accordance with this
Protective Order. In connection with a motion filed under this provision, the party
designating the information as Confidential shall bear the burden of establishing that good
cause exists for the disputed information to be treated as Confidential. A party may at any
time notify the designating party in writing that it objects to the designation of any Discovery
Material as Confidential. The written notice shall identify the information to which the objection
is made. In order to designate Discovery Material as Confidential, “a party must make some
threshold showing of good cause to believe that discovery will involve confidential or protected
information. This may be done on a generalized as opposed to a document-by-document basis.
Moreover, even though a blanket protective order permits all documents to be designated as
confidential, a party must agree to only invoke the designation in good faith.” Gillard v. Boulder
Valley Sch. Dist. Re.-2, 196 F.R.D. 382, 386 (D. Colo. 2000). Moreover, “[t]he opposing party
has the right to contest those documents which it believes not to be confidential. At this stage,
the party seeking the protection shoulders the burden of proof in justifying retaining the
confidentiality designation. Thus, the burden of proving confidentiality never shifts from the
party asserting that claim-only the burden of raising that issue.” Gillard, 196 F.R.D. at 386.
a) In the event that there is a disagreement whether material has been properly
designated as “Confidential” there shall first be an attempt in good faith to
resolve such a dispute.
b) If such a negotiation fails, the party challenging the designation may move the
Court for an order terminating or modifying the Confidential designation.
c) Information designated as Confidential shall maintain its status until such time
as either (1) the parties expressly agree otherwise in writing; or (2) this Court
orders otherwise, unless the order is under appellate review.
Production of any document or materials without a designation of Confidential
will not be deemed a waiver of a later claim as to its proper designation or prevent the producing
party from later designating the material as Confidential.
This Protective Order shall survive the termination of this litigation but shall not
impact or affect the parties’ regular course of business with respect to servicing any loan in this
All Designated Materials subject to this Protective Order shall be returned to the
producing party upon termination of this action, or, upon written permission by the producing
party, destroyed. The term “termination of this action” shall mean 45 days following: (a) the
entry of an order of dismissal or other final non-appealable order fully disposing of the case; or
(b) the expiration of any time for appeal. Furthermore, counsel for the receiving party shall
make reasonable efforts to retrieve any documents or information subject to this Protective Order
from any person to whom such information has been provided. If counsel for the receiving party
fails to retrieve any documents or information subject to this Protective Order, counsel is
required to notify the other party in writing of such failure including the name, address, and
telephone number of the person in possession of documents or information subject to this
Protective Order and the efforts made by counsel to retrieve the documents or information.
Nothing in the terms of this Protective Order shall: (1) operate as an admission
by any party that Designated Material reflect trade secrets or any other type of private or
confidential information; (2) reduce in any way the rights of the parties or other persons from
whom discovery is sought to object to discovery; (3) prejudice the rights of any party to object to
the authenticity or admissibility into evidence of any document, testimony, or other evidence that
is subject to this Protective Order; (4) except as expressly provided, relieve any party of its
obligation to produce information and documents in the course of discovery; or (5) prejudice the
rights of any party or producing person to petition the Court to amend this Protective Order.
25. References to persons in this Protective Order are deemed to include natural persons,
corporations, and other entities.
Dated March 1, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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