Lehman Brothers Holdings Inc. v. Universal American Mortgage Company, LLC

Filing 50

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 7/23/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-CV-00091-REB-KMT
LEHMAN BROTHERS HOLDINGS, INC.
Plaintiff,
v.
UNIVERSAL AMERICAN MORTGAGE COMPANY, LLC
Defendant.
______________________________________________________________________
STIPULATED PROTECTIVE ORDER
______________________________________________________________________
This Cause is before the Court upon the Parties’ Joint Stipulation for a Protective
Order pursuant to FED. R. CIV. P. 26(c).

The Court has reviewed the file and is

otherwise fully advised and finds that there are a potentially significant number of
documents containing nonpublic personal information of borrowers and the confidential
and proprietary information of the parties such that document-by-document review of
discovery materials will be impracticable if the case is to proceed in an orderly, timely,
and efficient manner.

The parties’ interest in protecting the non-public personal

information of borrowers and their confidential and commercially-sensitive information
from unnecessary disclosure outweighs any societal interest in disclosure of such
materials to non-parties. Thus, after due consideration by the Court and for good cause
shown, the Court finds that it is appropriate to expedite the flow of discovery material,
promote resolution of disputes over confidentiality, and facilitate preservation of material
arguably worthy of protection. Accordingly, it is ORDERED and ADJUDGED as follows:

1.

Scope. This Protective Order shall control the disclosure, dissemination,

and use of documents, materials, and information designated as “Confidential” by one
or more of the Parties in the Action. The foregoing includes, but is not limited to: (a)
documents disclosed; (b) answers to interrogatories; (c) responses to requests for
admission; and (d) deposition testimony. The Parties, and all other persons or entities
who agree to be bound by this Protective Order shall collectively be referred to herein
as “Covered Parties.” The testimony, documents, and other confidential information
referred to herein shall collectively constitute “Discovery Materials.”
2.

Designations.

The Parties or any third party may, before production,

designate as “Confidential” any Discovery Materials it believes discloses private or
otherwise confidential information, including but not limited to private financial
information or trade secrets.

Discovery Materials designated as “Confidential” are

referred to herein as “Designated Materials.”
3.

Marking Confidential Information. All Designated Materials shall bear a

legend indicating its status as “CONFIDENTIAL.” All information disclosed or discussed
in a deposition or court proceeding designated as Confidential shall be so designated,
orally on the record whenever possible, at the time the testimony is given or hearing
conducted, or, alternatively in the case of a deposition, no later than 15 days after
receipt of the deposition transcript by the designating party. All portions of transcripts
designated as Confidential shall be treated with the protections set forth herein.
4.

Later Designations of Confidential Information. The disclosure of

Confidential information inadvertently not designated as such shall not constitute
a waiver of the protections afforded such information. Any such information not

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initially designated as Confidential may be so designated at a later time during
the pendency of the Action, in writing by either of the Parties.
5.

Restrictions On Disclosure. Designated Materials (and any notes, work

papers, summaries, or other documents reflecting the same) shall be used by the
receiving party solely in connection with the Action and shall not be disclosed by the
receiving party other than as follows:
A.

To any person or entity who authored or received the Designated

Materials prior to the filing of the Action;
B.

The Court and its personnel, except that Paragraphs 8 and 9

(below) shall govern submissions of Designated Materials to the Court.
C.

The Parties, including their employees, representatives, and

affiliates (provided such disclosure is reasonably necessary to assist the Parties
in the prosecution or defense of the Action); and
D.

Outside consultants and experts (including their staff), retained by

any party to assist in this Action, whether as a testifying expert or non-testifying
consultant (collectively “Experts”) if, prior to disclosing any Designated Material to
such Experts, the Experts execute an agreement in writing stating he/she has
read this Protective Order and agrees to be bound by it. The form of such
agreement is attached hereto as Exhibit A, and incorporated herein by
reference.
E.

Any fact witness, provided that prior to disclosing any Designated

Material such witness executes the form agreement attached hereto as Exhibit
A, and incorporated herein by reference.

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F.

Court reporters, videographers, interpreters, and such other

qualified persons otherwise unconnected to any party but who are involved in
taking testimony, copying documents, and the like, provided that prior to
disclosing any Designated Material such person(s) execute(s) the form
agreement attached hereto as Exhibit A, and incorporated herein by reference
G.

Designated Materials may also be marked “CONFIDENTIAL—

ATTORNEYS EYES ONLY”, in which case such Designated Materials shall have
greater protection and shall only be disclosed to the Parties’ counsel.
6.

Disclosure Agreements. The attorneys of record for the party receiving

the Designated Materials shall retain the original, executed Exhibit A agreements that
have been executed by those to whom disclosure has been made.
7.

Procedure For Challenging Designations. A party may object to any

Designated Material by giving written notice of the disputed designation. The written
notice shall specifically identify (by bates number) the Designated Materials to which the
objection is made. If the parties cannot, in good faith, resolve the objection within 10
business days after the notice is received, it shall be the obligation of the party objecting
to the designation to file a motion requesting the Court determine whether the
designation is appropriate.

The party seeking the confidentiality designation shall,

however, have the burden of proof in justifying the confidentiality designation.
8.

Filings With Court. All Designated Materials filed with the Court that

include or reference a loan borrower’s first name, social security number, date of birth,
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 such redacted Designated

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Materials may be filed with the Court without the necessity of a “Motion to Restrict
Access” under D.C.COLO.LCIVR 7.2. If any papers to be filed with the Court contain
unredacted information and/or documents that have been designated as "Confidential",
then the Parties must comply with D.C.COLO.LCIVR 7.2. In any such "Motion to Restrict
Access", the restriction level of the Confidential information and/or documents shall be a
Level 1 absent good cause shown for a higher level of restriction or upon agreement of
the Parties.
9.

Depositions, Hearings, and Trial. No person may refuse to answer any

question at a deposition, hearing, or trial on the sole ground that the questions require
the person to reveal confidential information. Nothing contained in this Protective Order
shall preclude the use of any Designated Material at a deposition, in a hearing, or at
trial, including any appeal of this action.
10.

Use Of Confidential Information At Trial. Except as otherwise provided

herein, this Protective Order shall not affect the use or admissibility of Designated
Material at trial. Each party shall be responsible for requesting appropriate relief from
the Court regarding trial testimony and exhibits, including but not limited to further
protective orders, trial management provisions, motions in limine and/or objections.
11.

Modification.

Any Covered Person may apply for modification of this

Protective Order or the imposition of additional protections, upon reasonable notice to
the Parties and after the Covered Party seeking modification has contacted counsel for
the Parties to attempt to resolve the issues that are the subject of the requested
modification.

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12.

Conclusion Of Action. Following final disposition of the Action, including

all appeals therefrom, Covered Parties (including Experts) shall destroy all Designated
Materials and certify such destruction, or return to the requesting party all Designated
Materials. Notwithstanding the foregoing, counsel for each Covered Party may retain a
record of the Action, irrespective of whether a Covered Party’s Confidential information
is included in correspondence, pleadings, discovery, notes, research, or other files
maintained by the attorney for purposes of representing his/her client in the Action.
13.

Continuing Jurisdiction.

The Court shall retain jurisdiction over the

Covered Parties for the purpose of ensuring compliance with this Protective Order and
granting such amendments, modifications, and additions to this Protective Order, and
such other and further relief as may be necessary.

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14.

Survival. This Protective Order shall survive the final disposition of the

Action, by judgment, dismissal, settlement, appeal, or otherwise.
SO STIPULATED.
Respectfully submitted, this 22nd day of July 2013.
FOSTER GRAHAM MILSTEIN
& CALISHER, LLP
s/ Christopher P. Carrington
Christopher P. Carrington
360 South Garfield Street, 6th Floor
Denver, Colorado 80209
[e-mail]
Attorneys for Plaintiff

PALUMBO BERGRSTROM LLP
s/Marisa C. Ala
Marisa C. Ala
Palumbo Bergstrom LLP
8375 South Willow Street, Suite 300
Lone Tree, Colorado 80124
[e-mail]
BILZIN SUMBERG BAENA PRICE & AXELROD
LLP
s/Philip R. Stein
Philip R. Stein, Esq.
1450 Brickell Avenue, Suite 2300
Miami, Florida 33131-3456
[e-mail]
Attorneys for Defendant

IT IS SO ORDERED:

Dated: July 23, 2013

BY THE COURT:

Hon. Kathleen M. Tafoya
United States Magistrate Judge

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EXHIBIT A
PERSONAL UNDERTAKING REGARDING PROTECTIVE ORDER

I, ___________________________ declare:

1.

My address is ________________________________________.
present occupation is ________________________________.

My

2.

I have received the Stipulated Protective Order (“Protective Order”) issued
in Lehman Brothers Holdings, Inc. v. Universal American Mortgage Company, LLC,
case #13-CV-00091 (District of Colorado). I have carefully read and understand the
provisions of the Protective Order.

3.
I will comply with all of the provisions of the Protective Order. I will hold in
confidence, will not disclose to anyone other than those persons specifically authorized
by the Protective Order, and will not copy or use except for purposes of this litigation,
any information designated as “CONFIDENTIAL” which I receive in this litigation, except
to the extent such Confidential Information is or becomes public information under the
Protective Order.
4.
I will comply with Paragraph 12 of the Protective Order regarding the
return or destruction of all Confidential Information in my possession following the
conclusion of this litigation.
I declare under penalty of perjury that the foregoing is true and correct and that
this document is executed this ______ day of _____________, ______, at
___________________________.

Signature

Print Name

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