Aurora Bank, FSB v. Mortgage Master, Inc.
Filing
26
STIPULATED PROTECTIVE ORDER by Magistrate Judge Craig B. Shaffer on 5/10/13. (cbssec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00474-CMA-CBS
AURORA BANK, FSB, a federal savings
bank,
Plaintiff,
v.
MORTGAGE MASTER, INC., a
Massachusetts corporation,
Defendant.
STIPULATED PROTECTIVE ORDER
Plaintiff Aurora Bank, FSB (“Plaintiff”) and defendant Mortgage Master, Inc.
(“Defendant”) (collectively, the “Parties”), through their respective undersigned counsel,
hereby jointly submit for this Court’s approval, the following [Proposed] Stipulated
Protective Order, as follows:
I. Introduction.
Plaintiff and Defendant recognize that during the discovery phase of the abovecaptioned action (the “Civil Action”), Plaintiff and Defendant, and each of them, may be
required to disclose private, confidential, and privileged information. To ensure that
private, confidential, and privileged information and documents that may be disclosed
during the course of discovery not be disseminated outside this litigation, Plaintiff and
Defendant request the Court enter the instant Protective Order to protect from further
dissemination and/or public disclosure the following categories of information:
1) sensitive and private personal financial information concerning the borrowers of the
loans; and 2) confidential, proprietary information of Plaintiff, Defendant and/or their
respective related companies.
II. Stipulated Protective Order.
Based upon the foregoing, the Parties, by and through their attorneys of record,
hereby agree and stipulate as follows:
1.
The provisions of this Protective Order shall control the disclosure,
dissemination, and use of “Confidential Information” (defined below) during the litigation
of the Civil Action by the Parties, as well as all such other persons or entities who agree
to be bound by the provisions of this Protective Order.
The Parties and all other
persons or entities who agree to be bound by the provisions of this Protective Order
shall hereinafter be referred to as “Covered Parties.”
2.
Scope.
This Protective Order shall apply to all documents, materials
and/or information, including without limitation, documents produced, answers to
interrogatories, responses to requests for admission, and deposition testimony, which
shall be known as the “Confidential Information.”
“Confidential Information” shall
include, but not be limited to, any information, documents, or other data, whether
tangible or in electronic and/or digital form, that is produced to or exchanged between
the Parties, and which has been designated as “Confidential Information,” pursuant to
this Protective Order. The parties represent and warrant that they will exercise caution
and objective good faith in selecting documents to be marked as “Confidential
Information,” and that they will not designate information which is not actually
confidential, already in the public domain, a matter of public record or similarly
accessible materials.
3.
Designations. The parties understand and agree that designated
“Confidential Information” implicated in this case, includes, without limitation,
documents, materials and/or information that may contain or refer to any one or all of
the following:
A.
information and/or documents that is/are required to be kept
confidential due to preexisting obligations, including contractual obligations; or
B.
any of the Parties’ sensitive business or technical information,
trade secrets, confidential research, development, business plans, new business
development, proprietary information, competitor market analysis, internal
financial accounting information, or other technical, policy, or commercial
information, and that, if disclosed to a business competitor, would provide a
significant advantage to the party’s competitors; or
C.
the personal identifying information (i.e., social security numbers,
dates of birth, etc.) and personal financial information of specific borrowers that is
or may be subject to additional nondisclosure protections under applicable
provisions of federal, state, and/or common law.
4.
Marking Confidential Information. All Confidential Information shall be
designated as such by affixing a stamp or label (electronic or otherwise) indicating its
status as “CONFIDENTIAL.” In the event that documents are produced electronically,
they can be designated either by imprinting the appropriate notice or by any Party
producing a log indicating what information, data or documents are to be treated with
the appropriate designation. All information conveyed or discussed in testimony at a
deposition or a court proceeding for which Confidential Information status is claimed
shall be so designated, orally on the record whenever possible, at the time the
testimony is given or hearing is conducted or, in the case of a deposition, no later than
fifteen (15) days after receipt of the deposition transcript by the designating party or
entity. All portions of deposition testimony or hearing transcripts in which Confidential
Information is used or discussed and that is designated with a Confidential Information
status shall be treated with the protections afforded such information, as set forth
herein.
5.
Later Designations of Confidential Information. The disclosure,
exchange, or production of Confidential Information that inadvertently was not
designated as such shall not constitute a waiver of the protections afforded such
document or information. Any information or documents not initially designated with the
Confidential Information status may be so designated at a later time, in writing to the
Parties.
6.
Restrictions
on
Disclosure
of
Confidential
Information.
All
Confidential Information, and any notes, work papers, summaries, or other documents
prepared from such Confidential Information, shall be used by the receiving party solely
in connection with the Civil Action and shall not be disclosed by the receiving party other
than as follows:
A.
To any person or entity who authored, received, or is mentioned in the
Confidential Information;
B.
The Court and its employees (“Court Personnel”); except that Paragraph 9
hereof shall govern all submissions of Confidential Information to the Court.
C.
Trial Counsel for the Parties, including necessary secretarial, clerical and
paralegal personnel assisting with the litigation of this action;
D.
The Parties and any designated representative for the parties provided that:
i.
such disclosure is necessary to assist in the prosecution or defense
of the litigation of this action ; and
ii.
E.
prior to disclosing any such Confidential Information to any such
employee of the Parties or any affiliated entity of any Party, that
person or entity execute an agreement in writing stating that he/she
has read this Protective Order and agrees to be bound by its
provisions. An acceptable form of such agreement is attached
hereto as Exhibit A, and incorporated herein by reference.
Outside consultants and experts, and their staff, retained by any Party for the
purpose of assisting in the preparation of the litigation of this action, whether
as a testifying expert or a non-testifying consultant (collectively “Experts”) if,
prior to disclosing any Confidential Information to any such Expert, that Expert
executes an agreement in writing stating that he/she has read this Protective
Order and agrees to be bound by its provisions. An acceptable form of such
agreement is attached hereto as Exhibit A, and incorporated herein by
reference.
F.
Any fact witness or deponent, provided that prior to disclosing any such
Confidential Information they execute an agreement in writing stating that
he/she has read this Protective Order and agrees to be bound by its provision.
An acceptable form of such agreement is attached hereto as Exhibit A, and
incorporated herein by reference. Nevertheless, any fact witness or deponent
who is not a party or representative of a party, and who fails or refuses to sign
Exhibit A shall be furnished a copy of this Protective Order before being
examined about, or asked to produce, potentially confidential documents.
Under such circumstances, failure or refusal to sign Exhibit A shall not
impede or delay the inquiry of said witness or deponent.
G.
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.
H.
If another Court, administrative agency or regulatory body subpoenas or
orders production of stamped confidential documents that a party has obtained
under the terms of this Order, such party shall promptly notify the party or
other person who designated document as confidential of the pendency of
such subpoena or order. Nevertheless, the party receiving the subpoena or
order shall not be required to seek a delay or file a motion to quash such
subpoena or order, but may comply after making notification to the other party
or person.
7.
Disclosure Agreements. The attorneys of record for the party receiving
the Confidential Information shall retain the original, executed Exhibit A agreements
that have been executed by those to whom disclosure has been made.
8.
Procedure for Challenging Designations.
A party may object to the
designation 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, in good faith, resolve the objection within ten business days after the
time the notice is received, it shall be the obligation of the party designating the
information to file an appropriate motion requesting that the Court determine whether
the disputed information should be subject to the terms of this Protective Order.
9.
Filings with Court.
Whenever Confidential Information is used in,
included with, or the contents thereof are in any way disclosed in any pleading, motion,
deposition, transcript or other filing with the Court (“Pleadings”), such Pleading shall be
filed and kept under seal by the Clerk of this Court in accordance with any local rules
governing same.
10.
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. Subject to the Federal Rules of Evidence,
nothing contained in this Protective Order shall preclude the use of Confidential
Information at a deposition, in a hearing, or at trial, including any appeal of this action.
Nothing contained in this Protective Order and no action taken pursuant shall prejudice
the right of any party to contest the alleged relevancy, admissibility or discovery of the
confidential documents and information sought.
11.
Use of Confidential Information At Trial. Except as otherwise provided
above, this Protective Order shall not affect or govern the use or admissibility of
Confidential Information at trial. Each party hereto 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 order provisions, motions in limine
and/or objections.
12.
Modification.
Any Covered Person may apply for modification of this
Protective Order, including relief from the terms of this Protective Order, modification of
its terms, or the imposition of additional protections, upon reasonable notice to the
Parties and after the Covered Party who seeks modification shall have contacted
counsel for the Parties to attempt to resolve the issues that are the subject of the
modification.
13.
Conclusion of the Civil Action. Upon the request of a Covered Party
following the final disposition of the Civil Action, including all appeals therefrom, or the
final disposition of this action against any one or more of the Parties, the remaining
Covered Parties, including their Experts, shall destroy all Confidential Information, and
certify to the requesting Covered Party such destruction, or return to the requesting
Covered Party all Confidential Information. Notwithstanding the foregoing, counsel for
each Covered Party may retain a record of the Civil Action, irrespective of whether a
Covered Party’s Confidential Information is included in the correspondence, pleadings,
discovery, notes, research, or other files maintained by the attorney for purposes of
representing his/her client in the litigation of this action.
14.
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.
15.
Survival. This Protective Order shall survive the final disposition of this
action, by judgment, dismissal, settlement, appeal, or otherwise.
SO STIPULATED.
Respectfully submitted, this 3rd day of May 2013.
FOSTER GRAHAM MILSTEIN & CALISHER, LLP
HINDMANSANCHEZ P.C.
s/ Daniel K. Calisher
Daniel K. Calisher, Esq.
David S. Canter, Esq.
360 South Garfield Street, 6th Floor
Denver, Colorado 80209
(303) 333-9810
calisher@fostergraham.com
s/ William H. Short
William H. Short, Esq.
Molly C. Lucas, Esq.
5610 Ward Road, Suite 300
Arvada, Colorado 80002-1310
(303) 432-9999
bshort@hindmansanchez.com
mlucas@hindmansanchez.com
Attorneys for Plaintiff Aurora Bank, FSB
Attorneys for Defendant Mortgage Master,
Inc.
DATED at Denver, Colorado, on May 10, 2013.
BY THE COURT:
s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge
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 Aurora Bank, FSB v. Mortgage Master, Inc. 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, or unless my principal or I receive a subpoena or order as described
in Section 6(G).of the Protective Order.
4.
I will comply with Paragraph 13 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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