Lehman Brothers Holdings Inc. v. First California Mortgage Corporation

Filing 20

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 11/6/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-CV-02113-CMA-KMT

LEHMAN BROTHERS HOLDINGS INC.,
Plaintiff,
v.
FIRST CALIFORNIA MORTGAGE CORPORATION,
Defendant.

STIPULATED PROTECTIVE ORDER
______________________________________________________________________

Lehman Brothers Holdings Inc. (hereinafter “Plaintiff”), and Defendant First
California Mortgage Corporation (“Defendant”), 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 (the “Parties”) recognize that during the discovery phase
of the above-captioned action (the “Civil Action”), the Parties, 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, the Parties
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 borrower(s) of the
loan(s) that is/are the subject of this action; 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.

Scope.

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.

Confidential Information.

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.
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.
ii.

E.

such disclosure is necessary to assist in the prosecution or defense
of the litigation of this action ; and
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, 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.
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.

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”), the Parties must comply
with D.C.COLO.LCivR 7.2(B). The parties recognize that pursuant to D.C.COLO.LCivR
7.2(D),
“Any document that is the subject of a motion to restrict access may
be filed as a restricted document, and will be subject to restriction until the
motion is determined by the Court. If a document is filed as a restricted

document without an accompanying motion to restrict access, it will retain
a Level 1 restriction [i.e., access limited to the parties and the court] for
fourteen days. If no motion to restrict is filed within such time period, the
access restriction will expire and the documents will be open to public
inspection.”
10.

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.
11.

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.
12.

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.
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 this

action, by judgment, dismissal, settlement, appeal, or otherwise.
SO STIPULATED.

Respectfully submitted, this 6th day of November 2013.
FOSTER GRAHAM MILSTEIN & CALISHER, LLP

MOYE WHITE LLP

s/ Daniel K. Calisher
Daniel K. Calisher, Esq.
David S. Canter, Esq.
360 South Garfield Street, 6th Floor
Denver, Colorado 80209
[phone]
[e-mail]
[e-mail]

s/ William Jones
William F. Jones, Esq.
Dean E. Richardson, Esq.
Moye White LLP
16 Market Square
1400 16th Street, 6th Floor
Denver, Colorado 80202-1473
[phone]
[e-mail]
[e-mail]

Attorneys for Plaintiff Lehman Brothers
Holdings Inc.

Attorneys for Defendant First California
Mortgage Company

IT IS SO ORDERED:
Date: November 6, 2013
BY THE COURT:

Kathleen M. Tafoya
United States Magistrate Judge

EXHIBIT A
PERSONAL UNDERTAKING REGARDING PROTECTIVE ORDER
I, ___________________________ declare:

1.

My address is ________________________________________.

My present

occupation is ________________________________.

2.

I have received the Stipulated Protective Order (“Protective Order”) issued in

Lehman Brothers Holdings Inc. v. First California Mortgage Corporation. 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 _____________, 20__, at __________________________.

Signature

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