W.J.Bradley Mortgage Capital, LLC v. Legacy Group Lending, Inc.
Filing
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ORDER granting 36 Joint Motion and Stipulationfor Entry of Protective Order for Confidential Disclosure of Discovery Materials, by Judge Richard P. Matsch on 3/23/2015. (ktera)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-01103-RPM
W.J. BRADLEY MORTGAGE CAPITAL,
LLC Plaintiff,
v.
LEGACY GROUP LENDING, INC.
Defendant.
Consolidated with:
Civil Action No. 14-cv-01486-RPM
LEGACY GROUP LENDING, INC.
and LEGACY GROUP HOLDINGS,
INC., Plaintiffs,
v.
W.J. BRADLEY MORTGAGE CAPITAL,
LLC, Defendant.
ORDER GRANTING JOINT MOTION AND STIPULATION FOR ENTRY OF
PROTECTIVE ORDER FOR CONFIDENTIAL DISCLOSURE OF DISCOVERY
MATERIALS
THIS CAUSE is before the Court upon the Parties' Joint Motion and Stipulation
for Entry of Protective Order for Confidential Disclosure of Discovery Materials
("Motion"), pursuant to Fed. R. Civ. P. 26(c).
The Court having reviewed the Motion and being otherwise duly advised, and
finds that there may be a potentially significant number of documents containing the
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nonpublic personal loan information of borrowers and potentially confidential and
propriety information of the parties to be exchanged in discovery in this case such that
document-by-document redaction of discovery materials might be impracticable if the
case is to proceed in an orderly, timely, and efficient manner.
The Court further finds that the parties’ interests in protecting the non-public
personal information of borrowers as well as the parties' own confidential and
commercially sensitive information from unnecessary disclosure, coupled with the
parties’ desire to benefit the Court with an orderly and expeditious resolution of this
matter on its merits, outweigh any concerns of the parties or their interest in disclosure
of such materials. 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 the prompt resolution of disputes over confidentiality, and facilitate the
preservation of material worthy of protection.
Based upon the foregoing findings, supported by good cause, IT IS HEREBY
ORDERED as follows:
1.
The purpose of this Protective Order is to assure that Confidential
Information, as defined herein, shall be accessible only to Qualified Persons, as defined
herein, and that it shall be used only in connection with the trial or preparation of this
action, except as otherwise provided herein.
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2.
Any information, document, or thing produced in connection with this
litigation that is reasonably believed by any party or third party to contain or constitute
nonpublic personal information shall be designated as “Confidential” (referred to herein
as “Confidential Information”). As used herein, Confidential Information may include: (a)
all paper, tapes, documents (including answers to document requests, interrogatories,
and requests for admission), disks, diskettes, and other tangible things produced by or
obtained from any person in connection with this litigation; (b) transcripts of depositions
herein and exhibits thereto; (c) all copies, extracts, and complete or partial summaries
or charts or notes prepared or derived from such papers, documents or things, (d)
expert reports, and (e) items listed in (a) through (d) that a party produces that have
been previously designated as being “CONFIDENTIAL,” “CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER,” or other words of similar meaning. Before designating any
Confidential Information, the designating party's counsel shall make a reasonable and
good faith determination, with supporting cause of substantiation that the information
warrants protection because it includes information that is not generally available in the
public domain and is confidential or proprietary information that is protected under law
from disclosure or dissemination. The handling of such Confidential Information shall
be made in accordance with the terms of this Order.
3.
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If a producing party inadvertently fails to mark Confidential Information upon
its production, such party may subsequently designate such Confidential Information by
giving written notice to the receiving party and providing properly marked or designated
copies within fourteen (14) calendar days of such notice.
4.
Any party may challenge the designation of any documents or information
as Confidential Information by doing so in writing at any time prior to 30 calendar days
before the cutoff date for dispositive motions. If the parties dispute the Confidential
Information designation, the producing party shall file a motion for protective order
within 10 calendar days of being notified of the objection. Failure to move for a
protective order within 10 calendar days acts to nullify an “Confidential” designation
absent a showing of good cause as to why such a motion was not timely filed. The
producing party shall have the burden to prove that the challenged document,
information, or testimony is entitled to protection. If a motion for protective order is filed
within 10 calendar days of notice of the objection, the confidentiality of the documents,
testimony, or other materials designed by the parties as Confidential Information shall
retain their confidential status and shall be subject to the terms of this Order until the
Court rules on the notice.
5.
All Confidential Information received from any producing party shall be
used solely in connection with, and only as necessary to, this litigation and the
preparation and trial of this case, or any related appellate proceeding, and not for any
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other purpose, including without limitation any other litigation or any business,
competitive, or governmental purpose or function. To that end, the parties shall not
distribute or disclose any Confidential Information received in this litigation to any third
party (or any of the parties' agents, consultants, officers, directors, employees, or
representatives except on a need to know basis and pursuant to such agent, consultant,
employee, officer, director, or representative's obligation to maintain the confidentiality
of such document or information).
6.
Confidential
Information and information derived from Confidential
Information, including without limitation any testimony about an exhibit designated as
Confidential Information, shall not be disclosed except as set forth in paragraph 7.
7.
Any information, document, or thing designated as Confidential may only
be disclosed to the following persons (“Qualified Persons”):
(a)
Outside counsel of record for any party to this action;
(b)
Paralegal, stenographic, clerical and secretarial personnel
employed by counsel listed in (a) (including but not limited to photocopy
service personnel and document management vendors, such as coders
and data- entry personnel, retained by outside counsel);
(c)A party to this action, including its officers, employees, and agents;
(d)
Court personnel including stenographic, video or audio reporters
engaged to record depositions in this litigation, and certified interpreters
and/or translators;
(e)
Non-party expert(s) or consultant(s) and their secretarial, technical
and clerical employees (including but not limited to photocopy service
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personnel and document management vendors, such as coders and dataentry personnel, retained by outside counsel) who actively assist in the
preparation of this action;
(f)
Any person identified on the face of any such
Confidential Information as an author or as recipient thereof;
(g)
Any person who is determined to have been an author and/or
previous recipient of the Confidential Information, but are not identified on
the face thereof, provided there is prior testimony of actual authorship or
receipt of the Confidential Information by such person prior to such person
being shown any Confidential Information;
(h)
Any non-party engaged by the parties or appointed by the Court for
purposes of acting as a Discovery Referee, Special Master, and/or
neutral arbitrator or mediator in any alternative dispute resolution
procedures in which the parties may participate;
(i)
Any person as ordered by the Court; and
(j)
Any person deposed in the above-captioned action who signs an
acknowledgment jointly drafted by the parties that the deponent will be
subject to the terms of this Protective Order. Said acknowledgment shall
include the following terms: (1) the deponent
cannot keep a copy of any documents shown to them; and (2) the
deponent cannot disclose any of the confidential information they
receive under penalty of contempt. Any party may object to the
disclosure of confidential information to this classification of
qualified person and, in the event of a dispute between the parties
thereon, the remedy is to seek relief under Fed. R. Civ. P. 26(c).
8.
The provisions of this Order are without prejudice to the right of any party
to this Order to:
(a)
Resist or compel discovery with respect to, or seek to obtain
additional or different protection for, material claimed to be protected work
product or privileged under applicable state or federal law, material as to
which the producing party claims a legal obligation not to disclose, or
material not required to be provided pursuant to applicable state or federal
law;
(b)Seek to modify or obtain relief from any aspect of this Order; or
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(c)
Object to the use, relevance or admissibility at trial or otherwise of
any material, whether or not designated in whole or in part as Confidential
Information governed by this Order. This Order shall not govern the use
or admissibility of any evidence at trial or the procedures for using such
documents or information at trial.
9.
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.
10.
If, either during the course of this litigation or following the conclusion
thereof, Confidential Information is disclosed to any person other than in the manner
authorized by this Order, the person responsible for the disclosure must immediately
bring all pertinent facts relating to such disclosure to the attention of counsel for all
parties and the Court and, without prejudice to other rights and remedies of any party,
make every effort to prevent further disclosure.
11.
If Confidential Information is disclosed at a deposition, only the
stenographic, video or audio reporter and those persons who are authorized by the terms
of this Order to receive such material may be present. The portions of the transcripts of
all testimony designated as Confidential Information shall be labeled with the appropriate
designation by the reporter. If any document or information designated as Confidential
Information pursuant to this Order is used during the course of a deposition herein, that
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portion of the deposition record reflecting such material shall be labeled with the
appropriate designation.
12.
With respect to documentation in the possession of a receiving party,
within sixty (60) calendar days after the conclusion of the trial and of any appeals, or
upon other termination of this litigation, and any and all future claims and/or disputes
between the Parties, all Confidential Information received under the provisions of this
Order, shall be tendered back to the Producing party or destroyed except to the extent
that any of the foregoing includes or reflects work product of the receiving party (which
work product may be maintained by outside counsel for the parties, but not by the
parties themselves), and except to the extent that such material has been filed with a
court in which proceedings related to this action are being conducted, provided such
information is stored in a manner so as to preserve its confidentiality. If Confidential
Information is destroyed rather than tendered back, counsel for the party destroying the
Confidential Information shall provide within seven (7) calendar days of such destruction
confirmation of such destruction.
13.
If at any time any Confidential Information protected by this Order or
information produced in this litigation is subpoenaed from the receiving party by any court,
administrative or legislative body, or is requested by any other person or entity purporting
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to have authority to require the production of such information, the party to whom the
subpoena or other request is directed shall immediately give written notice thereof to the
producing party with respect to such information and shall afford the producing party
reasonable opportunity to pursue formal objections to such disclosures. However, nothing
herein shall be construed as authorizing a party to disobey a lawful subpoena issued in
another action.
14.
Although the burden shall be on the Producing Party to demonstrate to the
Court the need for such designations, nothing in the Order shall restrict the right of any
party to move the Court for a determination that the documents designated as
Confidential Information need not be protected against the unauthorized disclosure and
shall not be treated as Confidential Information.
15.
Nothing in the Order shall restrict the right of any party to utilize documents
or information which they have obtained from independent sources, provided that this
shall not include documents or information obtained from the parties which have been
previously designated as Confidential Information.
16.
This Protective Order is not, and shall not be deemed to constitute, a
determination that any specific documents, item of information, or deposition actually
constitutes or contains confidential information, and nothing herein shall prevent any
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party hereto from applying to the Court for, or shall present the Court from granting,
relief from this Order or further protective orders.
17.
Rule 26(b)(5) of the Federal Rules of Civil Procedure and Rule 502 of the
Federal Rules of Evidence shall govern any inadvertent production of materials
produced in response to discovery requests in this action by any party that claims
material should have been withheld on the grounds of a privilege, including the work
product doctrine (collectively referred to as "Inadvertently Produced Privileged
Material"). The Court hereby holds and orders in accordance with Rule 502(d) of the
Federal Rules of Evidence that the privileges and protections related to any
Inadvertently Produced Privileged Material are not waived by a disclosure connected
with the action, and that such disclosure shall not be a waiver in any other federal or
state proceeding.
18.
In connection with any motion presented to the Court pursuant to Rule
26(b)(5) of the Federal Rules of Civil Procedure or similar motion, the receiving party
may not assert that: (a) the fact of the allegedly inadvertent production alone constitutes
a waiver of an applicable privilege; (b) the producing party did not take reasonable steps
to prevent inadvertent disclosure within the meaning of Rule 502(b)(2) of the Federal
Rules of Evidence; or (c) notice by the producing party to the receiving party of
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Inadvertently Produced Privileged Material within five business days of the producing
party’s attorney of record in this Action gaining actual knowledge of such an error does
not constitute promptly taking reasonable steps to rectify the error within the meaning of
Rule 502(b)(3) of the Federal Rules of Evidence. However, nothing in this paragraph
shall preclude a party from asserting that the production of the allegedly Inadvertently
Produced Privileged Material was not inadvertent.
19.
The terms of this Order shall be effective and enforceable as between the
parties immediately upon its execution by counsel for such parties.
20.
The Court may modify the terms and conditions of this Order for good
cause, or in the interest of justice, or on its own order at any time in these proceedings.
21.
Without separate court order, this Order is not intended to, and shall not
be interpreted to change, amend, or circumvent any court rule or local rule.
The foregoing STIPULATION AND AGREEMENT is hereby ADOPTED and
ENTERED as an ORDER of the Court on March 23, 2015.
s/Richard P. Matsch
Hon. Richard P. Matsch
United States District Court, Senior Judge
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