KARTOZIA et al v. SERVICE 1ST MORTGAGE INC et al
Filing
217
ORDER granting 216 Motion to Modify the Protective Order. Ordered by US DISTRICT JUDGE CLAY D LAND on 2/13/2023 (esl)
Case 4:18-cv-00194-CDL Document 217 Filed 02/13/23 Page 1 of 6
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
UNITED STATES OF AMERICA, ex
rel. GEORGE KARTOZIA,
Plaintiffs,
v.
Civil Action No. 4:18-CV-194-CDL
FREEDOM MORTGAGE
CORPORATION; RMK FINANCIAL
CORPORATION d/b/a MAJESTIC
HOME LOAN; LOANDEPOT.COM,
LLC; SERVICE 1ST MORTGAGE,
INC.; ROBERT COLE; and ARMOUR
SETTLEMENT SERVICES, LLC,
Defendants.
ORDER
This Court entered the parties’ Protective Order on March 4, 2022. ECF No.
199. The Protective Order defines “Confidential Information” to include “any
information supplied in any form, or any portion thereof, that directly or indirectly
identifies a potential or actual borrower, servicemember, or veteran (collectively, a
“Borrower”) in any manner or for which there is a reasonable basis to believe
could be used to identify a Borrower.” ECF No. 199 at ¶ 2.a. The Protective Order
explains that “[t]his definition is provided to facilitate discovery and does not
waive a party’s right to challenge the designation or confidentiality of information,
Case 4:18-cv-00194-CDL Document 217 Filed 02/13/23 Page 2 of 6
including information described in this paragraph.” ECF No. 199 at ¶ 2.a. The
Protective Order further allows any party or non-party to “designate and disclose
information in this case as ‘CONFIDENTIAL.’” ECF No. 199 at ¶ 1.
Paragraph 9 of the Protective Order states that it is “subject to modification
on the motion of any Party.” ECF No. 199 at ¶ 9. Several of the parties have served
Touhy requests on the Department of Veterans Affairs (“VA”). A court order is
required before VA is authorized to produce the documents at issue. See 5 U.S.C. §
552a(b)(11), 38 U.S.C. § 5701(b)(2), and 38 C.F.R. § 1.511(b).
The parties agree that the Court should modify the existing Protective Order
to permit VA to produce, subject to an appropriate court order, documents
responsive to the parties’ Touhy requests that contain personally identifiable
information such as veterans’ names, addresses, and loan numbers. These
documents are contained in a system of records protected from disclosure under
the Privacy Act, 5 U.S.C. § 552a, and are also protected by VA’s confidentiality
statute, 38 U.S.C. § 5701, and regulation, 38 C.F.R. § 1.511. Disclosure of this
information is governed by the Privacy Act, 5 U.S.C. § 552a, which, inter alia,
allows federal government agencies to release records maintained on individuals
“pursuant to the order of a court of competent jurisdiction.” See 5 U.S.C. §
552a(b)(11). Requests for court orders under § 552a(b)(11) are evaluated by
balancing the need for disclosure against any potential harm from disclosure.
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Applying this principle to this case, the Court finds that the records sought
by the parties are relevant to the claims and defenses in this litigation, and that any
Privacy Act concerns are outweighed by the need for disclosure. The privacy
concerns are especially minimal here. On balance, the Court finds that disclosure
of the records requested is appropriate under 5 U.S.C. § 552a(b)(11).
IT IS HEREBY ORDERED:
1.
The VA is authorized to produce all records maintained in a system of
records containing personally identifiable information that are responsive to the
parties’ Touhy requests, in unredacted form, to be used solely for the purposes of
this litigation and not otherwise.
2.
All records obtained from the VA pursuant to this Order are hereby
designated as “Confidential Information” as that term is defined in the parties’
Protective Order. ECF No. 199 at ¶ 2.a.
3.
All documents, pleadings, or transcripts of deposition testimony filed
in this litigation, or any appeal of this litigation, that contain or disclose the
contents of Confidential Information produced by the VA in this case (the “VA’s
Confidential Information”), shall be submitted pursuant to the process identified in
paragraph 5 of the Protective Order.
4.
At the conclusion of this litigation, including any appeal taken
therefrom, all originals or reproductions of VA’s Confidential Information shall be
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destroyed or returned to counsel for VA within 30 days of the deadline to appeal
the termination of the action to the extent an appeal is not effectuated (“the
termination of the action”). Notwithstanding this language, this shall not include
documents (1) that have been filed with the Court; (2) were introduced as an
exhibit at a deposition, but the confidentiality of these documents must be
maintained in perpetuity; (3) that contain notations of counsel or
experts/consultants, in which case they are to be destroyed within 30 days of the
termination of the action; or (4) that are contained in counsel’s electronic systems
(including email and document repositories), but the confidentiality of these
documents must be maintained in perpetuity. When the VA’s Confidential
Information is destroyed, the Receiving Party will certify in writing to the VA that
they have so destroyed such documents.
5.
Upon completion of this action, including any appeal taken therefrom,
counsel for Plaintiff and Defendants shall certify to this Court that they have
irretrievably destroyed or returned all documents as required by Paragraph 4. They
shall further certify that they have destroyed or returned all copies and/or
duplicates, as defined by Rule 1001(e) of the Federal Rules of Evidence, that they
have made of such documents.
6.
This Modified Stipulated Protective Order does not compromise the
rights of any party or non-party to object to discovery pursuant to the Federal
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Rules of Civil Procedure or any other governing authority nor does it alter any
burden of proof regarding any assertion of privilege in this matter.
7.
Nothing in this Modified Stipulated Protective Order shall prohibit a
party or VA from seeking further protection of the Confidential Information by
stipulation among the parties, approved by the Court, or by application to the Court
directly.
8.
Neither VA nor the United States Department of Justice, including the
United States Attorney’s Office, nor any of their officers, agents, employees, or
attorneys, shall bear any responsibility or liability for any disclosure of any
information obtained by the parties under this Modified Stipulated Protective
Order, or of any information contained in such documents.
9.
This Modified Stipulated Protective Order does not constitute any
ruling on the question of whether any particular document or category of
information is properly discoverable or admissible and does not constitute any
ruling on any potential objection. Other than explicitly set forth herein, this
Modified Stipulated Protective Order does not apply to any information or
documents subject to a claim of privilege or other basis of exclusion, and this
Modified Stipulated Protective Order shall not be precedent for adopting any
procedure with respect to the disclosure of any such other information.
10.
All other provisions of the parties’ March 4, 2022 Protective Order
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shall remain in effect.
11.
VA shall designate relevant documents that contain Confidential
Information as “Confidential” pursuant to this Modified Stipulated Protective
Order and produce them forthwith.
SO ORDERED, this 13th day of February, 2023.
s/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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