Idaho Housing and Finance Association v. Genworth Mortgage Insurance Company et al

Filing 16

PROTECTIVE ORDER granting 14 Stipualtion Re: Protective Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Idaho Housing and Finance Association v. Genworth Mortgage Insurance Corporation et al

Doc. 16

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

ID A H O HOUSING AND FINANCE A S S O C IA T IO N , an independent public b o d y corporate and politic, Plaintiff, v. G E N W O R T H MORTGAGE IN S U R A N C E CORPORATION, a North C a ro lin a corporation, a.k.a. G E N W O R T H FINANCIAL SERVICES, IN C ., a Delaware corporation, a.k.a. G E N W O R T H FINANCIAL; DOES I th ro u g h X; and CORPORATE DOES I th ro u g h X, Defendants.

C a s e No. 1:10-CV-367-BLW P R O T E C T I V E ORDER

T h e Court has before it the parties' Stipulation Re: Protective Order (Dkt. 14). The Court finds good cause to grant the stipulation. Accordingly, the stipulation is g ra n te d and adopted as follows: 1. P U R P O S E S AND LIMITATIONS D is c lo s u re and discovery activity in the action are likely to involve production of c o n f id e n tia l, proprietary, or private information for which special protection from public d is c lo s u re and from use for any purpose other than prosecuting, defending, or attempting

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to settle this litigation would be warranted. Accordingly, the parties hereby stipulate and p e titio n the court to enter the following Stipulated Protective Order. The parties a c k n o w le d g e that this Order does not confer blanket protection on all disclosures or re s p o n s e s to discovery and that the protection it affords extends only to the limited in f o rm a tio n or items that are entitled under the applicable legal principles to treatment as c o n f id e n tia l. The parties further acknowledge, as set forth in Section 10, below, that this S tip u la te d Protective Order creates no entitlement to file confidential information under s e a l; Civil Local Rule 5.3 sets forth the procedures that must be followed and reflects the s ta n d a rd s that will be applied when a Party seeks permission from the court to file m a te ria l under seal. Finally, the parties acknowledge that nothing in this Stipulation and O rd e r modifies or changes in any way the applicability and enforcement of Civil Local R u le 5.5 concerning the protection of personal privacy. 2. D E F IN IT IO N S 2 .1 P a rty: any party to this action, including all of its officers, directors,

e m p lo ye e s , consultants, retained experts, and Outside Counsel and their support staff. 2.2 D is c lo su re or Discovery Material: all items or information, regardless of

th e medium or manner generated, stored, or maintained (including, among other things, te s tim o n y, transcripts, or tangible things) that are produced or generated in disclosures or re s p o n s e s to discovery in this matter. 2.3 " C o n f id e n tia l" Information or Items: A Producing Party may designate as

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"Confidential" such non-public documents, information, and materials produced by it w h ic h the Producing Party believes in good faith constitute, contain, or reflect p ro p rie ta ry, trade secret, or commercially sensitive information, that is not generally k n o w n and/or which the Party would not normally reveal or, if revealed, would require be m a in ta in e d in confidence. This information includes but is not limited to income s ta te m e n ts, other financial documents, customer lists, vendor lists, training manuals, p o lic y guidelines, and other information that is confidential and proprietary to either p a rty. This information also includes, but is not limited to, personal financial in f o rm a tio n , redacted or unredacted, of any individual applying for or receiving a loan or m o rtg a g e insurance from a Producing Party. 2 .4 " H ig h ly Confidential - Attorneys' Eyes Only" Information or Items:

extremely sensitive Confidential Information whose disclosure to another Party or n o n -p a rty would create a substantial risk of serious injury that could not be avoided by le s s restrictive means. 2.5 R e c e iv in g Party: a Party that receives Disclosure or Discovery Material

f ro m a Producing Party. 2 .6 P ro d u c in g Party: a Party or non-party that produces Disclosure or

D is c o v e ry Material in this action. 2.7 D e s ig n a tin g Party: a Party or non-party that designates information or items

th a t it produces in disclosures or in responses to discovery as "Confidential" or "Highly

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Confidential - Attorneys' Eyes Only." 2 .8 P ro te c te d Material: any Disclosure or Discovery Material that is designated

a s "Confidential" or as "Highly Confidential - Attorneys' Eyes Only." 2.9 O u ts id e Counsel: attorneys who are not employees of a Party but who are

re ta in e d to represent or advise a Party in this action. 2.10 2.11 H o u s e Counsel: attorneys who are employees of a Party. C o u n s e l (without qualifier): Outside Counsel and House Counsel (as well

a s their support staffs). 2 .1 2 E x p e rt: a person with specialized knowledge or experience in a matter

p e rtin e n t to the litigation who has been retained by a Party or its Counsel to serve as an e x p e rt witness or as a consultant in this action and who is not a past or a current employee o f a Party or of a competitor of a Party's and who, at the time of retention, is not a n tic ip a te d to become an employee of a Party or a competitor of a Party's. This definition in c lu d e s a professional jury or trial consultant retained in connection with this litigation. 2 .1 3 P ro f e s sio n a l Vendors: persons or entities that provide litigation support

s e rv ic e s (e.g., photocopying; videotaping; translating; preparing exhibits or d e m o n s tra tio n s ; organizing, storing, retrieving data in any form or medium; etc.) and their e m p lo ye e s and subcontractors. 3. SC O PE T h e protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also any information copied or extracted therefrom, as w e ll as all copies, excerpts, summaries, or compilations thereof, plus testimony, c o n v e rs a tio n s , or presentations by parties or Counsel to or in court or in other settings that m ig h t reveal Protected Material. 4. D U R A T IO N E v e n after the termination of this litigation, the confidentiality obligations imposed b y this Order shall remain in effect until a Designating Party agrees otherwise in writing o r a court order otherwise directs. 5. D E S I G N A T I N G PROTECTED MATERIAL 5 .1 E x e rc ise of Restraint and Care in Designating Material for Protection. Each

P a rty or non-party that designates information or items for protection under this Order m u s t take care to limit any such designation to specific material that qualifies under the a p p ro p ria te standards. A Designating Party must take care to designate for protection o n ly those parts of material, documents, items, or oral or written communications that q u a lif y - so that other portions of the material, documents, items, or communications for w h ic h protection is not warranted are not swept unjustifiably within the ambit of this O rd e r. Mass, indiscriminate, or routinized designations are prohibited. Designations that a re shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process, or to impose u n n e c e s s a ry expenses and burdens on other parties), expose the Designating Party to

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sanctions. If it comes to a Party's or a non-party's attention that information or items that it designated for protection do not qualify for protection at all, or do not qualify for the le v e l of protection initially asserted, that Party or non-party must promptly notify all other p a rtie s that it is withdrawing the mistaken designation. 5 .2 M a n n e r and Timing of Designations: Except as otherwise provided in this

O rd e r (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or o rd e re d , material that qualifies for protection under this Order must be clearly so d e s ig n a te d before the material is disclosed or produced. Designation in conformity with this Order requires: (a) f o r information in documentary form (apart from transcripts of depositions

o r other pretrial or trial proceedings), that the Producing Party affix the legend " C O N F ID E N T IA L " or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" on e a c h page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the p ro te c te d portion(s) (e.g., by making appropriate markings in the margins) and must s p e c if y, for each portion, the level of protection being asserted (either " C O N F ID E N T IA L " or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"). Given the volume of Confidential, non-party personal information that may be disclosed in this case, all portions of personal financial information, redacted or unredacted, of any in d iv id u a l applying for or receiving a loan or mortgage insurance from a Producing Party

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may be marked Confidential irrespective of the limitations set forth above. A Party or n o n -p a rty that makes original documents or materials available for inspection need not d e s ig n a te them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all o f the material made available for inspection shall be deemed "Highly Confidential A tto rn e ys ' Eyes Only." After the inspecting Party has identified the documents it wants c o p ie d and produced, the Producing Party must determine which documents, or portions th e re o f , qualify for protection under this Order, then, before producing the specified d o c u m e n ts , the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or " H IG H L Y CONFIDENTIAL - ATTORNEYS' EYES ONLY") at the top of each page th a t contains Protected Material. If only a portion or portions of the material on a page q u a lif ie s for protection, the Producing Party also must clearly identify the protected p o rtio n (s ) (e.g., by making appropriate markings in the margins) and must specify, for e a c h portion, the level of protection being asserted (either "CONFIDENTIAL" or " H IG H L Y CONFIDENTIAL - ATTORNEYS' EYES ONLY"), (b) f o r testimony given in deposition or in other pretrial or trial proceedings,

th a t the Party or non-party offering or sponsoring the testimony identify on the record, b e f o re the close of the deposition, hearing, or other proceeding, all protected testimony, a n d further specify any portions of the testimony that qualify as "Highly Confidential A tto rn e ys ' Eyes Only." When it is impractical to identify separately each portion of

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testimony that is entitled to protection, and when it appears that substantial portions of the te s tim o n y may qualify for protection, the Party or non-party offering or sponsoring the te s tim o n y shall identify on the record (before the deposition or proceeding is concluded) th e need for up to 20 days to identify the specific portions of the testimony as to which p ro te c tio n is sought and to specify the level of protection being asserted ("Confidential" o r "Highly Confidential - Attorneys' Eyes Only."). Only those portions of the testimony th a t are appropriately designated for protection within the 20 days shall be covered by the p ro v is io n s of this Stipulated Protective Order. Transcript pages containing Protected M a te ria l must be separately bound by the court reporter, who must affix to the top of each s u c h page the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL A T T O R N E Y S ' EYES ONLY," as instructed by the Party or non-party offering or s p o n s o rin g the witness or presenting the testimony, (c) f o r information produced in some form other than documentary, and for any

o th e r tangible items, that the Producing Party affix in a prominent place on the exterior of th e container or containers in which the information or item is stored the legend " C O N F ID E N T IA L " or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY." If o n ly portions of the information or item warrant protection, the Producing Party, to the e x te n t practicable, shall identify the protected portions, specifying whether they qualify as " C o n f id e n tia l" or as "Highly Confidential - Attorneys' Eyes Only." 5 .3 In a d v e rte n t Failures to Designate. If timely corrected, an inadvertent failure

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to designate qualified information or items as "Confidential" or "Highly Confidential A tto rn e ys ' Eyes Only" does not, standing alone, waive the Designating Party's right to s e c u re protection under this Order for such material. If material is appropriately d e s ig n a te d as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" after the m a te ria l was initially produced, the Receiving Party, on timely notification of the d e s ig n a tio n , must make reasonable efforts to assure that the material is treated in a c c o rd a n c e with the provisions of this Order. 6. C H A L L E N G I N G CONFIDENTIALITY DESIGNATIONS 6 .1 T im in g of Challenges. Unless a prompt challenge to a Designating Party's

c o n f id e n tia lity designation is necessary to avoid foreseeable substantial unfairness, u n n e c e s s a ry economic burdens, or a later significant disruption or delay of the litigation, a P a rty does not waive its right to challenge a confidentiality designation by electing not to m o u n t a challenge promptly after the original designation is disclosed. 6.2 M e e t and Confer. A Party that elects to initiate a challenge to a Designating

P a rty's confidentiality designation must do so in good faith and must begin the process by c o n f e rrin g with Counsel for the Designating Party. In conferring, the challenging Party m u s t explain the basis for its belief that the confidentiality designation was not proper and m u s t give the Designating Party an opportunity to review the designated material, to re c o n s id e r the circumstances, and, if no change in designation is offered, to explain the b a s is for the chosen designation. A challenging Party may proceed to the next stage of

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the challenge process only if it has engaged in this meet and confer process first. 6.3 J u d ic ia l Intervention. A Party that elects to press a challenge to a

c o n f id e n tia lity designation after considering the justification offered by the Designating P a rty may file and serve a motion that identifies the challenged material and sets forth in d e ta il the basis for the challenge. Each such motion must be accompanied by a competent d e c la ra tio n that affirms that the movant has complied with the meet and confer re q u ire m e n ts imposed in the preceding paragraph and that sets forth with specificity the ju s tif ic a tio n for the confidentiality designation that was given by the Designating Party in th e meet and confer dialogue. The burden of persuasion in any such challenge p ro c e e d in g shall be on the Designating Party. Until the court rules on the challenge, all p a rtie s shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation. Any challenge proceeding shall be s u b je c t to the provisions of Federal Rule of Civil Procedure 37. 7. A C C E S S TO AND USE OF PROTECTED MATERIAL 7 .1 B a s ic Principles. A Receiving Party may use Protected Material that is

d is c lo s e d or produced by another Party or by a non-party in connection with this case only f o r prosecuting, defending, or attempting to settle this litigation. Such Protected Material m a y be disclosed only to the categories of persons and under the conditions described in th is Order. When the litigation has been terminated, a Receiving Party must comply with th e provisions of section 11, below (FINAL DISPOSITION). Protected Material must be

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stored and maintained by a Receiving Party at a location and in a secure manner that e n s u re s that access is limited to the persons authorized under this Order. 7.2 Disclosure of "Confidential" Information or Items. Unless otherwise

o rd e re d by the court or permitted in writing by the Designating Party, a Receiving Party m a y disclose any information or item designated "Confidential" only to: (a) th e Receiving Party's Outside Counsel of record in this action, as well as

e m p lo ye e s of said Counsel to whom it is reasonably necessary to disclose the information f o r this litigation; (b ) th e officers, directors, and employees (including House Counsel), or

s u p p o rt staff to any officer, director or employee of the Receiving Party to whom d is c lo s u re is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A). The signed "Agreement to Be Bound by P ro te c tiv e Order" (Exhibit A) must be received by the Designating Party prior to the d is c lo s u re of "Confidential" Information or Items to the signatory; (c) e x p e rts (as defined in this Order) of the Receiving Party to whom disclosure

is reasonably necessary for this litigation and who have signed the "Agreement to Be B o u n d by Protective Order" (Exhibit A). The signed "Agreement to Be Bound by P ro te c tiv e Order" (Exhibit A) must be received by the Designating Party prior to the d is c lo s u re of "Confidential" Information or Items to the signatory; (d) th e Court and its personnel;

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(e)

c o u rt reporters, their staffs, and professional vendors to whom disclosure is

re a s o n a b ly necessary for this litigation; (f) d u rin g their depositions, witnesses in the action to whom disclosure is

re a s o n a b ly necessary and who have signed the "Agreement to Be Bound by Protective O rd e r" (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions th a t reveal Protected Material must be separately bound by the court reporter and may not b e disclosed to anyone except as permitted under this Stipulated Protective Order, (g) 7.3 th e author of the document or the original source of the information. D is c lo su re of "Highly Confidential - Attorneys' Eyes Only" Information or

Ite m s . Unless otherwise ordered by the court or permitted in writing by the Designating P a rty, a Receiving Party may disclose any information or item designated "Highly C o n f id e n tia l - Attorneys' Eyes Only" only to: (a) th e Receiving Party's Outside Counsel of record in this action, as well as

e m p lo ye e s of said Counsel to whom it is reasonably necessary to disclose the information f o r this litigation; (b ) E x p e rts (as defined in this Order) (1) to whom disclosure is reasonably

n e c e s s a ry for this litigation, and (2) who have signed the "Agreement to Be Bound by P ro te c tiv e Order" (Exhibit A); (c) (d) th e Court and its personnel; c o u rt reporters, their staffs, and professional vendors to who disclosure is

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reasonably necessary for this litigation; and (e) 8. th e author of the document or the original source of the information.

P R O T E C T E D MATERIAL SUBPOENAED OR ORDERED PRODUCED IN O T H E R LITIGATION If a Receiving Party is served with a subpoena or an order issued in other litigation

th a t would compel disclosure of any information or items designated in this action as " C o n f id e n tia l" or "Highly Confidential - Attorneys' Eyes Only" the Receiving Party must s o notify the Designating Party, in writing (by fax, if possible) immediately and in no e v e n t more than five court days after receiving the subpoena or order. Such notification m u s t include a copy of the subpoena or court order. The Receiving Party also must im m e d ia te ly inform in writing the Party who caused the subpoena or order to issue in the o th e r litigation that some or all the material covered by the subpoena or order is the s u b je c t of this Protective Order. In addition, the Receiving Party must deliver a copy of th is Stipulated Protective Order promptly to the Party in the other action that caused the s u b p o e n a or order to issue. The purpose of imposing these duties is to alert the interested p a rtie s to the existence of this Protective Order and to afford the Designating Party in this c a s e an opportunity to try to protect its confidentiality interests in the court from which th e subpoena or order issued. The Designating Party shall bear the burdens and the e x p e n s e s of seeking protection in that court of its confidential material - and nothing in th e s e provisions should be construed as authorizing or encouraging a Receiving Party in th is action to disobey a lawful directive from another court.
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9.

U N A U T H O R I Z E D DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

P ro te c te d Material to any person or in any circumstance not authorized under this S tip u la te d Protective Order, the Receiving Party must immediately (a) notify in writing th e Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve a ll copies of the Protected Material, (c) inform the person or persons to whom u n a u th o riz e d disclosures were made of all the terms of this Order, and (d) request such p e rs o n or persons to execute the "Acknowledgment and Agreement to Be Bound" that is a tta c h e d hereto as Exhibit A. 10. F IL I N G PROTECTED MATERIAL W ith o u t written permission from the Designating Party or a court order secured a f te r appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected M a te ria l must comply with Civil Local Rule 5.3. 11. F IN A L DISPOSITION Unless otherwise ordered or agreed in writing by the Producing Party, within sixty d a ys following receipt of a request by the Producing Party, each Receiving Party must re tu rn all Protected Material to the Producing Party. As used in this subdivision, "all P ro te c te d Material" includes all copies, abstracts, compilations, summaries or any other f o rm of reproducing or capturing any of the Protected Material. With permission in

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writing from the Designating Party, the Receiving Party may destroy some or all of the P ro te c te d Material instead of returning it. Whether the Protected Material is returned or d e s tro ye d , the Receiving Party must submit a written certification to the Producing Party (a n d , if not the same person or entity, to the Designating Party) by the sixty day deadline th a t identifies (by category, where appropriate) all the Protected Material that was re tu rn e d or destroyed and that affirms that the Receiving Party has not retained any c o p ie s , abstracts, compilations, summaries or other forms of reproducing or capturing any o f the Protected Material. The Producing Party requesting the return and/or permitting th e destruction of Protected Material shall bear the costs and expenses incurred by the R e c e iv in g Party for the return and/or destruction of Protected Material. Notwithstanding th is provision, Counsel are entitled to retain an archival copy of all pleadings, motion p a p e rs , transcripts, legal memoranda, correspondence or attorney work product, even if s u c h materials contain Protected Material. Any such archival copies that contain or c o n s titu te Protected Material remain subject to this Protective Order as set forth in S e c tio n 4 (DURATION), above. 12. M IS C E L L A N E O U S 1 2 .1 R ig h t to Further Relief. Nothing in this Order abridges the right of any

p e rs o n to seek its modification by the Court in the future. 12.2 R ig h t to Assert Other Objections. By stipulating to the entry of this

P ro te c tiv e Order no Party waives any right it otherwise would have to object to disclosing

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or producing any information or item on any ground not addressed in this Stipulated P ro te c tiv e Order. Similarly, no Party waives any right to object on any ground to use in e v id e n c e of any of the material covered by this Protective Order.

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EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, __________________________ [print or type full name], of ______________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court of the District of Idaho on _____ __, _____ in the case of Idaho Housing And Finance Association v. Genworth Mortgage Insurance Corporation, Case No. CV 10-00367-BLW. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the District of Idaho for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint __________________ [print or type full name], of __________________ [print or type full address and telephone number], as my Idaho agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date:____________________________ City and State where sworn and signed: _________________________________ Printed name: ___________________________ Signature: ______________________________
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ORDER I T IS ORDERED: 1. T h e parties' Stipulation Re: Protective Order (Dkt. 14) is GRANTED and A DO PTED .

D A T E D : October 29, 2010

B. LYNN WINMILL C h ie f U.S. District Court Judge

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