National Credit Union Administration Board v. Credit Suisse Securities (USA) LLC et al

Filing 97

STIPULATED PROTECTIVE ORDER. The court finds good cause to enter the protective order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 1/27/2014. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NATIONAL CREDIT UNION
ADMINISTRATION BOARD,

Case No. 12-cv-2648 - JWL - JPO

Plaintiff,
v.
CREDIT SUISSE SECURITIES (USA) LLC,
et al.,
Defendants.
STIPULATED PROTECTIVE ORDER
1. PURPOSES AND LIMITATIONS
The parties agree that during the course of discovery it may be necessary to disclose certain
confidential information relating to the subject matter of this action. They agree that certain
categories of such information should be treated as confidential, protected from disclosure
outside this litigation, and used only for purposes of prosecuting or defending these actions, and
any appeals therefrom. The parties jointly request entry of this Stipulated Protective Order (the
“Order”) to facilitate the production, exchange, and discovery of documents and information that
the parties agree merit confidential treatment. This Order shall govern the handling of Discovery
Material produced in these Actions (as defined below).
The parties assert there is “good cause” for their request under Fed. R. Civ. P. 26. The
parties anticipate that various non-publicly available documents of a sensitive, confidential,
proprietary or commercially valuable nature will be produced in this litigation, including
federal agency records, loan files containing confidential borrower information, and other
governmental/corporate and financial documents not shared with the general public. Entry of
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this protective order will ensure the continued confidentiality of such non-publicly available
information.1
2. DEFINITIONS
2.1

Actions: the actions listed in the above caption.

2.2

Party: any party to the Actions, including all of its officers, directors, and

employees.
2.3

Non-Party: any entity that is not a named party to the Actions.

2.4

Discovery Material: all items or information, regardless of the medium or manner

generated, stored, or maintained, including, among other things, documents, testimony,
interrogatory responses, transcripts, depositions and deposition exhibits, responses to requests to
admit, recorded or graphic matter, electronically stored information, tangible things, and/or other
information produced, given, exchanged by, or obtained from any Party or Non-Party during
discovery in these Actions.
2.5

Confidential Supervisory Material: records exempt from public disclosure as

described in 12 C.F.R. § 792.11(a) and nonpublic NCUA meeting information as described in 12
C.F.R. § 791.12(a). Nothing in this Order shall require production of any Confidential
Supervisory Material to the extent that such production is precluded by law.

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The parties were mindful of the model standard form Protective Order recommended for us in this
district, and recognize that this proposed Protective Order does not conform in all respects to the model
standard form. The reason for the variance is that many of the same parties before the Court here are also
parties to similar actions pending in the Central District of California and the Southern District of New
York. See NCUA v. RBS Sec. Inc., No. 11-cv-5887-GW-JEM (C.D. Cal.); Goldman, Sachs & Co., No.
11-cv-6521-GHW-JEM (C.D. Cal.); NCUA v. Barclays Capital, Inc., No. 13-cv-6727-DLC (S.D.N.Y.);
NCUA v. Credit Suisse Securities (USA) LLC, No. 13-cv-6736-DLC (S.D.N.Y.); NCUA v. Morgan
Stanley & Co., Inc., No. 13-cv-6705-DLC (S.D.N.Y.); NCUA v. RBS Securities, Inc., No. 13-6726-DLC
(S.D.N.Y.); NCUA v. UBS Securities, LLC, No. 13-cv-6731-DLC (S.D.N.Y.); NCUA v. Goldman, Sachs
& Co., No. 13-cv-6721-DLC (S.D.N.Y.); and NCUA v. Wachovia Capital Markets, LLC, No. 13-cv6719-DLC (S.D.N.Y.). For the sake of consistency, and because all of the parties agree that at least some
degree of coordination is important across these similar actions, this Protective Order follows the form of
protective orders agreed to by parties in the Central District of California cases and in the Southern
District of New York cases. The parties reserve the right to move for a single protective order governing
all or some of NCUA’s RMBS actions across the three districts, following the Tenth Circuit’s decision in
NCUA v. Barclays Capital, Inc., No. 12-2631 and the Judicial Panel of Multi-District Litigation’s
decision on Defendants’ motion to transfer some of the similar actions pursuant to 28 U.S.C. 1407.

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2.6

Confidential Material: any Producing Party (as defined below) may, subject to the

provisions of this Order, designate as “Confidential” any Discovery Material that the Producing
Party reasonably and in good faith believes constitutes and reveals confidential trade secrets,
proprietary business information, non-public personal, client or customer information concerning
individuals or other entities (including, but not limited to, name, Social Security numbers, home
telephone numbers and addresses, tax returns, and medical, investment, credit and banking
information).
2.7

Highly Confidential Material: any Producing Party may, subject to the provisions

of this Order, designate any Discovery Material as “Highly Confidential” if the Producing Party
reasonably and in good faith believes the Discovery Material contains (i) trade secrets or other
information that the Producing Party reasonably believes would result in competitive,
commercial or financial harm to the Producing Party or its personnel, clients or customers; or (ii)
material that a Producing Party believes in good faith would not otherwise be adequately
protected under the procedures set forth herein for Confidential Material.
2.8

Non-Party Borrower Information: for purposes of this Order, Non-Party Borrower

Information shall mean any information that constitutes “nonpublic personal information” within
the meaning of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6802, et seq. and its implementing
regulations, including, but not limited to, any portion of a mortgage loan file, spreadsheet or
other document or data set that includes financial or credit information for any person (including
any credit history, report or score obtained on any such person to determine the individual’s
eligibility for credit) together with personally identifiable information with respect to such
person, including, but not limited to, name, address, Social Security number, loan number,
telephone number, or place or position of work. As set forth in Section 18, this Order authorizes
the disclosure of such Non-Party Borrower Information in the Actions.
2.9

Producing Party: any Party or Non-Party that produces Discovery Material in the

Actions.
2.10

Receiving Party: any Party or Non-Party that receives Discovery Material from a

Producing Party.
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2.11

Designating Party: any Party or Non-Party that designates Discovery Material it

produces as “Confidential” or “Highly Confidential.”
2.12

Protected Material: any Discovery Material that is designated as “Confidential” or

“Highly Confidential”; provided, however, that “Protected Material” does not include
information that is publicly available (except information that became publicly available as a
result of a breach of this Order or any other confidentiality agreement or undertaking).
2.13

Outside Counsel: attorneys, along with their paralegals and other support

personnel assisting with the Actions, who are not employees of a Party but who are retained to
represent or advise a Party in the Actions.
2.14

In House Legal Personnel: attorneys and other personnel employed by a Party to

perform legal functions who are directly involved in the prosecution or defense of the Actions
for the Party.
2.15

Counsel (without qualifier): Outside Counsel and In House Legal Personnel (as

well as their support staffs, including but not limited to attorneys, paralegals, secretaries, and law
clerks).
2.16

Expert and/or Consultant: a person with specialized knowledge or experience in a

matter pertinent to the Actions, along with his or her employees and support personnel, who has
been retained by a Party, or its Counsel, to serve as a testifying or consulting expert in the
Actions, and who is not currently an employee of a Party and who, at the time of retention, is not
anticipated to become an employee of a Party. This definition includes a professional jury or
trial consultant retained in connection with the Actions.
2.17

Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, or processing data in any form or medium) and their employees and subcontractors.
3. SCOPE
The protections conferred by this Order cover not only Protected Material (as defined
above), but also any information copied or extracted therefrom; as well as all copies, excerpts,
summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or
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Counsel in settings that might reveal Protected Material. However, this Order shall not be
construed to cause any Counsel to produce, return, and/or destroy their own attorney work
product, or the work product of their co-counsel, created in anticipation of or in connection with
the Actions.
4. DURATION
The confidentiality obligations imposed by this Order shall remain in effect until the
Designating Party agrees otherwise in writing or until this Court orders otherwise.
5. DESIGNATING PROTECTED MATERIAL
5.1

Designating Bulk Material for Protection: In order to expedite production of

voluminous materials, a Designating Party may, at its sole option, but is not required to, produce
materials without a detailed review, subject to the “clawback” procedures in this Order (Section
12) or otherwise agreed to. In doing so, the Designating Party may designate those collections of
documents that by their nature contain Confidential or Highly Confidential Material with the
appropriate designation notwithstanding that some of the documents within the collection may
not qualify for such designation. The materials that may be so designated shall be limited to
documents consisting of or containing Non-Party Borrower Information, underwriting
guidelines, loan origination files, loan servicing files, materials reflecting due diligence on loans
at issue in the Actions, or such other categories as the Parties agree to in writing or the court
orders. Notwithstanding the foregoing, a Receiving Party may at any time challenge the
designation of one or more particular documents on the grounds that it or they does not or do not
qualify for protection, or does not or do not qualify for the level of protection initially asserted.
If the Designating Party agrees, it must promptly notify all Receiving Parties that it is
withdrawing or changing the designation.
5.2

Manner and Timing of Designations: Except as otherwise provided in this Order

or as otherwise stipulated by the Parties, any Party may designate as “Confidential” or “Highly
Confidential” any Discovery Material, or any portion thereof:
(a)

In the case of documents produced by a Party, designation shall be made

either by notation on the document, by notation in the filename and/or metadata, or by
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written notice to counsel for the Parties hereto if the aforementioned forms of designation
are infeasible.
(b)

In the case of documents produced by a Non-Party, designation shall be

made by a Party or the Producing Party by notifying all counsel in writing of those
documents which are to be stamped or otherwise treated as such at any time up to thirty
(30) calendar days after actual receipt of copies of those documents by counsel for the
Receiving Party. Prior to the expiration of that 30-day period (or until a designation is
made, if such a designation is made in a shorter period of time), all such Discovery
Material shall be treated as Confidential Material.
(c)

In the case of testimony, designation shall be made by notifying all

counsel of those portions which are to be stamped or otherwise treated as such either by
statement on the record of the deposition or in writing at any time up to thirty (30)
calendar days after the transcript is made available to the Designating Party. Prior to the
expiration of that 30-day period (or until a designation is made, if such a designation is
made in a shorter period of time), all such Discovery Material shall be treated as Highly
Confidential Material. Notwithstanding the preceding language in this paragraph, in the
event that (i) a document produced and designated by a Non-Party as “Confidential” or
“Highly Confidential” is used as an exhibit in a deposition and (ii) counsel for the NonParty is not present at the deposition, the Parties agree that the exhibit remains designated
“Confidential” or “Highly Confidential” and that any testimony concerning the exhibit
shall be deemed to have been designated in writing as “Confidential” or “Highly
Confidential”, as is required in this paragraph.
(d)

In the case of reports created by an expert or consultant relying on or

incorporating Protected Material in whole or in part, designation shall be made by the
Party responsible for its creation by notation on the report.
5.3

Inadvertent Failures to Designate: If a Producing Party discovers that it produced

material that was not designated as Protected Material or that it produced material that was
designated as Protected Material but had designated that Protected Material in the incorrect
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category of Protected Material, the Producing Party shall inform the Receiving Party in writing
within a reasonable time after its discovery. The Receiving Party shall thereafter treat the
information as Protected Material and in the manner required for the designated category of
Protected Material. Promptly after providing such notice, the Producing Party shall provide relabeled copies of the material to each Receiving Party reflecting the change in designation. The
Receiving Party shall make commercially reasonable efforts to delete and replace the incorrectly
designated material, and all copies thereof, with the newly designated material and to destroy the
incorrectly designated material. In addition, to the extent such information may have been
disclosed by the Receiving Party to anyone not authorized to receive Protected Material pursuant
to this Order, the Receiving Party shall make commercially reasonable efforts to retrieve the
information promptly and to avoid any further such disclosure. The failure to advise the
Receiving Party of such inadvertent disclosure within a reasonable time after discovery shall not
constitute a waiver of any designation as Protected Material or an admission by the Producing
Party that such information is not Protected Material.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Written Notice: If a Party elects to challenge a Designating Party’s confidentiality

designation, it must do so in good faith and must begin the process by notifying the Designating
Party in writing of its challenge, including the basis of the challenge, and identifying the
challenged material by production number. The objecting Party and the Designating Party shall
then meet and confer concerning the challenge within 10 days of receipt of the written notice.
6.2

Judicial Intervention: If the Parties are not able to resolve a dispute about a

confidentiality designation during the meet and confer process set forth in Section 6.1, above, the
party challenging the designation may seek relief from the Court. In any judicial proceeding
challenging a confidentiality designation, the burden of persuasion with respect to the propriety
of the confidentiality designation shall remain upon the Designating Party. Until the Court rules
on the dispute, all Parties shall continue to afford the material in question the level of protection
to which it is entitled under the Designating Party’s designation. In the event that the final ruling
is that the challenged material’s designation should be changed, the Designating Party shall
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reproduce copies of all materials with their designations removed or changed in accordance with
the ruling within fifteen (15) calendar days of the ruling.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

A Receiving Party may access or use Discovery Material that is disclosed or

produced by a Producing Party only in connection with the prosecution of, defense of, appeal of,
attempted settlement of, or the enforcement of insurance rights with respect to, the Actions.
Except as required by law, Discovery Material may not be used for any other purpose, including,
without limitation, any business or commercial purpose, contractual repurchase demands, any
purpose related to any other investigation or proceeding, or evaluation of other potential claims
unrelated to the causes of action and transactions at issue in the Actions. Protected Material may
be disclosed only to the categories of persons and under the conditions described in this Order.
Following the termination of the Actions, each Receiving Party must comply with the provisions
of Section 10, below.
7.2

Protected Material must be stored and maintained by a Receiving Party at a

location and in a secure manner that ensures that access is limited to the persons authorized
under this Order. For purposes of this Order, a secure website, or other internet-based document
repository with adequate security, shall be deemed a secure location.
7.3

Disclosure of Confidential Material: Unless otherwise ordered by the Court or

permitted in writing by the Designating Party, material designated “CONFIDENTIAL” may be
disclosed only to the following persons:
(a)

the Receiving Party, including current officers, directors, and employees

to the extent that such disclosure is reasonably necessary for the prosecution or defense of
the Actions;
(b)

the Receiving Party’s Counsel;

(c)

any other Parties to the Actions and their Counsel, including current

officers, directors, and employees to the extent that such disclosure is reasonably
necessary for the prosecution or defense of the Actions;
(d)

former officers, directors, and employees of the Parties, U.S. Central
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Federal Credit Union, Western Corporate Federal Credit Union, and Southwest Corporate
Federal Credit Union, to the extent that such disclosure is reasonably necessary for the
prosecution or defense of the Actions and who have signed the “Agreement To Be Bound
By Protective Order” (Exhibit A);
(e)

Experts and/or Consultants retained by a Party or its Counsel to serve as

an expert witness or as a consultant in the Actions and who have signed the “Agreement
To Be Bound By Protective Order” (Exhibit A), provided that any part of a report created
by such expert or consultant incorporating Protected Material in whole or in part shall be
designated appropriately by the Party responsible for its creation; and provided further
that experts or consultants may not use Protected Material to their competitive advantage
or for any purpose that does not relate to the Actions;
(f)

the Court and its personnel, subject to the requirements of Section 9,

(g)

special masters, mediators, or other third parties who are appointed by the

below;

Court or retained by the Parties for settlement purposes or resolution of discovery or
other disputes and their necessary personnel and, in the case of persons retained by the
Parties, who have signed the “Agreement To Be Bound by Protective Order” (Exhibit A);
(h)

court reporters and/or videographers, their staffs, and Professional

Vendors to the extent that such disclosure is reasonably necessary for the prosecution or
defense of the Actions;
(i)

the author, addressees, or recipients of the document, or any other natural

person who reviewed or had access to such document during his or her employment as a
result of the substantive nature of his or her employment position;
(j)

deponents or persons who have been identified on the trial witness list of

any Party in the Actions, and their Counsel, to the extent that such disclosure is
reasonably necessary for the prosecution or defense of the Actions and who have signed
the “Agreement To Be Bound By Protective Order” (Exhibit A);
(k)

any other person agreed to by the Designating Party in writing; and
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(l)

any other person to whom the Court compels disclosure of the

Confidential Material or to whom disclosure is required by law, subject to the
requirements of Section 15 below.
7.4

Disclosure of Highly Confidential Material: Unless otherwise ordered by the

Court or permitted in writing by the Designating Party, material designated “HIGHLY
CONFIDENTIAL” may be disclosed only to the following persons:
(a)

any person permitted to receive Confidential Material identified in Section

7.3, except that Highly Confidential Material shall not be disclosed, summarized,
described, characterized, or otherwise communicated to (i) any current or former director,
officer, or employee of the Receiving Party other than the Receiving Party’s Counsel, or
(ii) any current or former director, officer, or employee of any other Party to the Actions
other than Counsel for such other Party. Notwithstanding the foregoing, Highly
Confidential Material may be disclosed to (i) those NCUA employees in the Office of the
Board, Office of the Executive Director, Office of Examination & Insurance and Asset
Management and Assistance Center to whom disclosure is necessary for the prosecution
of the Actions, and (ii) up to five subject matter experts at a federal government or
regulatory agency to whom the General Counsel of NCUA or his designee reasonably
and in good faith believes that disclosure is necessary for the prosecution of the Actions,
and, with respect to (ii), have signed the “Agreement To Be Bound By Protective Order”
(Exhibit A) prior to receipt of any Highly Confidential Material. Plaintiff shall provide
any such signed agreement to Defendant within five (5) business days of execution. For
avoidance of doubt, the Parties understand and agree that Highly Confidential Material
shall not be used for business advantage or competitive purposes.
(b)

deponents or persons who have been identified on the trial witness list of

any Party in the Actions, and their Counsel, who have signed the “Agreement to Be
Bound By Protective Order” (Exhibit A),” to the extent that such disclosure is reasonably
necessary for the prosecution or defense of the Actions and;
(c)

any other person to whom the Designating Party agrees to disclose the
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Highly Confidential Material in writing in advance of the disclosure or on the record at a
deposition or Court proceeding in advance of the disclosure;
(d)

any other person to whom the Court compels disclosure of the Highly

Confidential Material or to whom disclosure of the Highly Confidential Material is
required by law, subject to the requirements of Section 15 below.
7.5

Retention of Exhibit A: Outside Counsel for the Party that obtains the signed

“Agreement To Be Bound By Protective Order” (Exhibit A), as required above, shall retain them
for six (6) months following the final termination of the Actions, including any appeals, and shall
make them available to other Parties upon good cause shown.
8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Order, the Receiving
Party must, as soon as reasonably practicable, but in any event, not longer than two (2) business
days after discovery by counsel of record of the disclosure, (a) notify in writing the Designating
Party of the unauthorized disclosures, (b) make reasonable efforts to retrieve all copies of the
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
“Agreement To Be Bound by Protective Order” (Exhibit A). The Parties agree that irreparable
harm would occur in the event of unauthorized disclosure of Protected Material. Accordingly,
the Parties shall be entitled to seek equitable relief, including specific performance, in the event
of any unauthorized disclosure of Protected Material.
9. FILING PROTECTED MATERIAL
In the event a party seeks to file any document containing Confidential or Highly
Confidential Information subject to protection under this Order with the Court, that party must
take appropriate action to insure that the document receives proper protection from public
disclosure including: (a) filing a redacted document with the consent of the party who designated
the document as confidential; (b) where appropriate (e.g., in relation to discovery and evidentiary
motions), submitting the document solely for in camera review; or (c) when the preceding
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measures are inadequate, filing under seal in accordance with D. Kan. Rule 5.4.6. In order to
protect the privacy interests of non-party consumers, as recognized by Congress, authorization is
hereby given to file under seal any document containing “nonpublic personal information,” as
that term is defined in the Gramm-Leach-Bliley Act, 15 U.S.C. § 6809(4).
10. FINAL DISPOSITION
10.1

Except as provided by law or other regulatory authority or unless otherwise

ordered or agreed in writing by the Producing Party, within sixty (60) calendar days after the
final termination of the Actions, including any appeals, each Receiving Party shall undertake
commercially reasonable efforts to return to the Producing Party all Protected Material or, to the
extent it is administratively more efficient, to destroy all Protected Material. In either case, the
Receiving Party shall provide the Designating Party with a certification stating that it has taken
commercially reasonable efforts to destroy or return the Protected Material, except for such
information or material that was transmitted electronically and whose removal or destruction
from a Party’s electronic systems would violate applicable federal or state law, rule or regulation,
or policies and procedures reasonably designed to ensure compliance with such law, rule or
regulation. Information saved on backup media in an electronically stored format will be
certified to have complied with the 60-day destruction period if the Party has a data destruction
policy for the backup media resulting in the eventual destruction or overwriting of the
electronically stored information. If a Receiving Party takes the position that it cannot comply
with the return or destruction provisions of this Section within the 60-day period and that it must
instead retain documents for a longer period of time pursuant to the “[e]xcept as provided by law
or other regulatory authority” provision of this Section, then it must, in its certification, (i) state
the law or other regulatory authority it believes requires it to retain those documents, and (ii)
describe the documents it intends to retain pursuant to that law or regulatory authority.
10.2

Notwithstanding Section 10.1, as to those materials designated as Confidential or

Highly Confidential that constitute Counsel’s work product, and pleadings, motion papers,
deposition transcripts, and exhibits thereto, legal memoranda, and correspondence that were
served in the Actions, or filed with a court, Counsel may retain such documents, even if such
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materials contain Confidential or Highly Confidential Material, if such Counsel otherwise
comply with this Order with respect to such retained material.
10.3

The provisions of this Order shall survive the termination of the Actions and a

Party may seek leave to reopen the case to enforce the provisions of this Order. No part of the
restrictions imposed by this Order may be waived or terminated, except by written stipulation
executed by Outside Counsel of record for each Designating Party or by an Order of the Court
for good cause shown.
11. A DESIGNATING OR PRODUCING PARTY’S USE OF ITS OWN DOCUMENTS
Nothing in this Order shall be construed to limit in any way any Producing Party’s,
Receiving Party’s, or any other person’s use of its own documents, nor shall it affect any
Producing Party’s, Receiving Party’s, or any other person’s subsequent waiver of its own prior
designation with respect to its own Confidential Material or Highly Confidential Material.
12. CLAW-BACK OF PRIVILEGED MATERIAL
12.1

In order to facilitate expeditious production of voluminous documents, a

Producing Party may, at its sole option, but is not required to, produce voluminous materials
without detailed, or any, review to determine whether a privilege or other immunity from
discovery applies to some of the documents. The materials that may be so produced shall be
limited to Non-Party Borrower Information, underwriting guidelines, loan origination files, loan
servicing files, materials reflecting due diligence on loans at issue in the Actions or such other
categories as the Parties agree to in writing or the court orders.
12.2

The inadvertent production of any Discovery Material in this Action shall be

without prejudice to any claim that such material is privileged or protected from disclosure under
the attorney-client privilege, the attorney work product doctrine or any other applicable privilege
or protection (“Privileged Material”), and no Producing Party shall have waived any claims or
arguments under the inadvertent production doctrine. If a Producing Party believes that
Privileged Material was inadvertently produced, the Producing Party may notify the Receiving
Party of the claim and the basis for the material being privileged or protected. After receipt of
such notice, the Receiving Party shall (i) take commercially reasonable steps to locate and
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promptly return, sequester or destroy the original and any copies of the Privileged Material in its
possession, custody or control; provided that the Receiving Party may choose to retain one copy
of such Privileged Material for purposes of objecting to the designation of that material as
privileged or protected; (ii) not use or disclose the Privileged Material until the claim is resolved;
and (iii) take commercially reasonable steps to retrieve the Privileged Material if the Receiving
Party disclosed it before receiving the notice of inadvertent production described in this Section.
The Receiving Party also may notify the Producing Party within fourteen (14) calendar days after
the receipt of the Producing Party’s notification whether it objects to the designation of such
material as Privileged Material. Within seven (7) calendar days after the receipt of such
objection, the Receiving Party and the Producing Party shall meet and confer in an effort to
resolve any disagreement regarding the Producing Party’s designation of the material as
Privileged Material. If the parties cannot resolve their disagreement, the Receiving Party may
promptly present the information to the Court under seal for a determination of the Producing
Party’s claim of privilege or protection. While any such application is pending, the material
subject to that application will be treated as Privileged Material. If the Court determines that such
material is privileged or protected, the Receiving Party shall immediately return or destroy the
remaining copy of such inadvertently disclosed Privileged Material. If the Receiving Party does
not apply to the Court for a ruling on the designation of the inadvertently disclosed material as
Privileged Material within fourteen (14) calendar days after the receipt of the Producing Party’s
notification, the material in question shall be deemed Privileged Material, in which case the
Receiving Party shall immediately return or destroy the remaining copy of such inadvertently
disclosed Privileged Material. In the event of any challenge to the designation of the material as
privileged or protected, the Producing Party shall have the burden of showing that the material at
issue is privileged or protected. If a Party has produced documents in another action,
investigation or other proceeding without detailed, or any, review to determine whether privilege
or other immunity from discovery applies, no Party shall claim that production of those
documents in such other action, investigation, or other proceeding constitutes a waiver of any
privilege or protection with respect to the documents produced. Nothing in this Order shall be
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construed as preventing any party from objecting to the designation of any Discovery Material as
privileged or protected, or from preventing any party from seeking further protection for any
material it produces in discovery.
12.3

If, during a deposition, a Party claims that a document being used in the

deposition (e.g., marked as an exhibit, shown to the witness, or made the subject of examination)
is subject to attorney-client privilege, work product doctrine, and / or any other applicable
privilege or immunity from disclosure, it may at its sole election (a) allow the document to be
used in the deposition without waiver of its claim of privilege or work product protection or (b)
instruct the witness not to answer questions concerning the document pending a prompt
resolution of any disagreement concerning the document’s privileged or work product protected
status. If the Party allows the examination concerning the document to proceed on a non-waiver
basis, the Parties shall sequester all copies of the purportedly privileged or work product
protected document. Immediately following the deposition, the Parties will commence the
procedure outlined in the preceding paragraphs to address the claim of privilege or other
protection, including the notice requirement set forth in Section 12.2. Until the dispute is
resolved, all Parties and any other persons who have access to the transcript of such deposition
shall treat that transcript as Confidential Material. If any party instructs the witness not to
answer questions concerning the document, the Parties will then cooperate in promptly meeting
and conferring, and if necessary submitting the issue of the document’s status to the Court. If the
document is ultimately determined not to be privileged or subject to other protection, the Party or
entity asserting the claim of privilege will be responsible for ensuring that the deposing Party is
given a reasonable opportunity to depose the witness about the document, which in the case of
Party-witnesses (or their current employees) or any former employees of a Party who are
represented by counsel for such Party, shall be within thirty (30) calendar days of said
determination, and in the case of other non-Party witnesses shall be at the earliest practicable
time for the witness and its counsel.
12.4

Except as otherwise provided herein, the provisions of Federal Rule of Evidence

502 shall apply.
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13. USE OF DESIGNATED MATERIAL AT TRIAL
The undersigned agree to meet and confer concerning the use of any Protected Material at
hearings or at the trial of the Actions not fewer than five (5) calendar days prior to any such
hearing or trial. Where a hearing or trial is scheduled on less than five (5) calendar days notice,
the Parties agree to meet and confer as soon as practicable after receiving notice, but in any
event, not fewer than 24 hours in advance of the hearing or trial. The use of Protected Material at
hearings or at trial shall not cause such Protected Material to lose its status as Protected Material.
14. ATTORNEY RENDERING ADVICE
Nothing in this Order will bar or otherwise restrict an attorney from rendering advice to
his or her client with respect to the Actions or from relying upon or generally referring to
Protected Material in rendering such advice; provided, however, that, in rendering such advice or
in otherwise communicating with his or her client, the attorney shall not reveal or disclose the
specific content of Protected Material if such disclosure is not otherwise permitted under this
Order.
15. LEGAL PROCESS
If, at any time, any Protected Material is subpoenaed or requested by any court,
administrative or legislative body, or by any other person or entity, including any governmental
agency or other self-regulatory organization, purporting to have authority to require the
production thereof, the person to whom the subpoena or request is directed, to the extent
permitted by law and the rules, requirements or requests of any relevant governmental or selfregulatory organization, shall promptly give written notice to the Designating Party and include
with such notice a copy of the subpoena or request. Where notice is permitted by law and the
rules, requirements or requests of any relevant governmental or self-regulatory organization, the
person to whom the subpoena or request is directed shall not, absent a Court order to do so or as
otherwise required by law, produce such Protected Material without providing the Designating
party with a reasonable period of time in which to seek to quash, limit or object to the subpoena
or request, or to move for any protection for the Protected Information. For the avoidance of
doubt, nothing herein shall require any Party to ignore or act in contempt of any court order or
16

direction of any governmental entity or other self-regulatory organization.
16. NON-PARTIES
Any Party, in conducting discovery from Non-Parties in connection with the Actions,
shall provide any Non-Party from which it seeks discovery with a copy of this Order and the
“Agreement To Be Bound By Protective Order” (Exhibit A). By signing the “Agreement To Be
Bound By Protective Order”, the Non-Party agrees to be bound by the terms of this Order. If a
Non-Party provides discovery to any Party in connection with the Actions, the provisions of this
Order shall apply to such discovery as if such discovery were being provided by a Party. Under
such circumstances, the Non-Party shall have the same rights and obligations under the Order as
held by the Parties.
17. AMENDMENT OF ORDER
Nothing herein shall preclude any Party from seeking to amend this Order in writing for
good cause shown.
18. DISCLOSURE OF NON-PARTY BORROWER INFORMATION
To the extent any federal or state law or other legal authority governing the disclosure or
use of Non-Party Borrower Information (hereinafter, “Non-Party Borrower Information Law”)
permits disclosure of such information pursuant to an order of a court, this Order shall constitute
compliance with such requirement. To the extent any Non-Party Borrower Information Law
requires a Producing Party and/or Receiving Party to obtain a subpoena, court-ordered or
otherwise, or to give notice to or obtain consent, in any form or manner, from any person or
entity before disclosure of any Non-Party Borrower Information, the Court finds that, in view of
the protections provided for the information disclosed in this Order, the volume of documents to
be produced and the ongoing oversight of the Court, there is good cause to excuse such
requirement, and this Order shall constitute an express direction that the Producing Party and/or
Receiving Party is exempted from obtaining a subpoena, having to notify and/or obtain consent
from any person or entity prior to the disclosure of Non-Party Borrower Information in the
Actions, and/or having to provide a certification that notice has been waived for good cause. To
the extent that any Non-Party Borrower Information Law requires that any person or entity be
17

notified prior to disclosure of Non-Party Borrower Information except where such notice is
prohibited by court order, the Court directs that, in view of the protections provided for the
information disclosed in this Order, the volume of documents to be produced and the ongoing
oversight of the Court, Producing Parties and Receiving Parties are explicitly prohibited from
providing such notice in the Actions; provided, however, that this Order shall not prohibit any
Producing Party and / or Receiving Party from contacting any person or entity for any other
purpose. Any Producing Party or Receiving Party may seek additional orders from this Court
that such party believes may be necessary to comply with any Non-Party Borrower Information
Law.
19. MISCELLANEOUS
19.1

Right to Assert Other Objections: By stipulating to the entry of this Order, no

Producing Party waives any right it otherwise would have to object to disclosing or producing
any information or item on any ground not addressed in this Order. Similarly, no Producing
Party waives any right to object on any ground to the admissibility or use in evidence of any of
the material covered by this Order.

IT IS SO ORDERED.
Dated: January 27, 2014

s/ James P. O’Hara
JAMES P. O’HARA
UNITED STATES MAGISTRATE JUDGE

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WE SO MOVE and agree to abide by the terms of this Order
STUEVE SIEGEL HANSON LLP
/s/ Rachel E. Schwartz
Norman E. Siegel (D. Kan. # 70354)
Rachel E. Schwartz (Kan. # 21782)
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
George A. Zelcs
KOREIN TILLERY LLC
205 North Michigan Avenue, Suite 1950
Chicago, IL 60601
Tel: [phone]
Fax: [phone]
[e-mail]

David C. Frederick
Wan J. Kim
Gregory G. Rapawy
KELLOGG, HUBER, HANSEN, TODD,
EVANS & FIGEL, P.L.L.C.
Sumner Square
1615 M Street, N.W., Suite 400
Washington, DC 20036
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Stephen M. Tillery
Greg G. Gutzler
Michael E. Klenov
505 North Seventh Street, Suite 3600
St. Louis, MO 63101
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiff National Credit Union Administration Board

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WE SO MOVE and agree to abide by the terms of this Order
CRAVATH, SWAINE & MOORE LLP
By: /s/ Michael T. Reynolds____________
Richard W. Clary
Michael T. Reynolds
Lauren A. Moskowitz
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Toby Crouse (Kan. #20030)
James D. Oliver (Kan. #08604)
32 Corporate Woods, Suite 600
9225 Indian Creek Pkwy.
Overland Park, KS 66210-2000
Phone: [phone]
Fax: [phone]
Email: [e-mail]

Attorneys for Defendants Credit Suisse
Securities (USA) LLC and Credit Suisse
First Boston Mortgage Securities Corp.

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EXHIBIT A

Agreement To Be Bound By Protective Order
1.

I have reviewed the Protective Order in NCUA v. Credit Suisse Securities (USA)

LLC, et al., No. 12-cv-2648 - JWL - JPO.
2.

I agree to be bound by the terms of the Protective Order.

3.

I understand that I am subject to sanctions for any violations of the Protective

Order, including but not limited to, being held in contempt of court.

Date

Name