Federal Deposit Insurance Corporation v. Red Hot Corner, LLC et al

Filing 102

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Peggy A. Leen on 6/18/13. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:11-cv-01283-GMN-PAL Document 99 Filed 06/10/13 Page 1 of 11

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MORRIS LAW GROUP
Robert McCoy, Bar No. 9121
Email: [e-mail]
Raleigh Thompson, Bar No. 11296
Email: [e-mail]
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER
FOR IRWIN UNION BANK AND
TRUST COMPANY,
Plaintiff,

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v.
RED HOT CORNER, LLC, a Nevada
Limited Liability Company;
RICHARD M. TAVANO, an
individual; JOSEPH A. KENNEDY,
an individual; ELLEN M.
WOODRUM, an individual, JOHN
G. WOODRUM, an individual,
JOSEPH A. KENNEDY, TRUSTEE
OF THE KENNEDY FAMILY
TRUST, a Nevada Trust, and JOHN
G. WOODRUM and ELLEN M.
WOODRUM, TRUSTEES OF THE
WOODRUM FAMILY TRUST
DATED 9/19/1999, a Nevada Trust,
Defendants.

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Case No. 2:11-cv-01283-GMN-PAL

STIPULATED PROTECTIVE
ORDER

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’FDIC’)
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Plaintiff the Federal Deposit Insurance Corporation ( in

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its capacity as Receiver for Irwin Union Bank and Trust Company (“FDIC

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R”), and defendants Red Hot Corner, LLC; Richard M. Tavano; Joseph A.

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Kennedy, individually and as trustee of the Kennedy Family Trust; and
Ellen M. Woodrum and John G. Woodrum, individually and as trustees of
the Woodrum Family Trust dated 9 / 19 / 1999, stipulate to the following
protective order:

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I.

SCOPE OF PROTECTIVE ORDER

The parties contemplate that in the course of this litigation they
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may produce to one another certain Confidential Documents, as defined
below, or portions of Confidential Documents in their possession. The term

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“Document” is comprehensively defined to be synonymous in meaning and

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equal in scope to the usage of the term in Rule 34(a) of the Federal Rules of

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Civil Procedure, which defines document to include writings, drawings,

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graphs, charts, photographs, phone records, and other data compilations

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from which information can be obtained, including electronically stored

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information. The term “Confidential Documents” shall specifically include,

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but not be limited to:

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A.

Regulatory Information:

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Confidential Documents related in any way to

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the regulation or supervision of Irwin Union Bank and

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Trust Company (“Bank”), in whatever form, whether

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prehmmary or fmal, mcludmg reports of exammation or

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inspection, regulatory correspondence, reports, orders,

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memoranda, or agreements by, from or with the FDIC, the

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Board of Governors of the Federal Reserve System, the
Office of Financial and Insurance Regulation (“OFIR”), or
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any other federal or state regulatory authority, and any

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documents containing confidential or privileged

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information obtained from any documents or records
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related to the supervision or regulation of the Bank. The

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release of any such regulatory documents may require
prior approval from independent government agencies.
No regulatory documents, however obtained, will be
disclosed to anyone other than Defendants and other

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persons or entities identified in paragraph 4 below without
prior approval by the respective regulatory authority or a

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court order. Confidential Documents also include
documents that are privileged, confidential, or exempt

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from disclosure as provided in the Freedom of Information

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Act, 5 U.S.C.

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disclosure of information, 12 C.F.R. Parts 261 and 309, the

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laws of the State of Nevada including, or any other

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applicable federal or state laws.

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B.

§ 552 (“FOIA”), the regulations governing the

Bank and Bank Customer Information:

Confidential Documents related to the Bank, its

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customers, or any tradmg company mvolved m placmg

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orders for commodities futures or options, including but

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not limited to: Automated Clearing House items or

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transactions, chargebacks, merchant processing, bank

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account information, customer bank records, signature

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cards, bank statements, general ledger entries, deposit or

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reserve information, commodity trading statements, loans

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and lending transactions, loan applications, financial

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statements and credit reports, business and personal state
and federal mcome tax forms, correspondence, and loan
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documentation relating to any extension of credit or loan

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to any borrower. Examples of Confidential Documents
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also include, without limitation, documents containing a

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Bank customer’s name, address, social security number,
date of birth, account number, credit card number,
personal identification number, account balance,
information relating to a deposit account, loan or borrower

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relationship, loan application materials, or any other
identifying information.

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c•

Receivership Information:
Confidential Documents related to the FDIC’s

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policies and procedures for receiverships, including but

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not limited to the receivership of the Bank.

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Notwithstanding the provisions of paragraph 4 of this

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Protective Order, no Confidential Documents shall be

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disclosed to any person or entity known to have any

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current or prospective interest in such assets, whether or

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not that person or entity would otherwise be allowed

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access to documents and information under the terms of

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this Order.

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D.

Trade Secret/Proprietary Information:

Documents and information that the producing

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party reasonably believes constitute, reflect, or disclose

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trade secrets, proprietary data or commercially sensitive

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information.

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Irrespective of any confidential designation by a producing

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party, this Protective Order shall not apply to any documents independently

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obtained from a non-party on an unrestricted basis.

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II.

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MANNER OF DESIGNATION
The parties shall designate Confidential Documents by stamping

or otherwise marking them with the legend “Confidential Documents
Subject to Protective Order” or similar language. Any document marked in
this manner by either party shall be subject to this Order.
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III.

DISCLOSURE OF CONFIDENTIAL DOCUMENTS PROHIBITED

Confidential Documents shall be used only for the purpose of
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this action and for no other purpose. Except as provided by the express
terms of this Protective Order, all persons subject to this Order shall refrain

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from disclosing in any manner any information set forth in any Confidential

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Documents. The transmission of Confidential Documents between the FDIC

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in its capacity as Receiver for the Bank and the FDIC acting in any other

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capacity shall not constitute disclosure for purposes of this Order. Any such

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Confidential Documents transmitted among various capacities of the FDIC

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shall remain subject to this Order and its prohibition on disclosure.

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IV.

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EXCEPTIONS TO PROHIBITION ON DISCLOSURE

Counsel for a party to this action may disclose Confidential

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Documents to the followmg persons, to the limited extent such disclosure is

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necessary, under the following specified circumstances:

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1.

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assisting counsel in the prosecution or defense of this action to

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the extent necessary for such assistance (including, but not

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limited to, the parties’ attorneys, investigators, paralegals and

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other employees);

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2.

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that issued any insurance policy under which Defendants

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are an insured (including, but not limited to, the Board of

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Directors, in-house attorneys, outside attorneys,
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Officers or employees of any party in this action who are

Personnel of or counsel to any msurance company

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investigators, experts, consultants, senior executives, and

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employees of any such insurance company) conducting,
assisting, monitoring, reviewing, or making
determinations with regard or related to the litigation,
provided that each such person signs a written agreement

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to be bound by this Order in the form attached as Exhibit
A; and reinsurers, auditors, or regulators to which any

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such insurance company is required to respond or report
in the ordinary course of business regarding the subject

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matter of this litigation, but only so long as such persons or

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entities are already subject to substantially similar

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confidentiality obligations;

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3.

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or authorized by law to review materials that may include

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Confidential Material; (ii) persons to whom the

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information is required to be made available under FOJA

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or the FDIC’s FOIA regulations, 12 C.F.R. 309.5, upon

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receipt of a proper FOIA request for such information; and

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(iii) individuals and entities permitted access to exempt

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information under 12 C.F.R. 309.6;

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4.

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parties to this action to assist in the preparation of this

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action, including but not limited to vendors, experts,

As to the FDIC-R: (i) auditors or examiners required

Persons specially retained by any of the attorneys or

consultants, mediators and arbitrators, provided that such
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persons require access to the Confidential Documents or

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information in order to perform the services for which they
have been retamed and provided that each such person

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signs a written agreement to be bound by this Order in the

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form attached as Exhibit A;
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Any person of whom testimony is to be taken in this

litigation, provided that such a person may only be shown
Confidential Documents to the extent necessary for such
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testimony and provided that such person is apprised of the
confidential nature of the documents pursuant to

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Paragraph 5, below; and
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record testimony at deposition, trial, or court proceedings.
V.

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Court reporters to the extent necessary for them to

COUNSEL’S OBLIGATION TO INFORM
Prior to disclosing Confidential Documents to any person

pursuant to paragraphs 4(a)-(e), counsel shall:

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1.

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documents;

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2.

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Order, has restricted the use of such documents; and

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3.

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informing him of the contents of this Paragraph.

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VI.

Apprise that person of the confidential nature of the
Apprise that person that this Court, pursuant to this
Show that person a copy of this Order, specifically

NON-WAIVER OF PRIVILEGE; INADVERTENT DISCLOSURE
By agreemg to the procedures m this Order, the parties do not
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waive any legal right or privilege applicable to either the Confidential
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Documents or to any other request of, or discovery procedure available to,

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the parties to this action. Further, inadvertent disclosure of any privileged

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document in the course of discovery in this action shall not constitute

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waiver of any applicable legal right or privilege. In the case of any such

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inadvertent disclosure of privileged documents, the receiving party shall,
immediately upon becommg aware of the disclosure, or,
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if

unaware of

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disclosure, within five (5) business days of receipt of a written request by the

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producing party, return the original to the producing party, destroy all
copies thereof, as well as all notes, memoranda or other documents that
summarize, discuss, or quote the document, and delete any copy of the
document, or any portion thereof, from any word processing database, tape,

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or disk the receiving party maintains. Return of a document over which the
producing party has asserted a claim of privilege, protection, or immunity

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under this paragraph shall be without prejudice to the receiving party’s right
to seek an order from the Court directing the production of the document on

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the ground that the claimed privilege, protection, or immunity is invalid or

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inapplicable; provided, however, that mere production of the document or

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information in the course of this action shall not constitute grounds for

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asserting waiver of the privilege, protection, or immunity.

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VII. CONFIDENTIAL DOCUMENTS TO BE FILED UNDER SEAL

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In the event counsel for any of the parties wishes to file or

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motions, briefs or any other papers or oral communication containing or

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making reference to such document or information), counsel shall file the

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appropriate motion to seal in accordance with the procedures outlined in the

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edited by
court.

submit to this Court any Confidential Documents (by way of pleadings,

Local Rules for the District of Nevada, including Local Rule 10.5 and Special
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Order No. 108, and the party must seek leave of court before filmg any
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Confidential Documents.

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VIII. OBJECTIONS TO CONFIDENTIAL DESIGNATION

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If any party objects to the designation of a particular document

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as confidential, the objecting party shall give written notice of its objection to

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the designating party. If, within ten (10) days from receipt of written notice,

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the parties have not reached an agreement concerning confidential status of

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the documents, the objecting party may apply to the Court for a ruling that
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the documents not be considered confidential and be deemed not subject to

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this Order. Until such time as the Court has ruled on the objecting party’s
application, all parties shall continue to treat the document as confidential
pursuant to the terms of this Order. In any event, no confidential document
or information shall lose its confidential status through its use in connection

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with any dispute over its confidential status, and the parties shall take all
steps reasonably necessary to protect the confidentiality of such document
during its use.
IX.

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VIOLATION OF THIS ORDER
If a party has cause to believe that a violation of this Order has

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occurred or is about to occur, that party may petition this or any other

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proper court for appropriate relief. To the extent any party feels the

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protections of this Order are not adequate for particular Confidential

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Documents or information, that party may petition the Court for an

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appropriate amendment to this Order.

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X.

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RETURN OR DESTRUCTION OF CONFIDENTIAL DOCUMENTS
At the conclusion of this action, all Confidential Documents and

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copies thereof in the possession, custody or control of the parties shall be

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either returned to the producing party or destroyed. All notes, memoranda,

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summaries or other documents in the possession, custody or control of the

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parties referring to, describing, or relating to Confidential Documents shall

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be destroyed, except that counsel to each party may retain one copy of

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pleadings, transcripts, exhibits, notes, memoranda, and correspondence

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even if such documents constitute or contain confidential information. Such
material retamed by counsel shall contmue to be subject to the terms and

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conditions of this Protective Order, and shall be returned to the producing
party or be destroyed upon the expiration of the applicable statute of
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limitations for claims related to that counsel’s representation of the receiving

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party.

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XI.

AMENDMENT AND TERMINATION

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This Protective Order shall not be amended, modified, or

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terminated without prior written notice to all counsel or by Order of the

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Court.

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MORRIS LAW GROUP

STEVEN SERLE, P.A.

By /s/ Raleigh Thompson
Robert McCoy
Raleigh Thompson
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Attorneys for Plaintiff

By /s/ Christopher F. Geiger
Christopher F. Geiger, Jr.
5564 S. Ft. Apache Road
Las Vegas, Nevada 89148
Attorneys for Defendants
Ellen M. Woodrum and
John G. Woodrum

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MORAN LAW FIRM, LLC

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By /s/ Jeffrey A. Bendavid
Jeffrey A. Bendavid
630 S. Fourth St., Suite 400
Las Vegas, Nevada 89101
Attorneys for Defendants
Red Hot Corner, LLC; Richard M.
Tavano; Joseph A. Kennedy;
Joseph Kennedy, as the Trustee of the
Kennedy Family Trust
ORDER

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IT IS SO ORDERED.

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UNITED STATES MAGISTRATE JUDGE
DATE

June 18, 2013

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EXHIBIT A
AGREEMENT TO MAINTAIN CONFIDENTIALITY

I have read the Agreed Protective Order issued on
2013, in the action entitled Federal Deposit Insurance
Corporation as Receiver of Irwin Union Bank and Trust Company v. Red Hot
Corner, LLC, et al. (the Order’ a copy of which is annexed to this
),
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Agreement, and agree to abide by its terms. Additionally, I further agree to
consent to the jurisdiction of the United States District Court for the District
of Nevada for the purposes of enforcement of the Protective Order.
Signed:

Date:

Name (Printed):

Telephone:

Company:

Address 1:
Address 2:
City:
State/Zip Code:

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