Federal Deposit Insurance Corporation v. Nevada Title Company

Filing 16

ORDER Granting 15 Stipulated Protective Order. Signed by Magistrate Judge George Foley, Jr on 3/24/2015. (Copies have been distributed pursuant to the NEF - DC)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 1 of 13

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R,~N~o~E~Ei L. How~ARn, EsQ.
Nevada Bar No. 006688
SH~on-~o S. S►i~Rn~~~, Esc.
Nevada Bar No. 009688
KOLESAR ~t LEATHAM

400 South Rampart Boulevard, Suite 400
Las Vegas, Nevada 89145
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
ssherman aklnevada.com
Attorneys for Plaintiff
FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for
WASHINGTON MUTUAL BANK

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for
WASHINGTON MUTUAL BANK,

IS

CASE NO. 2:14-cv-01567-GMN-GWF

Plaintiff,

STIPULATED PROTECTIVE
ORDER

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VS.

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NEVADA TITLE COMPANY,a Nevada
corporation,

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Defendants.
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PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are entitled to

1810264(8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 2 of 13

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confidential treatiz~ent under the applicable legal principles. 'l~he parties further acknowledge

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that nothing in this Stipulated Protective Order shall entitle them to file confidential information

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under seal.

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II

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DEFINITIONS

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Challenging, Party: A Party or Non-Party that challenges the designation ol~

information or items under this Order.
B.

"CONFIDENTIAL" Information or Items: Information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
of Civil Procedure 26(c).
C.

Counsel (without qualifier): Outside counsel of Record and House Counsel (as

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well as their support staff.
D.

Desi n~ atin~ Party: A Party or Non-Party that designated information or items

that it produces in disclosures or in responses to discovery as "CONFIDENTIAL."
E.

Disclosure or Discovery Material: All items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced ar generated in disclosures ar

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responses to discovery in this matter.
F.

Expert: A person with specialized knowledge or experience in a matter pertinent

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to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as

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a consultant in this action.

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G.

House Counsel: Attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
H.

Non-Party: Any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
I.

Outside Counsel of Record: Attorneys who are not employees of a party to this

action, but are retained to represent or advise a party to this action and have appeared in this

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1810264(8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 3 of 13

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action nn behalf of that party or are affiliated with a law thin which has appeared on behalf of

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that party.

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Part}: Any party to this action, including all of its ol~hcers, directors. employees,
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consultants, retained experts, and Outside Counsel of~ Record (and their support staffs).
K.

Producing Party: A Party or Non-Party that produces Disclosure or Discovery

Material in this action.
L.

Professional Vendors: Persons or entities that provide litigation support services

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(e.~>., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.
M.

Protected Material: Any Disclosure or Discovery Material that is designated as

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"CONFIDENTIAL."
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Receiving Party: A Party that receives Disclosure or Discovery Material from a

Producing Party.

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The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1)any information copied or extracted from Protected Material;

III
SCOPE AND GOOD CAUSE

19 (2) all copies, excerpts, summaries ar compilations of Protected Material; and (3) any testimony,
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conversations or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the

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following information: (1)any information that is in the public domain at the time of disclosure

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to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving

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Party as a result of publication not involving a violation of this Order, including becoming a part

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of the public record though trial or otherwise; and (2) any information known to the Receiving

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Party prior to this disclosure or obtained by the Receiving Party after the disclosure from a

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source who obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party. Any use of Protected Material at trial shall be governed by a separate

1810264(8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 4 of 13

agreement or order.
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This action involves a contract dispute between the parties relating to mortgage loans.

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and representations made in connection with the valuation and funding of said mortgage loans.

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This litigation will involve the review and analysis of Loan Origination Files, Loan Servicing

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Files, Foreclosure Files, and other Personal Records of individuals who applied for and obtained

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mortgage loans at issue. Good cause exists to grant the parties' request for a Protective Order to

7 (l) preserve the privacy interests of third-party borrowers; (2) protect the confidential business
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records and proprietary information of the plaintiff and defendants; and (3) allow the parties to

7 exchange information in the most expeditious fashion possible, with a minimum burden,
expense, dispute, and delay. Pursuant to 15 U.S.C. § 6802(e)(8), the production of non-public
personal financial information, protected by the measures set out in this Protective Order, shall
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not constitute a violation of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, et seq.; Marks v.

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Global Mortgage Group, Inc., 218 F.R.D. 492, 496(S.D. W.Va. 2003).
III
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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing ar a court

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order otherwise directs. Final disposition shall be deemed to be the later of(1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2)final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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action, including the time limits for filing any motions ar applications for extension of time

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pursuant to applicable law.

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IV

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DESIGNATING PROTECTED MATERIAL

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A.

Exercise of Restraint and Care in Desi ng ating Material for Protection. Each Party

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or Non-Party that designated information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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The Designating Party must designate for protection only those parts of material, documents,

1810264(8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 5 of 13

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items, or oral or written communications that quality — so that other portions of the material,

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documents, items, or commtmications for which protection is not warranted are not s~~~ept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.~,~., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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If it comes to a Designating Party's attention that information or items that it designated

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for protection do not qualify for such protection, such Designating Party must promptly notify all

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other Parties that it is withdrawing the mistaken designation.
B.

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

(see, e.g., second paragraph of Section V(B), below), ar as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
1.

For information in documentary form (e.g., paper or electronic documents,

but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
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Party affix the legend "CONFIDENTIAL" to each page that contains protected material. If only

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a portion or portions of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portions (e.g., by making appropriate markings in the

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margins).

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has indicated

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which material it would like copied and produced. During the inspection and before the

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designation, all

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"CONFIDENTIAL." After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the Producing

1810264(8408-6)

of the

material

made available for inspection

shall

be deemed

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 6 of 13

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Party must af~fi~ the "CONI~IDENT(AL'' legend to each page that contains Protected Material. !1~

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only a portion or portions of~ the material on a page dualities for protection, the Producing Part~~

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also must clearly identity the protection portions (e.~~., by making appropriate markin~,s in the

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margins).

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2.

For testimon~~iven in deposition proceedings, that the Designating Party
=s

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identify on the record, before the close of the deposition, hearing, or other proceedings, all

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protected testimony. This provision does not apply to any court hearings or trial testimony.

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3.

For information produced in some form other than documentary and for

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"CONFIDENTIAL." If only a portion or portions of the information or item warrant protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).

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the container or containers in which the information or item is stored the legend

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any other tangible items, that the Producing Party affix in a prominent place on the exterior of

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C.

Inadvertent failure to Desi~,nate. If timely corrected, an inadvertent failure to

designate qualified information or items does not, standing alone, waive the Designating Party's
right to secure protection under this Order for such material.

Upon timely correction of a

designation, the Receiving Party must make reasonable efforts to assure that the material is
treated in accordance with the provisions of this Order.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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A.

Timing of Challen~. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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B.

Meet and Confer. The Challenging Party shall initiate the dispute resolution

27 ~~ process by providing written notice of each designation it is challenging and describing the basis
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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

1810264(8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 7 of 13

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notice must recite that the challenge to confidentiality is being made in accordance ~~it}7 this

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specific paragraph of the Protective Order. The parties shall attempt to resolve each challen~,e iii

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good faith and must begin the process by coni~erring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of the notice. In

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conferring, the Challenging Party must explain the basis for its beliei~ that the confidentiality

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designation is not proper and must give the Designatinb Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered,

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to explain the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and confer process in

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a timely manner.

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C.

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Judicial Intervention. If the Parties cannot resolve a challenge without court

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2l days of the initial notice of challenge or within 14 days of the parties agreeing that the meet

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and confer process will not resolve their dispute, whichever is earlier.

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intervention, the Designating Party shall the and serve a motion to retain confidentiality within

In addition, the

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Challenging Party may file a motion challenging a confidentiality designation at any time if there

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is good cause for doing so, including a challenge to the designation of a deposition transcript or

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any portions thereof.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party's

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designation until the Court rules on the challenge.

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1810264 (8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 8 of 13

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V1

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ACCESS TO AND USE OF PROTECTED MATERIAL

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A.

Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or produced by another Party or by a Non-Party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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Section X(D) below (Final Disposition).

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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.
B.

Disclosure of "CONFIDENTIAL" Information or Items.

Unless otherwise

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ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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disclose any information or item designated "CONFIDENTIAL" only to:
a.

information for this litigation;
b.

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the Receiving Party's Outside Counsel of Record in this action, as well as

the officers, directors and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation;

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c.

Experts (as defined in this Order) of the Receiving Party to whom

is reasonably

necessary for this

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disclosure

litigation

and

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"Acknowledgement and Agreement to Be Bound" that is attached hereto as Exhibit A;

who have signed

the

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d.

the Court and its personnel;

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e.

court reporters and their staff, professional jury or trial consultants, mock

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jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the "Acknowledgement and Agreement to Be Bound"(Exhibit A);

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f.

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound"

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(Exhibit A) unless otherwise agreed by the Designating Party or ordered by the Court. Pages of

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Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 9 of 13

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transcribed deposition testimony or exhibits that may reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except as permitted

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wider this Stipulated Protective Order.

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5

g.

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information.

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VII

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

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9

If a Party is served with a subpoena or a court order issued in other litigation that compels

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disclosure of any information or items designated in this action as "CONFIDF,NTIAL," that

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promptly notify in writing the Designating Party. Such notification shall

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include a copy of the subpoena or court order;

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issue in the other litigation that some or all of the material covered by the subpoena or order is

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b.

subject to this Protective Order. Such notification shall include a copy of this Stipulated
Protective Order; and

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promptly notify in writing the party who caused the subpoena or order to

c.

cooperate with respect to all reasonable procedures sought to be pursued

by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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"CONFIDENTIAL" before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party's permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its confidential material

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and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this action to disobey a lawful directive from another court.

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1810264(8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 10 of 13

VIII
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protecti~~e

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of~ the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the
"Acknowledgement and Agreement to Be Bound" that is attached hereto as Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery
order that provides for production without prior privilege review. Pursuant to Federal Rule of
Evidence 502(d)& (e), insofar as the parties reach an agreement on the effect of disclosure of a

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communication or information covered by the attorney-client privilege or work product
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protection, the parties may incorporate their agreement in the stipulated protective order
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submitted to the court and seek an approval of such incorporation by the Court. No modification
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to this Protective Order will have any force or effect unless and until the Court approves of such
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modification.
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1~
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MISCELLANEOUS
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A.

Right to Further Relief. Nothing in this Order abridges the right of any person to

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seek its modification by the court in the future.
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B.

Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order, no Party waives any right it otherwise would have to object to disclosing or producing

1810264(8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 11 of 13

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any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly. no Party w-awes any right to object on any ground to use in evidence any of the

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material covered by this Stipulated Protective Order.

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C.

Filing Protected Material. Without ~~ritten permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material.

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D.

Final Disposition. Within 30 days after final termination of this case either by

8

consensual dismissal with prejudice, after final appellate review has been obtained, or after the

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time for appeal has lapsed without the filing of an appeal by either of the parties, all material and

10

copies containing information designated CONFIDENTIAL shall be returned to the party

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producing such information, together with any and all summaries, abstracts, notations and

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compilations containing any Confidential Information. In the alternative, within 30 days after

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final termination of this case, such materials and copes may be shredded or disposed of in a

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manner to assure the destruction thereof and declaration certifying such destruction or disposal
shall be provided to the party producing such information. Notwithstanding the above, one copy

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~ 1810264 (8408-6)

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 12 of 13

of the files in this cast may be retained by counsel of record for each party, subject to the terms
of this Order.

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Dated this ~~ day of Tebr~rmy, 20I 5.

Dated this ~1 day of I~

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KOLF.SAIl & LE TN M

WILSON,I;LSi;R, MOSKOWITZ,
F,DF,LMAiV 6c DICKF,R LLP

uary, 20]5.

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RnN~oLr►i L. f lownrzv, L;sQ.
Nevada Bar No. 006688
SHLOMO S. SIIGRMAN, EsQ.
Nevada Bar No. 009688
400 South Rampart E31vd, Suite 400
Las Vegas, Nevada 89145

~~n ui fit. I'i ~Nn:, ~;s~.
Nevada Rar Nn. 008657
L. Jc~i; Cc~rrrrx~r., Lsc~.
Nevada 13ar No. 004954
300 South 1~~>urth Street, I Ith Floor
L~~s Vegas, Nevada 89101

Attorneys for Plaintiff, F.T~.I.C.
as Receiver Cor WnSHINGTON
MUTUAL I3~1NK

Attorneys for Defendant,
NEVADn 'I'I"I'LE COMPnNY

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UNI"['ED STA"1'ES MAGIS"I'RATI: JUllGI;

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Dated:

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1810264 (8408-6)

March 24, 2015

Case 2:14-cv-01567-GMN-GWF Document 15 Filed 03/20/15 Page 13 of 13

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EXHIBIT A

2
ACKNOWLEDGEMENI~ AND AGRELMFNT TO F31: E30i1ND

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I,

[print

or

type

full

[print

or

name,

of

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5

type

full

address], declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protected Order that was issued by the United States District Court for the District ot~

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Nevada on September 24, 2015, in the case of Federul Deposit Insurance Corpo~•a~ron u.s

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Receiver_Jor Washinglon Mutual Bunk, v. Nevndu Tille Company, United States District Court,

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District of Nevada, Case No. 2:14-cv-01567-GMN-GWF.
I agree to comply with and to be bound by all the terms of this Stipulated Protective

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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

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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 Couri for the
District of Nevada for the purpose of enforcing the terms of this Stipulated Protective Order,
even if such enforcement proceedings occur after termination of this action.

Dated:
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City and State where sworn and signed:
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Signature:

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Printed name:

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1810264(8408-6)