Federal Deposit Insurance Corporation et al v. Bear Stearns Asset Backed Securities I L.L.C. et al

Filing 241

AMENDED STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... So Ordered. (Signed by Magistrate Judge Kevin Nathaniel Fox on 2/3/2021) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FEDERAL DEPOSIT INSURANCE CORPORATION
AS RECEIVER FOR CITIZENS NATIONAL BANK
and RECEIVER FOR STRATEGIC CAPITAL BANK,

No. 12 Civ. 4000 (LTS)(KNF)

Plaintiff,
v.
BEAR STEARNS ASSET BACKED SECURITIES I
LLC; THE BEAR STEARNS COMPANIES LLC.;
J.P. MORGAN SECURITIES LLC.; CITICORP
MORTGAGE SECURITIES, INC.;
CITIMORTGAGE, INC.; CITIGROUP GLOBAL
MARKETS INC.; CREDIT SUISSE FIRST
BOSTON MORTGAGE SECURITIES CORP.;
CREDIT SUISSE MANAGEMENT LLC; CREDIT
SUISSE SECURITIES (USA) LLC; MERRILL
LYNCH MORTGAGE INVESTORS, INC.;
MERRILL LYNCH MORTGAGE CAPITAL INC.;
MERRILL LYNCH, PIERCE, FENNER & SMITH
INC.; ALLY SECURITIES, LLC; DEUTSCHE
BANK SECURITIES INC.; HSBC SECURITIES
(USA) INC.; RBS SECURITIES INC.; and UBS
SECURITIES LLC,
Defendants.

AMENDED STIPULATION AND PROTECTIVE ORDER
In the interest of efficiency and judicial economy, particularly in the interest of
avoiding ancillary litigation over discovery issues relating to confidential material or the
inadvertent production of privileged material, Plaintiff the Federal Deposit Insurance
Corporation as Receiver for Citizens National Bank and as Receiver for Strategic Capital Bank
(the “FDIC-R”) and Defendants Credit Suisse First Boston Mortgage Securities Corp., Credit
Suisse Management LLC, Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc.,

HSBC Securities (USA) Inc., NatWest Markets Securities Inc. (f/k/a RBS Securities Inc.), and
UBS Securities LLC (collectively, “Defendants” and together with the FDIC-R, the “Parties” and
each is a “party”), hereby stipulate and agree to this Order and the procedures set forth herein for
designating and protecting confidential and highly confidential material and for addressing the
inadvertent production of Privileged Material, as defined. The Parties respectfully request that
the Court enter an Order approving the same.
CONFIDENTIALITY
1.

This Order shall apply to and govern all material that a disclosing party designates

as confidential or highly confidential during discovery in the above-captioned action. This
includes deposition testimony, documents produced in response to requests for production of
documents, answers to interrogatories, responses to requests for admissions, subpoenas and all
other discovery in any form. This also includes testimony or other communications that might
reveal confidential or highly confidential discovery material. However, this Order shall not be
construed to cause any counsel to produce, return, and/or destroy their own attorney work
product, the work product of their co-counsel, or the work product of any experts, consultants, or
other advisors employed or retained by the Parties or their respective counsel created in
anticipation of or in connection with the above-captioned action.
2.

When used in this Order, the phrase “disclosing party” shall refer to the Parties,

and each of them, to the above-captioned action or to non-parties who give testimony or produce
documents or other material subject to this Order, and the phrase “receiving party” shall refer to
the Parties, and each of them, or to non-parties who receive any such documents or other
material subject to this Order.
3.

When used in this Order, the word “document” encompasses, but is not limited to,
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any type of document or testimony, including all documents or things described in Federal Rule
of Civil Procedure 34, Local Civil Rule 26.3 and Federal Rule of Evidence 1001.
4.

When used in this Order, the word “Banks” shall refer to Citizens National Bank

and Strategic Capital Bank.
5.

As used in this Order, “discovery material” refers to 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 this action.
6.

This Order designates as “confidential” any discovery material that is designated

as such by a disclosing party because the material contains any of the following: confidential,
sensitive, or nonpublic financial information or statements; confidential trade secrets; proprietary
business information, including business plans or records of internal deliberations or decisionmaking; policies and procedures not generally published, including those concerning business
operations, employee benefits and risk management procedures; surveys concerning customers,
competitors and employees; or individual personal information that is protected from disclosure
under state or federal law, including identifying personal information and personal financial
information, about any party, any employee of any party, or any non-party (including, but not
limited to, name, Social Security numbers, home telephone numbers and addresses, tax returns,
and medical, investment, credit and banking information). It is possible that disclosure of this
confidential discovery material may cause harm to the disclosing party and their employees, as
well as to non-parties.

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7.

A disclosing party may designate as confidential any material that is not known to

the general public, including, but not limited to, the following:
(a)

Regulatory Information: material related in any way to the regulation or
supervision of the Banks, in whatever form, whether preliminary or final,
including reports of examination or inspection, regulatory correspondence,
reports, orders, memoranda, or agreements by, from or with the FDIC, the
Office of the Comptroller of the Currency (“OCC”),1 Board of Governors
of the Federal Reserve System, the Office of Financial and Insurance
Regulation (“OFIR”), or any other federal or state regulatory authority,
and any documents containing confidential information obtained from any
documents or records related to the supervision or regulation of the Banks.
The FDIC notes that the release of any such regulatory documents may
require prior approval from other government agencies, including the
Federal Deposit Insurance Corporation in its corporate capacity. To the
extent the FDIC possesses regulatory material of another regulatory
authority that is responsive to a discovery request propounded by any
party and that the FDIC believes may not be lawfully produced without
prior approval of the regulatory authority or entry of a court order, the
FDIC shall promptly seek the other regulatory authority’s consent to
produce the regulatory material and shall promptly notify all parties
whether the regulatory authority does or does not consent. Should any

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With respect to the OCC, this information includes reports of examination, reports of inspection, reports
of visitation, cease and desist orders, enforcement and other orders, supervisory letters, and correspondence
with the OCC concerning regulatory or supervisory matters. Any such material designated as confidential
or highly confidential is referred to herein as OCC Confidential Information.

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party seek a court order compelling disclosure of the regulatory material,
the relevant regulatory authority shall be afforded a reasonable
opportunity to oppose entry of an order. Confidential material also
includes documents that are exempt from disclosure as provided in the
Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), the regulations
governing the disclosure of information, 12 C.F.R. Parts 261 and 309, the
laws of the State of New York, or any other applicable federal or state
laws.
(b)

Information Protected By Law: any information that a disclosing party is
obligated by law to keep confidential, including but not limited to, nonpublic personal information such as Social Security numbers, home
telephone numbers and addresses, tax returns, medical information, credit
information, banking information, documents or data that constitute
“consumer reports,” as that term is defined in the Fair Credit Reporting
Act, 15 U.S.C. § 1681a, and other sensitive personally identifiable
information, other information for which applicable federal or state law
requires confidential treatment, and/or “Nonparty Borrower Information,”
which for purposes of this Order shall mean any information that
constitutes “nonpublic personal information” within the meaning of
Section 509(4) of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6809 and its
implementing regulations, including, but not limited to, any portion of a
mortgage loan file or other document that includes financial or credit
information for any person (including any credit history, report, or score

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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.
(c)

Bank Information: material related to the Banks, or any other bank,
including but not limited to: chargebacks, merchant processing, bank
account information, customer bank records, signature cards, bank
statements, general ledger entries, deposit or reserve information, trading
statements and records, loans and lending transactions, loan applications,
financial statements and credit reports, business and personal state and
federal income tax forms, correspondence, and loan documentation
relating to any extension of credit or loan to any borrower.

(d)

Receivership Information: material related to the receivership of the
Banks, including any information on loss or estimates of such loss on the
Banks’ assets that is not publicly available. Notwithstanding any other
provision of this Order, no confidential material shall be disclosed to any
person or entity known to have any current or prospective interest in such
assets, whether or not that person or entity would otherwise be allowed
access to material under the terms of this Order, except as the Court may
hereafter allow upon a showing of good cause.

(e)

Trade Secret/Proprietary Information: material that the producing party
reasonably believes constitutes, reflects, or discloses trade secrets,
proprietary data or commercially sensitive information.

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(f)

Reproduced Discovery Material: material that is produced in the abovecaptioned action pursuant to an agreement or order requiring reproduction
of discovery material from other litigations or proceedings where such
material was marked or designated confidential (or a similar designation)
in the litigation or proceeding in which such material was originally
produced.

8.

This Order designates as “highly confidential” any discovery material that is

designated as such by a disclosing party because the discovery material contains sensitive,
proprietary, confidential, and/or personal information which a disclosing party in good faith
believes constitutes confidential discovery material but for which “confidential” status may not
provide sufficient protection.
9.

Nothing in paragraphs 7 or 8, or any other provision of this Order, shall constitute

a waiver by Defendants, FDIC, FDIC-R, FDIC-C or FDIC in any other capacity, of any
privilege, doctrine or other objection to production of any Regulatory Information, Information
Protected by Law, Bank Information, Receivership Information, Trade Secret/Propriety
Information, Reproduced Discovery Material or any other information.
10.

A disclosing party shall designate material as confidential or highly confidential

only to the extent that it reasonably and in good faith believes that such material is in fact
confidential or highly confidential.
11.

Any party or nonparty receiving any non-public material from a disclosing party,

regardless of whether such material is designated as confidential or highly confidential, shall use
that material solely for the purpose of conducting or participating in the above-captioned action

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and not for any other purpose whatsoever.2
12.

Except as provided by the express terms of this Order, or as required by law, all

persons subject to this Order shall refrain from disclosing in any manner any information set
forth in any confidential or highly confidential material. However, the transmission of
confidential or highly confidential material between the FDIC-R and the FDIC acting in any
other capacity shall not constitute a violation of this paragraph or of any other provision of this
Order, provided that the transmission or use is for a purpose authorized by paragraph 14 below.
Any confidential material transmitted among various capacities of the FDIC shall remain subject
to this Order and its prohibition on disclosure.
13.

Nothing in this Order shall apply to documents or any portion thereof obtained by

any receiving party on a non-confidential basis from a non-party, provided that if such document
duplicates, in whole or in part, documents produced to the receiving party and designated as
confidential or highly confidential material, and such document was obtained directly or
indirectly by the non-party as a result of discovery from the disclosing party or a party affiliated
with the disclosing party in any litigation or proceeding involving any party or person affiliated
with any party, such documents, or the duplicative portion thereof, shall be treated by the
receiving party as confidential or highly confidential material. Nothing in this paragraph shall be
deemed to relieve any non-party from complying with its obligations under any agreement or
court order that is otherwise applicable to that non-party.
14.

Confidential and highly confidential material shall be subject to the following

restrictions:

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Any party or other person who wishes to use OCC Confidential Information in any other action shall make
a separate application to the Office of the Comptroller of the Currency pursuant to 12 C.F.R. Part 4, Subpart
C.

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(a)

Except as required by law, confidential or highly confidential material
shall be used solely for the purpose of preparing for, and conducting, the
prosecution or defense of the above-captioned action, including any
appeals thereof, and shall not be used by the parties or any other person
for any commercial, business, competitive, or other purpose. Absent
consent from a disclosing party, which shall be given solely in that
disclosing party’s discretion, no confidential or highly confidential
material produced by such disclosing party may be used in connection
with any other litigation, matter, or proceeding.

(b)

Except as required by law, confidential or highly confidential material
shall not be given, shown, made available, or communicated in any way to
anyone except those persons specified in paragraph 15 below to whom it is
reasonably necessary that such confidential or highly confidential material
be given or shown for the purposes permitted under subparagraph (a)
above, and shall not be disclosed by them.

15.

In the absence of written permission from the disclosing party or an order of the

Court, confidential material may only be disclosed, or communicated in any way, to the
following persons:
(a)

Officers or employees of either party who are necessary to aid counsel in
the prosecution or defense of this action.

(b)

The attorneys working on the above-captioned action on behalf of a party,
including attorneys consulting with or advising a party to the abovecaptioned action, in-house attorneys, paralegals, and staff, stenographic

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and clerical employees and contractors working under the direct
supervision of such attorneys and necessary to assist with the abovecaptioned action.
(c)

Persons specially retained by any of the attorneys or parties to this action
to assist in the preparation of this action, including but not limited to
vendors, experts, and consultants, provided that such persons require
access to the confidential or highly confidential material in order to
perform the services for which they have been retained and provided that
each such person signs a written agreement to be bound by this Order in
the form of the annexed hereto as Exhibit A, and provided further that any
part of a report created by such expert or consultant relying on or
incorporating confidential or highly confidential material in whole or in
part shall be designated as confidential or highly confidential by the party
responsible for its creation; and provided further that the experts or
consultants may not use confidential or highly confidential material to
their competitive advantage or for any purpose that does not relate to the
above-captioned action.

(d)

Any fact witness or potential fact witness, including current and/or former
employees or agents of a party, and attorneys for such witnesses, to the
extent reasonably believed by counsel for a party to be necessary in
connection with their testimony or potential testimony in the abovecaptioned action or the preparation for such testimony; provided, however,
that any such individual (i) shall not retain any documents designated as

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confidential or highly confidential and (ii) shall be informed, prior to
being shown materials designated as confidential or highly confidential
that he/she is being shown such materials solely for use in the abovecaptioned action.
(e)

Subpoena recipients only to the extent necessary to permit the subpoena
recipient to locate documents, data, or materials responsive to the
subpoena, provided, however, that the recipient (i) shall not retain any
documents marked as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” and (ii) shall be informed, prior to being shown
materials marked as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” that the recipient is being shown such material solely
for use in the above-captioned action.

(f)

Any other person designated by agreement of the Parties and the
disclosing party, or by order of the Court.

(g)

Court reporters to the extent necessary for them to record testimony at
deposition, trial, or court proceedings.

(h)

The Court and its personnel.

(i)

Arbitrators, mediators or discovery masters (and their support staff)
assisting in the above-captioned action, if any.

16.

Highly confidential material may be disclosed, as described in paragraph 15,

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

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former director, officer, or employee of any other party to the above-captioned action other than
counsel for any Party to the action; or (iii) any current or former director, officer, or employee
of the Banks other than the Banks’ counsel; provided, however, that confidential or highly
confidential material may be disclosed, summarized, described, characterized, or otherwise
communicated to any current or former director, officer, or employee of a receiving party, a
party, Citizens National Bank, or Strategic Capital Bank, if a party or its respective counsel
believes in good faith that the current or former director, officer or employee authored, received
or previously saw the discovery material; and further provided that any discovery material from
the files of Citizens National Bank or Strategic Capital Bank may be disclosed, summarized,
described, characterized or otherwise communicated to any former director officer or employee
of the Banks.
17.

This Court shall retain jurisdiction over this Order, including any proceedings

relating to performance under or compliance with the Order. Individuals or entities who receive
material designated confidential or highly confidential shall be subject to this Order and to the
jurisdiction of this Court concerning this Order.
18.

The recipient of any material designated confidential or highly confidential that is

provided under this Order shall maintain such material in a secure and safe area and shall
exercise the same standard of due and proper care with respect to the storage, custody, use and/or
dissemination of such material as is exercised by the recipient with respect to its own
confidential or highly confidential material. For purposes of this Order, a secure website, or
other internet-based document depository with adequate security, shall be deemed a secure
location. Material designated confidential or highly confidential shall not be copied, reproduced,
summarized, extracted or abstracted, except to the extent that such copying, reproduction,

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summaries, extraction or abstraction is reasonably necessary for the conduct of the abovecaptioned action. All such copies, reproductions, summaries, extractions, and abstractions shall
be subject to the terms of this Order and labeled in the same manner as the designated material
on which they are based.
19.

Disclosing parties shall designate confidential or highly confidential material as

follows:
(a)

In the case of documents produced, interrogatory responses, responses to
requests to admit, and the information contained therein, designation shall
be made by marking or stamping each page as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL” as appropriate, prior to its production or
disclosure to the receiving party. Electronically-stored information
designated as confidential shall be marked or stamped as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” or using means
sufficient: to ensure that every page of such document, when printed,
contains the appropriate mark or stamp, where practicable.
Notwithstanding the foregoing, Excel documents or any other type of
electronically-stored information produced in native format (together,
“Natively-Produced ESI”) need not be produced using a means sufficient
to ensure that every page of such document, when printed, contains the
appropriate mark or stamp. Instead, the disclosing party shall use
reasonable means to designate as confidential such Natively-Produced ESI
including, where applicable and/or practicable, by (a) producing a TIFF
placeholder image corresponding to the Natively-Produced ESI that

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includes the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” mark;
(b) including “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” in the
file name of the Natively-Produced ESI; and (c) including
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” on the label of the
media or in the transmittal email containing the Natively-Produced ESI.
(b)

Any confidential or highly confidential material produced in a non-paper
media (e.g., videotape, audiotape, computer disc) may be designated as
such by labeling the outside of such non-paper media as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” In the event a
receiving party generates any electronic copy, “hard copy,” transcription,
or printout from any such designated non-paper media, such party must
treat each copy, transcription, or printout as confidential or highly
confidential pursuant to the terms of this Order in accordance with the
designation of the produced copy.

(c)

In the event that a disclosing party inadvertently fails to stamp or
otherwise mark material as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” at the time of its production, that disclosing party may
stamp or otherwise mark the material as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL” at any reasonable time thereafter. Material
not marked “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” prior to
its disclosure to a receiving party may be subsequently marked as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” in writing or, if on
the record at a deposition, court hearing, or trial, orally. If the designation

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of material as confidential or highly confidential is made orally, the party
making the designation shall memorialize the designation in writing
within five (5) business days. Upon making such subsequent designation,
the disclosing party shall promptly provide a replacement copy of the
material with the appropriate mark or stamp. To the extent such material
may have been disclosed by the receiving party to anyone not authorized
to receive material designated confidential or highly confidential, the
receiving party shall make reasonable efforts to retrieve the material
promptly and to avoid any further such disclosure. Delay in designating
material as confidential or highly confidential shall not, in and of itself, be
deemed to have effected a waiver of any of the protections of this Order.
Any documents designated as confidential or highly confidential material
prior to entry of this Order shall be treated the same in all respects as
documents designated confidential or highly confidential material
subsequent to the entry of this Order.
(d)

Material designated confidential or highly confidential may be used in
depositions. Designation of the portion of the deposition transcript
(including exhibits) that contains confidential or highly confidential
material shall be made by a statement to such effect on the record in the
course of the deposition or, upon review of such transcript, by the
disclosing party or counsel for the disclosing party whose confidential or
highly confidential material was used at the deposition, which material
shall be so designated within twenty-one (21) days after the transcript of

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the deposition is made available. In the event that (i) confidential or
highly confidential material produced by a non-party is used as an exhibit
in a deposition and (ii) counsel for the non-party is not present at the
deposition, the parties agree that the exhibit and any testimony concerning
the exhibit shall be designated as confidential or highly confidential
accordingly. During the twenty-one (21) days after the transcript of any
deposition becomes available, the entire deposition transcript shall be
treated as confidential or highly confidential to the extent that documents
designated as confidential or highly confidential are marked as exhibits at
the deposition or any testimony is designated confidential or highly
confidential in the course of the deposition. The cover of each deposition
transcript that contains confidential information shall bear the following
legend: “THIS DEPOSITION TRANSCRIPT CONTAINS
CONFIDENTIAL INFORMATION SUBJECT TO A PROTECTIVE
ORDER.” The cover of each deposition transcript that contains highly
confidential information shall bear the following legend: “THIS
DEPOSITION TRANSCRIPT CONTAINS HIGHLY CONFIDENTIAL
INFORMATION SUBJECT TO A PROTECTIVE ORDER.”
(e)

For reports created by an expert or consultant relying on or incorporating
confidential or highly confidential discovery material in whole or in part
the party responsible for its creation shall include the confidentiality
designation (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”) on
the report.

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(f)

For jury trial: Any party offering any OCC Confidential Information into
evidence shall offer only those pages, or portions thereof, that are relevant
and material to the issues to be decided in the action and shall block out
any portion of any page that contains information not relevant or material.
Furthermore, the name of any person or entity contained on any page of
the OCC Confidential Information who is not a party to this action, or
whose name is not otherwise relevant or material to the action, shall be
blocked out prior to the admission of such page into evidence. Any
disagreement regarding what portion of any page that should be blocked
out in this manner shall be resolved by the Court in camera, and the Court
shall decide its admissibility into evidence.

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20.

Nonparty Borrower Information Designation:
(a)

Any party (including non-parties) producing materials through discovery
may designate loan files, servicing records, or related documents that it
discloses during discovery in the action, including, but not limited to, the
Nonparty Borrower Information contained therein, as confidential or
highly confidential material, as appropriate, because the materials
constitute, contain, reveal, or evidence “non-public personal information.”

(b)

Any party (including non-parties) receiving non-public personal
information consisting of, derived from, or related to loan files or
servicing records produced in discovery, regardless of whether such
material is designated with the appropriate designation, shall use that
material solely for the purpose of conducting this litigation.
Notwithstanding the foregoing, nothing in this Order shall require any
receiving party to disregard or violate any order, direction, or regulatory
requirement of any governmental authority.

(c)

In order to expedite production of loan files and servicing records, a
disclosing party may, at its sole option, produce materials without a
detailed or any review, subject to the “clawback” procedures in this Order,
as set forth in paragraphs 37-42, or as otherwise agreed to. In doing so,
the disclosing party may designate the contents of loan files, servicing
records, or related documents that by their nature contain Nonparty
Borrower Information with the appropriate designation even if some of the
documents in the collection may not, considered individually, qualify for

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such designation.
(d)

The disclosing party shall designate Nonparty Borrower Information
material as follows:
i.

In the case of information in documentary form, the disclosing

party shall designate the documents as confidential material in the manner
described above in paragraph 19, except that bulk productions may be
designated as set forth in Paragraph 20(d)(iii).
ii.

Nonparty Borrower Information may be used in depositions. The

Party using such information in a deposition should designate any portion
of the deposition testimony discussing such information as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to the
procedure outlined in paragraph 19.
iii.

Any Nonparty Borrower Information produced in a non-paper

media (e.g., computer disks or drives) and/or bulk productions in native
format or without Bates numbers may be designated confidential by
affixing the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
in a prominent place on the exterior of the container in which the
information is stored and/or on the first page of a document and/or on the
relevant page(s) of the document. In the event a receiving party generates
any electronic copy, hard copy, transcription, or printout from any such
designated non-paper media, that receiving party must treat each copy,
transcription, or printout as confidential pursuant to the terms of this
Order.

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21.

A party may designate as confidential or highly confidential material produced by

the disclosing party without a designation of confidential or highly confidential provided that
such document or information contains the designating party’s own confidential or highly
confidential material. Such designations shall be accomplished by providing written notice to all
parties identifying (by Bates number, transcript line and page number, or other individually
identifiable information) the document, testimony, or other material being designated. Promptly
after providing such notice, the designating party shall provide re-labeled copies of the material
to each receiving party reflecting the new designation. The receiving party will replace the
originally designated material with the newly designated material and will destroy the originally
designated material.
22.

Nothing in this Order shall be taken as indicating that any material is in fact

confidential or highly confidential or entitled to confidential or highly confidential treatment. No
party shall be obligated to challenge the propriety of a confidential or highly confidential
designation at the time made, and a failure to do so shall not preclude a subsequent challenge
thereto, nor shall a party that has designated materials as confidential or highly confidential
contend that any delay by another party in objecting to the designating party’s confidential or
highly confidential designation in any way (a) lends support to the designating party’s
confidential or highly confidential designation or (b) invalidates or diminishes in any way the
objecting party’s challenge of the confidential or highly confidential designation for any such
materials. In the event that any party disagrees at any stage of these proceedings with such
designation, counsel for such party shall notify counsel for the disclosing party in writing (the
“Notice”). The objecting party shall identify each particular document or other material bearing
a designation to which it objects and shall specify the reason(s) for the objection. Within seven

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(7) calendar days of the receipt of the Notice, counsel for the parties (and any nonparty involved)
shall promptly schedule and hold a meet-and-confer to attempt to resolve the dispute on an
informal basis. If the dispute cannot be resolved, the objecting party may request from the Court
any relief that it deems appropriate (which shall have first been raised no later than during the
parties’ meet and confer). In the event of a dispute, the designating party shall have the burden
of establishing that the material in question is confidential or highly confidential. The material in
question shall retain its confidential or highly confidential status until the Court rules on any
such motion. The objecting party may request a telephonic hearing with respect to the
confidential or highly confidential status of material. Notwithstanding any other provision of
this Order, no party shall challenge in any way any confidentiality designation placed on
Reproduced Discovery Material if such designation was previously challenged and upheld in the
matter in which it was originally produced. With respect to Reproduced Discovery Material that
is subsequently designated confidential (or any similar designation) in the litigation or
proceedings in which such Reproduced Discovery Material was originally produced, the
disclosing party shall promptly notify any receiving party of such subsequent designation. In
such case, within fourteen (14) days of such subsequent designation, the Producing Person shall
provide the Receiving Person with corrected copies of such Reproduced Discovery Material,
bearing the subsequently designated confidentiality designation. If any person challenges any
confidentiality designation placed on Reproduced Discovery Material, the Parties should
cooperate to accommodate the terms of the protective order or confidentiality stipulation that
governed in the litigation or proceeding in which such Reproduced Discovery material was
originally produced, but the Court will ultimately apply this Order to Confidential or Highly
Confidential discovery material produced in this action.

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23.

Without written permission from the designating party or a court order secured

after appropriate notice to all interested persons, a party may not file in the public record in the
above-captioned action any material designated as confidential or highly confidential.
Documents containing material designated as confidential or highly confidential shall not be
filed with the Court unless the filing party reasonably believes it is necessary to do so for
purposes of trial, motions (including without limitation, motions for summary judgment) or other
court matters. Any party that seeks to file any material designated as confidential or highly
confidential must file a motion to seal, identifying (by Bates number) any material designated as
confidential or highly confidential that any party wishes to file under seal, and comply with the
provisions for filing materials under seal contained in any local rules. If the court denies the
motion to seal, the filing party may file the material identified in the motion in the public record.
The designation of material as confidential or highly confidential shall not constitute evidence as
to whether such material may properly be sealed. A party’s failure to contest a disclosing party’s
designation of material as confidential or highly confidential before the filing of a motion to seal
shall not be deemed an admission by the party who failed to contest the designation that such
material should be filed under seal.
24.

While a motion to seal is pending and before the Court has ruled, neither party

shall make use in open court of any material that is subject to that motion to seal without the
consent of the designating party or the permission of the Court.
25.

If a person or party shows confidential or highly confidential material to any

person other than in the manner authorized by this Order, they must promptly in writing, via
overnight delivery or email, and in no event later than three (3) business days from the discovery
of such disclosure bring all pertinent facts relating thereto to the attention of counsel for the

22

disclosing party and, without prejudice to any other rights and remedies of the Parties or nonparties, make reasonable efforts to retrieve the material promptly and to prevent further
dissemination by it or by the person who was the recipient of such material.
26.

If a party has cause to believe that a violation of this Order has occurred or is

about to occur, then that party may petition this or any other proper court for appropriate relief.
To the extent either party feels the protections of the Order are not adequate for particular
confidential or highly confidential material, that party may petition the Court for an appropriate
amendment to this Order.
27.

In the event any receiving party having possession, custody or control of any

material designated as confidential or highly confidential receives a subpoena, order or other
request from a court, administrative or legislative body, or any other person or entity purporting
to have authority to require the production of any confidential or highly confidential material (a
“Third-Party Request”), the receiving party shall to the extent permissible by applicable law and
the rules and requirements of any relevant governmental authority:
(a)

Promptly, and in any event within five business days of receipt of the
Third-Party Request, give written notice to counsel for the designating
party;

(b)

furnish counsel for the designating party with a copy of the subpoena,
request for production of documents, or other process or order; and

(c)

cooperate reasonably with respect to all reasonable and legitimate
procedures sought to be pursued by the designating party.

28.

The designating party asserting the confidential or highly confidential

treatment shall have the burden of defending against such subpoena, process or order. The

23

party receiving the subpoena, request for production of documents, or other process or order
shall be entitled to comply with it except to the extent that the designating party is successful in
obtaining an order modifying or quashing the subpoena, request for production of documents,
or other process or order, provided, however, that the party receiving the subpoena, request for
production of documents, or other process shall await the disposition of any motion to quash or
motion for a protective order timely filed by the disclosing party before producing any material
designated as confidential or highly confidential in response to the subpoena, request for
production of documents, or other process or order to the extent that doing so does not expose
such receiving party to sanctions, an order of contempt or the like; provided, however, that
nothing in this Order shall require any party to disregard or violate any order or direction of
any governmental authority.
29.

At the conclusion of this action, all confidential and highly confidential

material and copies thereof in the possession, custody or control of the parties shall be
either returned to the producing party or destroyed. Each party shall certify to the Office
of the Comptroller of the Currency that the OCC Confidential Information in its
possession, custody or control has been destroyed. Furthermore, pursuant to 12 C.F.R.
4.39(c), counsel for each party shall retrieve any records containing OCC Confidential
Information that that party may have filed with the Court. Pleadings, transcripts, exhibits,
notes, memoranda, correspondence, reports, summaries, and other work product, either
electronic or in hard copy form, in the possession, custody, or control of the parties
referring to, describing, or relating to confidential or highly confidential material, may be
retained by counsel even if such material constitutes or contains confidential or highly
confidential material. Such material retained by counsel shall continue to be subject to
24

the terms and conditions of this Order and shall be destroyed upon the expiration of the
applicable statute of limitation for claims related to that counsel’s representation of the
receiving party.
30.

Except as specifically provided herein, the terms, conditions, and limitations of

this Order shall survive the termination of the above-captioned action.
31.

This Order is without prejudice to the right of any party or nonparty to seek any

other or different confidentiality arrangement or relief from the Court, on notice to all
identifiable potentially affected disclosing parties.
32.

This Order shall not be construed as waiving any right to assert a claim of

privilege, relevance, overbreadth, burdensomeness or other grounds for not producing the
material called for (whether designated as confidential or highly confidential or not) and access
to all material shall be only as provided by the discovery rules and other applicable law.
33.

Neither the taking of nor the failure to take any action to enforce the provisions of

this Order, nor the failure to object to any such action or omission, shall constitute a waiver of
any substantive claim or defense in the trial of, or other proceedings in, the above-captioned
action.
34.

The Parties may jointly seek to amend or modify the Order, subject to Court

approval. Any request for amendment or modification that would permit greater disclosure of
confidential or highly confidential material than permitted hereunder shall be with reasonable
notice to, and an opportunity to be heard by, any non-party that has produced confidential or
highly confidential material to the extent such request for amendment or modification will apply
to confidential or highly confidential material produced by non-parties.
35.

Notwithstanding any provision contained herein, nothing in this Order shall

25

restrict in any way the right of a party to make use of its own discovery material in any way it
deems fit.
36.

Nothing in this Order shall be deemed a waiver of any of the Parties’ rights to

oppose any discovery on any grounds or to object on any grounds to the admission in evidence
of any fact or information.
INADVERTENT PRODUCTION
37.

The production of documents by Parties and by non-parties that produce

documents in the above-captioned action (each a “producing party”) shall, to the maximum
extent permitted by law, be governed by Federal Rule of Civil Procedure 26(b)(5)(B) and
Federal Rule of Evidence 502 regarding the inadvertent production of material protected by the
attorney-client privilege, the work product doctrine, the deliberative process privilege, the bank
examination privilege or any other privilege or protection from disclosure recognized under
applicable law (“Privileged Material”).
38.

The procedure set forth below is intended to provide the producing party or any

other party purporting to hold a privilege with an efficient method for retrieving or “clawing
back” inadvertently produced Privileged Material, subject to any resolution of any dispute over
the privileged or protected status of the Privileged Material, and for foreclosing any arguments of
waiver, subject to the procedures outlined below for bringing disputed claims to the Court for
resolution. In order to allow for expeditious production of voluminous documents, a producing
party may, at its sole option, produce voluminous materials without detailed, or any, review to
determine whether a privilege or other immunity from discovery applies to some of the material,
and such expeditious production shall not be deemed a waiver — in this litigation or in any other
proceeding, including in Federal, State, arbitral, or foreign proceedings — of any applicable

26

privilege, protection or prohibition from disclosure of any Privileged Material if the producing
party otherwise complies with the procedures outlined below for retrieving or “clawing back” the
Privileged Material.
39.

If a producing party, or any other party purporting to hold a privilege, has a good

faith belief that Privileged Material has been inadvertently produced, and at any time notifies the
receiving party in writing that the producing party disclosed Privileged Material (an “Inadvertent
Disclosure Notice”), or any party or non-party receiving Privileged Material discovers such
disclosure (in which case the receiving party shall give the producing party prompt written
notice), then, consistent with Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of
Evidence 502, the inadvertent production of Privileged Material shall not be deemed a waiver —
in the above-captioned action or in any other proceeding, including in Federal, State, arbitral or
foreign proceedings — of the applicable privilege, protection, or prohibition from disclosure.
40.

Upon receipt of any Inadvertent Disclosure Notice claiming that a document is or

includes Privileged Material, the parties (regardless of whether they agree with the claim of
privilege or work-product protection) shall promptly:
(a)

use reasonable efforts to destroy or sequester all copies of the
inadvertently produced material in their possession, custody, or control
and notify the producing party, or any other party purporting to hold a
privilege, within 10 days, that they have done so; and

(b)

take reasonable steps to retrieve and destroy or sequester the inadvertently
produced material from other persons, if any, to whom such material have
been provided consistent with Federal Rule of Civil Procedure

27

26(B)(5)(B), and notify the producing party, within 10 days, that they have
done so.
41.

To the extent a receiving party disputes the claim of privilege or work-product

protection (the “disputing party”), the disputing party shall notify in writing the producing party,
or any other party purporting to hold a privilege, of its position within thirty (30) days of
receiving the Inadvertent Disclosure Notice (a “Dispute Notification”). A party may, upon
showing good cause, submit a Dispute Notification more than thirty (30) days after receiving an
Inadvertent Disclosure Notice. Within seven (7) days of receiving the Dispute Notification, the
producing party, or any other person or entity purporting to hold a privilege, shall either
withdraw its claim of privilege or confer with the disputing party in an effort to resolve their
disagreement. If no such resolution is reached, the disputing party may apply to the Court for a
ruling on the producing party’s claim of privilege. In arguing issues concerning protection for
material claimed to constitute Privileged Material, no party shall assert as a basis for the relief it
seeks (including if a receiving party seeks a ruling that the disclosed information was never
privileged) the fact or circumstance that such documents have already been inadvertently
produced in the above-captioned action or a related action, litigation or proceeding.
42.

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 privilege or work-product protection, the party 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

28

non-waiver basis, the Parties shall sequester all copies of the purportedly-privileged or workproduct 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. Until the dispute is resolved, all Parties shall treat the transcript of such deposition as
highly confidential. If the party instructs the witness not to answer questions concerning the
document, the Parties will then cooperate in promptly submitting the issue of the document’s
status to the Court.
MISCELLANEOUS
43.

To the extent any federal or state law governing the disclosure or use of Nonparty

Borrower Information (hereinafter, "Nonparty Borrower Information Law") permits disclosure of
such information pursuant to an order of a court, upon the Court's execution of this Stipulation,
this Order shall comply with that requirement. To the extent any Nonparty Borrower Information
Law requires a disclosing party to obtain a court-ordered subpoena or give notice to or obtain
consent, in any form or manner, from any person before disclosure of any Nonparty Borrower
Information, the Court finds that, in view of the protections provided for such 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 disclosing party is exempted from obtaining a court-ordered subpoena
or having to notify and/or obtain consent from any person prior to the disclosure of Nonparty
Borrower Information. To the extent that any Nonparty Borrower Information Law requires that
any person be notified prior to disclosure of Nonparty 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

29

oversight of the Court, the parties, including the disclosing parties, are explicitly prohibited from
providing such notice; provided, however, that this Order shall not prohibit any party from
contacting any person or entity for any other purpose. Any disclosing party may seek additional
orders from this Court that such party believes may be necessary to comply with any Nonparty
Borrower Information Law.

30

GRAIS & ELLSWORTH LLP

ORRICK HERRINGTON & SUTCLIFFE
LLP

By: __s/ Vickie Reznik____________
David J. Grais, Esq.
[e-mail]
Vickie Reznik, Esq.
[e-mail]
Kathryn E. Matthews, Esq.
[e-mail]
950 Third Avenue, 24th Floor
New York, New York 10022
(Tel.) 212-755-0100
(Fax) 212-755-0052

By:_s/ Gregory D. Beaman__________
Richard A. Jacobsen, Esq.
[e-mail]
John Ansbro, Esq.
[e-mail]
Paul F. Rugani, Esq.
[e-mail]
Gregory D. Beaman, Esq.
[e-mail]
51 West 52nd Street
New York, New York 10019
Phone: [phone]

YETTER COLEMAN LLP
R. Paul Yetter, Esq.
[e-mail]
Bryce C. Callahan, Esq.
[e-mail]
811 Main Street
Suite 4100
Houston, Texas 77002
(Tel.) 713-632-8000
(Fax) 713-632-8002

Counsel for Defendants Credit Suisse First
Boston Mortgage Securities Corp., Credit
Suisse Management LLC, and Credit Suisse
Securities (USA) LLC
MAYER BROWN LLP
By:___s/ Michael O. Ware___________
Michael O. Ware, Esq.
[e-mail]
1221 Avenue of the Americas
New York, New York 10020
Phone: [phone]

Counsel for Plaintiff the Federal Deposit
Insurance Corporation as Receiver for
Citizens National Bank and Receiver for
Strategic Capital Bank

KING & SPALDING LLP

SIMPSON THACHER & BARTLETT LLP

Andrew Z. Michaelson, Esq.
[e-mail]
Damien Marshall, Esq.
[e-mail]
1185 Avenue of the Americas
New York, NY 10036
Phone: [phone]

By: _s/ Linton Mann III______________
Andrew T. Frankel, Esq.
[e-mail]
Linton Mann III, Esq.
[e-mail]
425 Lexington Avenue
New York, New York 10017
Phone: [phone]

Counsel for Defendant HSBC Securities
(USA), Inc

Counsel for Defendants Deutsche
Bank Securities Inc., NatWest Markets
Securities Inc. (f/k/a RBS Securities Inc.),
and UBS Securities LLC
31

SO ORDERED.
Dated: New York, New York
February 3, 2021
__________________________

32

,,,U.S.M.J
.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FEDERAL DEPOSIT INSURANCE CORPORATION
AS RECEIVER FOR CITIZENS NATIONAL BANK
and RECEIVER FOR STRATEGIC CAPITAL BANK,

No. 12 Civ. 4000 (LTS)(KNF)

Plaintiff,
v.
BEAR STEARNS ASSET BACKED SECURITIES I
LLC; THE BEAR STEARNS COMPANIES LLC.;
J.P. MORGAN SECURITIES LLC.; CITICORP
MORTGAGE SECURITIES, INC.;
CITIMORTGAGE, INC.; CITIGROUP GLOBAL
MARKETS INC.; CREDIT SUISSE FIRST
BOSTON MORTGAGE SECURITIES CORP.;
CREDIT SUISSE MANAGEMENT LLC; CREDIT
SUISSE SECURITIES (USA) LLC; MERRILL
LYNCH MORTGAGE INVESTORS, INC.;
MERRILL LYNCH MORTGAGE CAPITAL INC.;
MERRILL LYNCH, PIERCE, FENNER & SMITH
INC.; ALLY SECURITIES, LLC; DEUTSCHE
BANK SECURITIES INC.; HSBC SECURITIES
(USA) INC.; RBS SECURITIES INC.; and UBS
SECURITIES LLC,
Defendants.
UNDERTAKING
1.

I,_____________________________, declare that:

2.

I have received a copy of the Protective Order (the “Order”) entered by the Court in Federal
Deposit Insurance Corporation As Receiver For Citizens National Bank and Receiver for
Strategic Capital Bank v. Bear Stearns Asset Backed Securities I LLC, et al. (the “Action”). I
have read the Order and understand its provisions.

3. I will comply with all of the provisions of the Order. I will hold in confidence, will not
disclose to anyone other than those persons specifically authorized by the Order, and will not

use for purposes other than for this Action any information designated confidential that I
receive in this Action, except as otherwise permitted under the Order.
4. I represent that I (circle one) do/do not have any known current or prospective interests in
any of the assets of Strategic Capital Bank or Citizens National Bank.
5. I consent to the jurisdiction of the United States District Court for the Southern District of
New York, to resolve any issues with respect to my compliance with the Order.

Dated:_________________

Signature _______________________________