Pataky v. Chase Home Finance, LLC

Filing 23

JOINT PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 02/03/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
BRIAN PATAKY,

Civil Action No. 5:13-CV-153-FL
Plaintiff,

vs.

JOINT PROTECTIVE ORDER

J.P. MORGAN CHASE BANK, N.A.
f/k/a CHASE HOME FINANCE, LLC,
Defendants.
Pursuant to F. R. Civ. P. 26, and it appearing that production of documents and other
discovery material, whether formal or informal, is likely to involve the disclosure of confidential
business and financial information, it is hereby STIPULATED AND AGREED by the parties
and ORDERED by the Court:
Need for a Discovery Protective Order
1.

This matter involves the attempt to collect on a discharged debt. The Complaint

alleges one cause of action that Defendant attempted to collect debt in violation of N.C. Gen. Stat. §§
75-51, -53, -54, and -55 by: (1) threatening to foreclose on a second mortgage while simultaneously
agreeing to a short sale of the property at issue, (2) unreasonably publicizing Plaintiff’s discharged
debt by reporting it to credit reporting agencies as delinquent and “charged off,” (3) deceptively
representing that payment was due for Plaintiff’s discharged debt, and (4) making false reports to
credit reporting agencies in an attempt to coerce Plaintiff into paying the discharged debt. In the
course of discovery, the parties will exchange information and documents that are or may be of a
personal, confidential or proprietary nature, including but not limited to confidential commercial
information, trade secrets, competitively sensitive commercial information, and personal financial
information. Accordingly, the parties have agreed to the entry of this Order in order to facilitate
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discovery by protecting the confidential information that has been or will be produced during
discovery in this case.
Materials Covered
2.

This Protective Order shall apply to all information and materials disclosed during

the course of the above-captioned action, by any party, including but not limited to information
disclosed:
a.

during any informal discovery or production of documents that may occur
through cooperation/agreement of the parties;

b.

during formal discovery;

c.

in any pleading, document, affidavit, interrogatory answer, responses to
requests for admission, brief, motion, transcript, or other writing;

d.

in testimony given in a deposition, and any copies, note, abstracts or
summaries of such information; or

e.

through any manner or means of discovery or disclosure, including entry
onto land or premises and inspection of books, records, documents and
tangible things.

Such information and materials, referred to hereinafter as “Litigation Material,” may include
information in any form, including but not limited to written information or information
otherwise recorded on any medium, including but not limited to paper, photographs, recordings,
and electronic, optical, or magnetic disks or files, including any copies of these materials or
information derived therefrom.
Definition Of Confidentiality
3.

“Confidential” Litigation Material shall include: (a) all Litigation Materials

reflecting, referring to or evidencing proprietary trade secrets, business plans and forecasts,
financial plans and forecasts, operational plans and forecasts, and all sensitive commercial,
financial or personal information which has been designated in good faith as confidential

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pursuant to this Stipulated Protective Order, including but not limited to non-public personal
information subject to regulation by the Gramm Leach Bliley Act of 1999 (“GLB”) and/or by
other state privacy regulations; (b) information of a sensitive nature the public disclosure of
which would damage the personal or organizational interests of the party (or the entity or person
who provided the information to the party) or unreasonably invade the personal privacy of any
individual; (c) information which may be unduly oppressive, embarrassing, or annoying.
Method Of Designation
4.

Any party or non-party may designate as “Confidential” all or any portion of any

Litigation Material as follows:
a.

Any documents or other tangible Litigation Material produced by a party
or non-party may be designated as “Confidential” at any time by either
(i) stamping or writing “Confidential Pursuant to Court Order” on such
material at or before the time of production or (ii) by notifying all other
parties to this agreement in writing of the producing party’s claim of
confidentiality at any time subsequent to the time of production. In order
to provide the parties an adequate opportunity to designate Litigation
Materials as “Confidential,” all Litigation Material produced in this case
shall be deemed “Confidential,” whether or not stamped with an
appropriate legend, for a period of fifteen (15) days following production.
No party shall be held in breach of this Protective Order for disclosing
documents or other tangible Litigation Material to persons unauthorized to
receive Confidential Litigation Material under this Protective Order if
(i) such documents or other tangible Litigation Material have not been
designated as “Confidential” by the producing party and (ii) at least fifteen
(15) days have past since the time such documents or other tangible
Litigation Material were first produced. Once a party receives notice that a
producing party has made a designation of confidentiality, such party shall
treat the designated materials as “Confidential” in accordance with this
Protective Order regardless of how much time has passed since the time
the newly designated materials were first produced.

b.

Deposition or other testimony may be designated as “Confidential” by
stating orally on the record that the information is “Confidential” on the
day the testimony is given.

c.

Where only parts of Litigation Material are claimed to be confidential,
counsel claiming confidentiality shall designate the parts of said Material
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for which confidentiality is claimed, and only those parts shall be subject
to this Protective Order.
Treatment Of “Confidential” Legal Material
5.

Any person responsible for making copies of Confidential Litigation Material

must ensure that the copies adequately reflect the “Confidential” designation.
6.

Litigation Material designated as “Confidential,” including any copies, notes,

abstracts or summaries thereof shall be maintained in confidence by the person to whom such
materials are produced or disclosed, and shall not be disclosed to any person except:
a.
b.

court reporters who record deposition or other testimony in this case;

c.

counsel of record to the parties in the above-captioned litigation, cocounsel of record, and the legal associates, paralegal and clerical or other
support staff who are employed by such counsel and are actually involved
in assisting in the litigation;

d.

parties, and those directors, officers and employees of the parties who are
assisting in the litigation;

e.

experts or consultants retained by the parties or their counsel to assist
counsel to prepare this case for trial, and their support staff who are
employed by such expert or consultants and are actually involved in
assisting in the litigation;

f.

deposition and trial witnesses to whose testimony the materials are
relevant;

g.

7.

the Court;

any other person upon the written agreement of the party or non-party who
produced or disclosed the “Confidential’ information (which written
agreement may be recorded on a deposition or other transcript), or
pursuant to court order.

All persons authorized by this Protective Order to receive information from

Litigation Material designated “Confidential” shall maintain such information as confidential in
accordance with this Protective Order. All Litigation Material shall be used solely for the
purpose of preparing for and conducting the above-captioned action, and no other litigation or
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potential litigation, and neither Litigation Material nor the contents thereof shall be used for any
other purpose, including without limitation any business, commercial or competitive purposes.
8.

All Litigation Material designated “Confidential” shall be kept in secure facilities,

and access to those facilities shall be permitted only to those persons set forth in Paragraph 5
above as persons properly having access thereto.
9.

All persons authorized to receive “Confidential” information under this Protective

Order (other than the Court and court reporters) shall be shown a copy of this Protective Order,
and, if not a lawyer acting as counsel to a party or an employee of such counsel, shall, in a
written and signed Certificate such as that annexed hereto as Appendix A, state that he or she has
read this Protective Order and agrees to be bound by the terms thereof in writing as provided,
within fifteen (15) days of the entry of this Protective Order or prior to receiving any Litigation
Materials, and to return all Litigation Materials to the producing party upon conclusion of this
proceeding. Counsel of record for that party shall then retain the Certificate until the conclusion
of the litigation, and shall make such certificate available to counsel for the producing party if so
ordered by the Court upon a showing of good cause.
Unauthorized Disclosure
10.

In the event that information from Litigation Material designated “Confidential”

is, either advertently or inadvertently, disclosed to someone not authorized to receive such
information under this Protective Order, or if a person so authorized breaches any of his or her
obligations under this Protective Order, counsel of record for the party involved shall promptly
give notice of such unauthorized disclosure or breach, including a full description of the
pertinent facts, to the Court and to counsel of record for the party who initially produced the
Litigation Material. Without prejudice to other rights and remedies of the designating party,

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counsel for the party making the unauthorized disclosure shall make every reasonable effort to
prevent further disclosure by it or by the person who was the recipient of such information.
Breach of the provisions of this Stipulated Protective Order shall be subject to appropriate
sanctions in the discretion of the Court, as authorized by any statute, rule, or inherent power of
the Court.
Use In Court
11.

If Litigation Material designated “Confidential,” or quotes from or references to

such materials, are to be included in documents filed with or otherwise disclosed to the Court,
such papers shall be labeled “Confidential -- Subject To Court Order” and, unless otherwise
agreed by counsel, shall be delivered sealed to the Clerk of the Court and shall not be available
for public inspection. Envelopes used to seal such documents shall bear the notation: “THIS
DOCUMENT CONTAINS CONFIDENTIAL INFORMATION SUBMITTED UNDER SEAL
PURSUANT TO A PROTECTIVE ORDER. THIS ENVELOPE SHALL NOT BE OPENED
UNLESS SO AUTHORIZED AND DIRECTED BY THE COURT. VIOLATION OF THIS
DIRECTIVE MAY BE PUBISHABLE AS CONTEMPT OF COURT.”
12.

Any request to file a document under seal must meet the requirements of Federal

Rule of Civil Procedure 26(c) and the stringent requirements for sealing set out by the Fourth
Circuit. See Stone v. University of Md. Medical System Corp., 855 F.2d 178 (4th Cir. 1988).
Each time a party seeks to file under seal confidential documents, things, and/or information,
said party shall accompany the request with a motion to seal and a supporting memorandum of
law specifying (a) the exact documents, things, and/or information, or portions thereof, for which
filing under seal is requested; (b) where it is necessary for the court to determine the source of
the public's right to access before a request to seal may be evaluated, whether any such request to

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seal seeks to overcome the common law or the First Amendment presumption to access; (c) the
specific qualities of the material at issue which justify sealing such material, taking into account
the balance of competing interests in access; (d) the reasons why alternatives to sealing are
inadequate; and, (e) whether there is consent to the motion. Finally, in addition to the motion and
supporting memorandum, said party must set out such findings in a proposed order to seal for the
court.
Use In Depositions
13.

If any Litigation Material designated “Confidential” pursuant to this Protective

Order is used during the course of a deposition, the portion of the deposition record reflecting
such information shall be stamped “Confidential,” and access thereto shall be limited to the other
terms of this Protective Order.
14.

A deposition witness may be shown “Confidential” materials by an attorney then

conducting the examination of that witness under the following conditions without any waiver of
its confidential status:
a.
b.

a current officer, director or employee of a party may be shown any
document designated as “Confidential” by that party; or

c.

an officer, director or employee of a party or other witness designated by a
party pursuant to Rule 30(b)(6) of the North Carolina Rules of Civil
Procedure may be shown any document designated as confidential by that
party.

d.

15.

any witness may be shown a document in which the witness is identified
as a signatory, author, addressee or recipient of a copy;

an expert who has been engaged by any party to provide testimony in this
proceeding.

The parties retain the right to apply to the Court for relief from the provisions of

Paragraph 13 above in the event that (i) a deposition witness refuses to certify that he or she will

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abide by the terms of this Protective Order and (ii) the use of Litigation Material designated as
“Confidential” pursuant to this Protective Order is necessary for the proper examination of such
witness.
Objections To Confidential Treatment
16.

If any party objects to the designation of any Litigation Material as

“Confidential,” the party shall state the objection with particularity by letter to counsel for the
party making the designation within sixty (60) days after the objecting party receives a copy of
the Litigation Material stamped as confidential or receives notice of the producing party’s claim
of confidentiality, whichever occurs first. If the parties are unable to resolve the objection, any
party may move the Court to remove the particular Litigation Material from confidential
treatment. Until the Court rules on any such motion, the Litigation Material shall continue to be
deemed “Confidential” under the terms of this Protective Order. A party who fails to object to
another party’s claim of confidentiality within the 60 day period set forth immediately above
shall be estopped from later objecting to such confidentiality designation.
Subpoena By Third-Party
17.

If a party in possession of Litigation Material designated “Confidential” receives

a subpoena from a non-party to this Protective Order seeking production or other disclosure of
Confidential Litigation Material, he or she shall immediately give written notice to counsel for
the party or non-party who designated the Litigation Material as “Confidential,” identifying the
material sought and enclosing a copy of the subpoena. Where possible, at least ten (10) days’
notice before production or other disclosure shall be given. In no event shall production or
disclosure be made before notice is given and received.

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18.

The producing party may then notify the subpoenaed party of the producing

party’s intent to intervene to resist the subpoena or order. The producing party must provide
such notification to the subpoenaed party no later than three business days before the response to
the subpoena or order is due unless the subpoenaed party provides notice of the subpoena or
order to the producing party less than five business days before the response to the subpoena or
order is due, in which case the producing party must provide such notification to the subpoenaed
party as soon as reasonably possible but in no event after the time when the response to the
subpoena or order is due.
Should the producing party give notice of such intent, the subpoenaed party shall take
steps reasonable and necessary to withhold production while the motion is pending, provided,
however, that nothing in this Order shall be construed to require a party or person to violate or
refuse to comply with valid orders of any court, or with the rules of procedure of any court.
Conclusion Of Litigation
19.

Within forty-five (45) days of the conclusion of this litigation by settlement or

final judgment, including exhaustion of all appeals, counsel of record for the parties shall use all
best efforts to secure the return of all Litigation Material designated “Confidential” (and all
copies thereof and notes, abstracts or summaries made therefrom) from all persons to whom such
materials were disclosed under the terms of this Protective Order, and shall either destroy all
such materials or return them to counsel for the party or non-party who initially produced the
Confidential Litigation Material (at that party’s or non-party’s option and expense), except that
counsel may retain their work product, copies of court filings and official transcripts and
exhibits, provided said retained documents are kept confidential and will, along with the
information contained therein, continue to be treated as provided herein. The provisions of this

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Protective Order shall not terminate upon the conclusion of this action whether by settlement,
judgment or other disposition, and all appeals therefrom, and the Court will retain jurisdiction to
enforce it.
Amendment Of This Agreement
20.

The provisions of this Protective Order may be modified at any time by

stipulation of the parties approved by order of the Court. In addition, a party may at any time
apply to the Court for modification of this Protective Order pursuant to motion brought in
accordance with the rules of the Court. The parties consent to an expedited hearing upon any
such application.
Privileged And Protected Documents
21.

It is the intent of the parties to assert and preserve all information within the

attorney-client privilege or entitled to work product protection. If privileged or protected material
is inadvertently disclosed, such disclosure shall not be deemed a waiver of the privilege or
protection and shall in no way prejudice assertion of the privilege or protection. If a recipient is
notified in writing by a designating party that discovery material was inadvertently produced
containing privileged or protected information, the recipient shall, at the earliest possible
moment but in no event later than forty-eight (48) hours of the written notice, destroy or return
that discovery material to the designating party, together with all copies or reproductions thereof.
The recipient shall also either return to the designating party, or destroy any privileged or
protected work product material derived from the inadvertently produced material. The return of
claimed privileged or protected material shall not in any way waive the recipient’s right to
challenge the claim of privilege or protection, but such challenge shall not (i) be based, in any

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way, on the fact of the inadvertent production or disclosure of such material or (ii) divulge the
contents of the material except to the Court under seal as provided herein.
Reservation Of Rights
22.

Nothing in this Protective Order shall prevent any party from disclosing its own

confidential information to any person as it deems appropriate, and any such disclosure shall not
be deemed a waiver of any party’s rights or obligations under this Protective Order.
23.

Nothing in this Protective Order shall constitute: (i) an agreement by the parties to

produce any documents or supply any information or testimony in discovery not otherwise
agreed upon or required by court order; (ii) a waiver by any person or party of any right to object
to or seek a further protective order with respect to any discovery request in this or any other
action; or (iii) a waiver of any claim of immunity or privilege with regard to any testimony,
documents or information.
24.

Evidence of the existence or non-existence of a designation under this Protective

Order shall not be admissible for any purpose.
Execution in Counterparts
25.

This Protective Order may be executed in two or more counterparts, each of

which shall be deemed an original, but all of which shall constitute one and the same instrument.
Modification
26.

Any party may, at any time and for any reason, seek modification of this

Protective Order. This Protective Order can be modified only by written agreement of the parties
or by Order of the Court.

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3rd
February
SO ORDERED, THIS ______ DAY OF ________________, 2014.

__________________________________
LOUISE W. FLANAGAN
United States District Judge

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APPENDIX A

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
BRIAN PATAKY,

Civil Action No. 5:13-CV-153-FL
Plaintiffs,

vs.

DECLARATION

J.P. MORGAN CHASE BANK, N.A.
f/k/a CHASE HOME FINANCE, LLC,
Defendants.

The undersigned, _____________________________ (print or type name), under penalty
of perjury, hereby acknowledges and declares that I have received a copy of the Confidentiality
Agreement and Protective Order entered in the above-captioned matter and attached hereto, that I
have read and understand its terms, and agree to be bound by its terms.
I hereby submit to the jurisdiction of the United States District Court for the Eastern
District of North Carolina, solely for the purpose of enforcement of the Confidentiality
Agreement and Protective Order entered in this proceeding.
_______________________________
[Sign name]
[Title]
[Employer]
[Business Address]
[Phone]

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