Roundpoint Mortgage Servicing Corporation v. Five Brothers Mortgage Company Services and Securing, Inc.

Filing 28

CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 6/21/16. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-559-RJC-DCK
ROUNDPOINT MORTGAGE SERVICING
CORPORATION,

)
)
)
Plaintiff,
)
)
v.
)
)
FIVE BROTHERS MORTGAGE COMPANY )
SERVICES AND SECURING, INC.,
)
)
Defendant.
)
)

1.

CONFIDENTIALITY
AGREEMENT AND
PROTECTIVE ORDER

The Parties seek discovery from each other in the following proceeding before the

United States District Court for the Western District of North Carolina: RoundPoint Mortgage
Servicing Corporation v. Five Brothers Mortgage Company Services and Securing, Inc., 3:15-CV00559 (hereinafter referred to as the “Litigation’’).
2.

The Parties are engaged in the process of disclosing information between them,

some of which the Parties believe is highly confidential.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
1.

Definitions:
a.

The term “Discovery Material” shall mean all documents, testimony, or

other information produced, subpoenaed, transcribed, given to, served upon, or filed by any Party
to the Litigation in connection with formal or informal discovery, hearing, or trial proceeding

(whether in the form of initial disclosures, depositions, transcripts, interrogatory answers,
document productions, responses to requests to admit, or other discovery) or in any pleading,
motion, affidavit, declaration, brief, or other document filed with or submitted to the Court.
b.

A “Stamped Confidential Document” means any Discovery Material

which bears the legend (or which shall otherwise have had the legend recorded upon it in a way
that brings its attention to a reasonable examiner) “CONFIDENTIAL” to signify that it contains
information believed to be subject to protection under Rule 26(c)(1) of the Federal Rules of Civil
Procedure.
c.

An “Attorneys’ Eyes Only Document” means any Discovery Material

which bears the legend (or which shall otherwise have had the legend recorded upon it in a way
that brings its attention to a reasonable examiner) “ATTORNEYS’ EYES ONLY” to signify that
it contains information believed to be subject to protection under Rule 26(c)(1) of the Federal
Rules of Civil Procedure.
d.

“Protected Material” means any document subject to the attorney-client

privilege or attorney work product doctrine, Stamped Confidential Document, any Attorneys’ Eyes
Only Document, any excerpt from the foregoing, and any summary containing information
contained in any Stamped Confidential Document or Attorneys’ Eyes Only Document or
deposition that has been designated as confidential, and all physical and electronic copies of the
foregoing (excluding, however, documents or information that have been publicly disclosed by the
Producing Party (as such term is defined below) or that is otherwise generally known or available
to the public other than as a result of a breach of this Confidentiality Agreement & Protective
Order (this “Order”)).

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e.

A “Producing Party” is a Party, or an officer, employee, director,

independent contract or other person designated by a Party, which produces any document in
response to discovery or a subpoena duces tecum propounded by the other Party or who submits
an affidavit or testifies at a deposition conducted in connection with the Litigation.
2.

Non-disclosure of Protected Materials. Except with the prior written consent of

the Party originally designating Discovery Material to be designated as a Stamped Confidential
Document or as Attorneys’ Eyes Only Document, as hereinafter provided under this Order, or as
provided by further order of this Court, none of the Protected Materials may be disclosed to any
person, including any Party to this lawsuit, who has not signed and agreed to be bound by this
Order. Interrogatory answers, responses to requests for admissions, deposition transcripts and
exhibits, pleadings, motions, affidavits, and briefs that quote, summarize, or contain materials
entitled to protection may be accorded status as a “Stamped Confidential Document” or
“Attorneys’ Eyes Only Document,” but to the extent feasible, shall be prepared in such a manner
that the confidential information is bound separately from that not entitled to protection.
3.

Permissible Disclosures - Stamped Confidential Documents. Notwithstanding

Section 2 above, Protected Materials may be disclosed:
a.

to the Parties;

b.

to an attorney for either of the Parties who is actively engaged in the conduct

of this Litigation; to the partners, associates, secretaries, paralegals, and employees of such an
attorney to the extent reasonably necessary to render professional services in the Litigation; to
contractors of a such an attorney who are involved solely in one or more aspects of organizing,
filing, coding, converting, storing, or retrieving data; and to court officials involved in this

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Litigation (including judges, court reporters, persons operating video recording equipment at
depositions, and any special master appointed by the Court);
c.

to any persons designated by the Court in the interest of justice, upon such

terms as the Court may deem proper; and
d.

to persons noticed for depositions or designated as trial witnesses to the

extent reasonably necessary in preparing to testify; and to outside consultants or experts retained
for the purpose of assisting counsel in the Litigation (“Experts”); provided however, that in all
such cases the individual to whom disclosure is to be made has signed a form containing:
i.

a recital that the signatory has read, understands, and agrees to be

bound by this Order;
ii.

a recital that the signatory understands that unauthorized disclosures

of any of the Protected Materials constitutes contempt of Court; and
iii.

a statement that the signatory consents to the exercise of personal

jurisdiction by the United States District Court for the Western District of North
Carolina (the “Court”) and that they will be bound by this Order.
4.

Permissible Disclosures - Attorneys’ Eyes Only Documents. Notwithstanding

Section 2 above, Attorneys’ Eyes Only Documents may be disclosed to individuals identified in
Section 3(b), (c), and (d) above. Before disclosing an Attorneys’ Eyes Only Document to any
person listed in subsections (c) or (d), the Party wishing to make such disclosure shall give at least
ten days’ advance written notice in writing to the counsel who designated such information as
confidential, stating the names and addresses of the person(s) to whom the disclosure will be made,
identifying with particularity the Discovery Materials to be disclosed, and stating the purposes of
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such disclosure (provided, however, that this prior notice requirement shall not apply to Experts).
If within the ten-day period a motion is a filed objecting to the proposed disclosure, disclosure is
not permissible until the Court determines that the objecting Party has shown good cause why the
proposed disclosure should not be permitted.
5.

Good Faith Efforts. In designating information as “CONFIDENTIAL” or

“ATTORNEYS’ EYES ONLY,” the party to this agreement making the designation will make
such designation only as to that information that it and its counsel in good faith believes contains
confidential information. Discovery Material that is known by the designator to be available to
the public shall not be designated as confidential.
6.

Declassification. The party to this agreement objecting to the designation may

apply to the Court for a ruling that Discovery Material that has been marked or otherwise
designated as a Stamped Confidential Document or as an Attorneys’ Eyes Only Document is not
entitled to such status and protection. The Producing Party or other person that designated the
Discovery Material as Protected Material shall be given written notice of the application and an
opportunity to respond. To maintain confidential status, the proponent of confidentiality must
show by a preponderance of the evidence that there is good cause for the Discovery Material to
have such protection.
7.

Confidential Information in Depositions.
a.

A deponent may during the deposition be shown, and examined about,

Stamped Confidential Documents or Attorneys’ Eyes Only Documents if the deponent already
knows the confidential information contained therein or if the provisions of Section 3 and 4 are
met. Deponents shall not retain or copy portions of the transcript of the depositions that contain

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confidential information not provided by them or the entities they represent unless they sign the
form prescribed in Section 3(d). A deponent who is not a Party or a representative of a Party shall
be furnished a copy of this Order before being examined about, or asked to produce, Privileged
Materials (provided, however, that the provisions of the second and third sentences of this
Paragraph 7.a do not apply if (i) the deponents is an authorized representative of a Party which is
not a natural person and (ii) the Protected Materials were produced by the Party).
b.

Parties and deponents may, within 14 days after receiving a deposition

transcript, designate pages of the transcript (and exhibits thereto) as confidential or as attorneys’
eyes only. Confidential information within the deposition transcript may be designated by
underlining the portions of the pages that are confidential and marking such pages with the
following legend: “Confidential- Subject to Protection Pursuant to Court Order” or “Attorneys’
Eyes Only - Subject to Protection. Pursuant to Court Order.” Until expiration of the 14-day period,
the entire deposition transcript will be treated as Attorneys’ Eyes Only pursuant to this Order. If
no Party timely designates confidential information in a deposition, then none of the transcript or
its exhibits will be treated as confidential (excluding, however, documents previously marked as
Stamped Confidential Documents or as Attorneys’ Eyes Only Documents). If a timely designation
is made, the confidential portions and exhibits shall be treated in accordance with Paragraphs 2, 3
and 4, above, and filed under seal (after entry of an order by a court of competent jurisdiction
authorizing the filing of sealed documents) separate from the portions and exhibits not so marked.
8.

Confidential Information At Trial.

Stamped Confidential Documents,

Attorneys’ Eyes Only Documents and other Protected Materials may be offered in evidence or
otherwise at trial or any court hearing in the Litigation, provided that the proponent of the evidence
gives ten days’ advance notice to counsel for the Party or other person that designated the
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information as confidential. If documents designated under this order are offered as evidence at
trial, however, they shall be offered with the relevant designation intact unless the designation was
previously successfully challenged and removed or otherwise removed by consent of all parties to
this agreement. Any Party may move the Court for an order that the evidence be received in
camera or under other conditions to prevent unnecessary disclosure.
9.

Subpoena By Other Courts Or Agencies. If another Court or an administrative

agency subpoenas, or orders a Party to produce (including pursuant to applicable rules of civil or
criminal procedure relating to the discovery of information or documents of a party to litigation or
to a criminal or administrative proceeding), any of the Protected Materials, such Party shall
promptly give written notice to the Party or other person who designated the Discovery Materials
as confidential of the pendency of such subpoena or order, and shall not produce any Protected
Material until the Party designating the Discovery Materials has been given at least 10 (ten) days’
written to object to the appropriate Court or agency. The Party to whom the order, subpoena or
request is directed shall not take any position concerning the propriety of such subpoena or request
that is adverse to the party that originally designated the Discovery Materials as confidential.
10.

Filing. If filed, Protected Materials shall be filed under seal (upon entry of an order

authorizing the filing under seal) and shall remain sealed so long as they retain their status as
Protected Materials.
11.

Client Consultation. Nothing in this order shall prevent or otherwise restrict

counsel from rendering advice to their clients and, in the course thereof, relying generally on
examination of Stamped Confidential Documents or Attorneys’ Eyes Only Documents; provided,
however, that in rendering such advice and otherwise communicating with such client, counsel

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shall not make specific disclosure of Protected Material except pursuant to the procedures of
Sections 3 and 4.
12.

Prohibited Copying. If Discovery Material contains information so sensitive that

it should not be copied by anyone, the Producing Party may petition the Court for an order
prohibiting the receiving party from copying such Discovery Material.
13.

Use. Persons obtaining access to Protected Materials under this Order shall use the

information only for preparation and trial of this Litigation (including appeals and retrials), and
shall not use such information for any other purposes, including business, governmental,
commercial, or administrative, or judicial proceedings.
14.

Non-Termination; Destruction. The provisions of this Order shall not terminate

at the conclusion of the Litigation and will remain binding on the Parties and all persons and
entities which have received Protected Materials under Paragraph 3 of this Order. The ultimate
disposition of Protected Materials is subject to a final order of the Court to be entered upon the
completion of litigation. In the absence of such an order, however, within 120 days after final
conclusion of all aspects of the Litigation, all Protected Materials (other than exhibits of record)
shall be returned to the Party or person which produced such Discovery Material or, at the option
of the producer if it retains at least one copy of the same), destroyed (provided, however, that this
Paragraph 14 shall not require (i) any counsel to destroy all copies of Protected Materials if the
applicable rules of professional conduct require that counsel maintain copies for its, his or her
records or (ii) any Party to destroy all copies of Protected Materials if applicable laws or
regulations require such Party to maintain such copies). All counsel of record shall make
certification of compliance herewith and shall deliver the certification to counsel for the party who
produced the Discovery Material not more than 150 days after final termination of this Litigation.
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15. Clawback. The inadvertent disclosure or production of any information or document
that is subject to an objection on the basis of attorney-client privilege or work-product protection
will not be deemed to waive the Producing Party’s claim to its privileged or protected nature or
estop that party or the privilege holder from designating the information or document as attorneyclient privileged or subject to the work product doctrine at a later date. Any party receiving any
such information or document shall return it upon request from the Producing Party.

Upon

receiving such a request as to specific information or documents, the receiving party shall return
the information or documents to the Producing Party within five (5) business days, regardless of
whether the receiving party agrees with the claim of privilege and/or work-product protection.
Disclosure of the information or document by the other party prior to such later designation shall
not be deemed a violation of the provisions of this Confidentiality Agreement and Protective
Order.
16.

Modification Permitted. Nothing in this Order shall prevent any Party or other

person from seeking modification of this Order by application to the Court or from objecting to
discovery that it believes to be otherwise improper.
17.

Responsibility of Attorneys. The attorneys of record in the Litigation are

responsible for employing reasonable measures to control, consistent with this order, duplication
of, access to, and distribution of copies Protected Materials. Parties shall not duplicate any
Protected Material except working copies and for filing in Court under seal.
SO ORDERED.

Signed: June 21, 2016

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