Moseman v. U.S. Bank National Association

Filing 24

CONSENT ORDER GOVERNING THE EXCHANGE AND PROTECTION OF CONFIDENTIAL INFORMATION. Signed by Magistrate Judge David Keesler on 4/5/18. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JORDAN MOSEMAN, on behalf of
himself and all others similarly situated,
Plaintiff,
v.
U.S. BANK NATIONAL
ASSOCIATION,
Defendant.

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C.A. No. 3:17-CV-481-FDW-DCK

CONSENT ORDER GOVERNING THE EXCHANGE AND
PROTECTION OF CONFIDENTIAL INFORMATION
Proceedings and Information Governed.

1.

This Order (“Protective Order”) is made under Fed. R. Civ. P. 26(c) and agreed

upon by and between Plaintiff Jordan Moseman (“Plaintiff”) and U.S. Bank National Association
(“U.S. Bank”), and their respective counsel. On behalf of himself and those similarly situated,
Plaintiff makes claims about his and the duties of certain employees which involve the
investigation of potentially suspicious activity for the purpose of U.S. Bank’s deciding whether to
file a Suspicious Activity Report (“SAR”) when required by the Bank Secrecy Act (“BSA”). U.S.
Bank represents, and Plaintiff does not dispute, that the BSA requires of U.S. Bank certain reports
where they have a high degree of usefulness in criminal, tax or regulatory investigations or
proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis,
to protect against international terrorism. As such, there may be criminal, regulatory, or even
national security implications with respect to publicly disclosing certain information that may be
subject to discovery in this action, and that there is a real and immediate interest in protecting such
information from public disclosure. Because of the nature of Plaintiff’s claims and U.S. Bank’s

defenses thereto, this case requires the review of information the public disclosure of which may,
among other things, provide a roadmap for or otherwise facilitate persons to engage in serious
illegal or suspicious activity and evade U.S. Bank’s risk-based controls for detecting potentially
suspicious activity and reporting suspicious activity to the Financial Crimes Enforcement Network
(“FinCEN”), a bureau of the U.S. Department of the Treasury, as mandated by the BSA.

2.

This Order governs any document, electronically stored information (“ESI”), other

information, thing, or testimony furnished by any party to any other party under Rule 34. The
information that may be protected by this Protective Order includes all factual information
disclosed in this action, including but not limited to: answers to interrogatories; answers to requests
for admission; responses to and production of documents, ESI, information and things responsive
to requests for production of documents; deposition transcripts and videotapes; deposition exhibits;
deposition testimony; and other documents, ESI, information and things produced, given, or filed
in this action that are designated by a party as “Confidential” or “Highly Confidential” in
accordance with the terms of this Protective Order, as well as any copies, excerpts, abstracts,
analyses, summaries, descriptions, or other forms of recorded information containing, reflecting,
or disclosing such information.
Non-disclosure of Certain Information.

3.

U.S. Bank represents, and Plaintiff does not dispute, that the BSA absolutely

prohibits U.S. Bank from disclosing certain information to anyone except its regulators and law
enforcement, including whether or not it filed any particular SAR and any information that would
reveal the existence of a SAR (the “BSA Disclosure Prohibition”). 31 U.S.C. §5318(g), 12 C.F.R.
§21.11(k), 31 U.S.C. 1020.320(e), see also 75 Fed. Reg. 75593 (Dec. 3, 2010). Thus, no request
for discovery shall be construed to seek production of any information subject to the BSA

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Disclosure Prohibition, and U.S. Bank will not attempt to use any information subject to the BSA
Disclosure Prohibition in this action or claim that any such information, if it could be used, could
assist it in defending the claims in this action.
Designation and Maintenance of Information.

4.

For purposes of this Protective Order, the term “Confidential Information” means

any document, electronically stored information (“ESI”), other information, thing, or testimony
that is comprised of medical, personal, personnel (for individuals who are not parties to this
lawsuit) or proprietary information, trade secrets or commercial information that is not publicly
known and is of technical or commercial advantage to its possessor or which could be misused if
not protected in accordance with Fed. R. Civ. P. 26(c), or other information required by law or
agreement to be kept confidential. Confidential Information that is within the scope of this
paragraph may be designated by the producing party as containing confidential information by
placing on each page and each thing a legend substantially as follows: “CONFIDENTIAL.” If it
is not reasonable or practicable to place such a legend on every page, such as in the case of certain
natively produced ESI, the producing party may comply with this designation requirement by
conspicuously designating the file as “CONFIDENTIAL.”

Any document, ESI, other

information, thing, or testimony may be designated as “Confidential Information” whether
produced by U.S. Bank, Plaintiff, any opt-in Plaintiff who has joined this action as a “party
plaintiff” under 29 U.S.C. § 216(b), or any non-party who receives a subpoena in connection with
this action under Rule 45.

5.

For purposes of this Protective Order, the term “Highly Confidential Information”

means any document, electronically stored information (“ESI”), other information, thing, or
testimony that reveals or concerns processes, thresholds, procedures, scenarios, decision-making

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criteria or other information by which U.S. Bank detects potentially suspicious activity,
investigates that activity, decides whether it is in fact suspicious, and determines whether to file a
SAR as mandated by 31 U.S.C. §5318, 12 C.F.R. §21.11, and 31 C.F.R. §1020.320. This Highly
Confidential Information may also concern law enforcement agencies and regulators. Such Highly
Confidential Information could provide a roadmap or other guidance which persons could use to
evade detection and thereby engage in serious criminal or terrorist activity. Highly Confidential
Information that is within the scope of this paragraph may be designated by the producing party
as containing Highly Confidential Information by placing on each page and each thing a legend
substantially as follows: “HIGHLY CONFIDENTIAL.” If it is not reasonable or practicable to
place such a legend on every page, such as in the case of certain natively produced ESI, the
producing party may comply with this designation requirement by conspicuously designating the
file as “HIGHLY CONFIDENTIAL.”

Any document, ESI, other information, thing, or

testimony may be designated as “Highly Confidential Information” whether produced by U.S.
Bank, Plaintiff, any opt-in Plaintiff who has joined this action as a “party plaintiff” under 29 U.S.C.
§ 216(b), or any non-party who receives a subpoena in connection with this action under Rule 45.

6.

Information disclosed at a deposition may be designated as Confidential or Highly

Confidential within the meaning of the preceding paragraphs by either: (a) indicating on the record
at the deposition that the testimony is Confidential or Highly Confidential and subject to this
Protective Order, or (b) notifying the other party in writing within ten business days of receipt of
the transcript of the pages and lines and/or exhibits that contain Confidential or Highly
Confidential Information. Unless the parties otherwise agreed at the conclusion of the deposition,
the transcript and exhibits will be treated as Highly Confidential Information until the conclusion
of the above ten business day period. If a party designates deposition testimony or exhibits as

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Confidential or Highly Confidential, the designating party is responsible for notifying the
applicable court reporter and videographer (if any) about such designation, and the designating
party shall bear any costs associated with the designations.

7.

In the event that Counsel for any party at any time believes that particular

Confidential or Highly Confidential Information or material should cease to be so designated,
Counsel shall notify the designating party, specifying the particular designation(s) in dispute and
the bases for each such challenge. Counsel for the challenging and designating parties shall confer
in good faith within ten business days of such notification, in an effort to resolve the matter by
agreement. If no agreement is reached within ten business days thereafter, the designating party
shall have the burden of moving and may file a motion that identifies the challenged Confidential
or Highly Confidential material setting forth in detail the basis for the designation. The burden of
persuasion in any such challenge proceeding shall be on the designating party. In the event such
a motion is made, any disputed Confidential or Highly Confidential material shall remain subject
to and protected by this Order until such motion is resolved.

8.

Recognizing the significant burdens on the parties and the Court that designating

information as confidential or highly confidential may create, each party shall exercise good faith
and reasonable discretion in designating material as confidential or highly confidential.

Inadvertent Failure to Designate.

9.

The inadvertent failure to designate or withhold any information as Confidential,

Highly Confidential or privileged will not be deemed a waiver of a later claim or argument as to

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its Confidential, Highly Confidential, or privileged nature and will not stop the producing party
from designating such information as such at a later date in writing and with particularity. The
information must be treated by the receiving party as privileged, Confidential, or Highly
Confidential from the time the receiving party is notified in writing of the change in the designation
until the parties agree, or the Court determines, such designation is not appropriate.
Inadvertent Disclosure and Claw-Back Rights.

10.

As provided by the Federal Rules of Civil Procedure and applicable case law, if a

party inadvertently produces a document, ESI, other information, thing, or testimony that contains
information protected from disclosure under the attorney-client privilege or other privilege
available at law, upon receipt of written notice requesting the “claw back” of such inadvertent
production, the party receiving such information must immediately return all copies of the
inadvertently produced documents and acknowledge no copies or electronic copies have been
retained, within three (3) days of receipt of the “claw-back” request. Likewise, a producing party
that inadvertently fails to designate a document, ESI, other information, thing, or testimony as
Confidential or Highly Confidential may “claw back” any such information and may seek to
designate the information as Confidential or Highly Confidential after the fact upon providing
notice to the opposing party.

Disclosure and Use of Confidential Information.

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11.

Confidential Information may only be used for purposes of preparation, court

hearing or other proceeding, trial, and appeal of this action; it may not be used under any
circumstances, for any other case or action, or for any other purpose.

12.

In addition to the Court and its personnel, but only as specifically provided below,

Confidential Information may be disclosed by the receiving party only to the following individuals
(“Qualified Persons”), provided that such individuals are informed of and agree to abide by the
terms of this Protective Order: (a) employees of the receiving party who are required in good faith
to provide assistance in the conduct of this litigation, including any settlement discussions; (b) inhouse counsel for the receiving party; (c) outside counsel for the receiving party; (d) supporting
personnel employed by (b) and (c), such as paralegals, legal secretaries, data entry clerks, legal
clerks, and private photocopying services; (e) consultants, mediators, and experts retained or
employed to assist counsel for the parties specifically for and in the preparation of this litigation
for hearing, trial or settlement, and the employees or agents for these consultants and experts
(hereafter “Experts”); (f) any persons requested by counsel to furnish services such as document
coding, image scanning, mock trial, jury profiling, translation services, court reporting or
videography services, demonstrative exhibit preparation, or the creation of any computer database
from documents; (g) the Defendant and its officials, the Plaintiff, and any opt-in Plaintiff who has
joined this action as a “party plaintiff” under 29 U.S.C. § 216(b) who is actively participating in
discovery; (h) the authors, addressees, or originators of the information designated as
“Confidential”; and (i) other persons noticed for deposition or designated as witnesses for trial or
any other hearing or proceeding in this litigation (hereafter “Witnesses”) who, in counsel’s
determination, have a need to know the confidential information.

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13.

If an attorney desires to give, show, make available, or communicate information

properly designated as confidential to any Experts or Witnesses, each person to whom the
information is to be given, shown, made available, or communicated, must agree in writing in the
form attached hereto as Exhibit A not to disclose to anyone who is not a Qualified Person any of
the information set forth or contained in the material received and to be bound by the terms of this
Protective Order. An executed copy of Exhibit A from each such individual shall be maintained
by the attorney who obtained it and a copy will be provided to opposing counsel upon request.
Disclosure and Use of Highly Confidential Information.

14.

Highly Confidential Information may only be used for purposes of preparation,

court hearing or other proceeding, trial, and appeal of this action; it may not be used under any
circumstances, for any other case or action, or for any other purpose.

15.

In addition to the Court and its personnel, but only as specifically provided below,

Highly Confidential Information shall be attorneys’-eyes-only information and may be disclosed
by the receiving party only to the following individuals (“Qualified Parties”), provided that such
individuals are informed of, agree to abide by the terms of this Protective Order, and execute
Exhibit A below: (a) in-house counsel for U.S. Bank; (b) counsel of record for Plaintiff and U.S.
Bank; (c) supporting personnel employed by (a) and (b) such as paralegals, legal secretaries, data
entry clerks, and legal clerks; (d) Experts; (e) any persons requested by counsel to furnish court
reporting or videographer services (hereinafter, “Court Reporters and Videographers”); and (f) the
named Plaintiff Jordan Moseman, any opt-in Plaintiff who has joined this action as a “party
plaintiff” under 29 U.S.C. § 216(b), U.S. Bank employee or former employee witnesses, or a U.S.
Bank-designated witness at a 30(b)(6) deposition, whose deposition is noticed or who is designated
as witnesses for trial or any other hearing or proceeding in this litigation (“Qualified Witnesses”).

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The Qualified Witnesses may only be shown Highly Confidential Information to which they
reasonably believe they had permissible access as part of their job duties.

16.

If an attorney desires to give, show, make available, or communicate information

properly designated as highly confidential to any Experts, Court Reporters and Videographers, or
to any Qualified Witnesses, each person to whom the information is to be given, shown, made
available, or communicated must agree in writing by signing the form attached as Exhibit A not to
disclose to anyone any of the information set forth or contained in the material received and to be
bound by the terms of this Protective Order prior to being shown any such information. An
executed copy of Exhibit A from each such individual shall be maintained by the attorney who
obtained it and provided to counsel for the opposing party upon request.
Filing or Introducing Confidential and Highly Confidential Information In Court.

17.

Any party intending to file with the Court or introduce at a hearing or trial any

Confidential Information or Highly Confidential Information shall, at least five days before such
filing or introduction (unless otherwise agreed by the parties): (a) request that the designating
party change the “Confidential” or “Highly Confidential” designation, pursuant to the procedures
for challenging designations set forth in this Protective Order, or (b) request that the designating
party agree to appropriate redactions of confidential, highly confidential, personal, or identifying
information from the document, ESI, other information, thing or transcript of testimony in order
to permit its filing or introduction in Court, or (c) request that the designating party file with the
Court a motion to file the information under seal. Counsel for the parties shall confer in good faith
to attempt to reach a resolution that will permit use of the document, ESI, other information, thing,
or transcript in Court without further intervention from the Court.

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18.

If such request is not granted or agreement cannot be reached, the party designating

the information as confidential or highly confidential shall file a motion to file or introduce the
information, in whole or in appropriate part, under seal pursuant to the Local Rules of the Court,
the December 21, 2017 Case Management Order, any Standing Orders or other applicable Orders
of the Court and controlling legal precedent.

19.

If a motion to seal information marked “Highly Confidential” is not granted, the

parties shall meet and confer in good faith to reach agreement on appropriate redactions or other
measures to permit the filing or introduction of the information in Court without the disclosure of
Highly Confidential Information. If counsel for the parties cannot agree, then the parties will
jointly submit their dispute to the Court, which will resolve the issue.

20.

Producing or receiving confidential or highly confidential information, or otherwise

complying with the terms of this Protective Order, will not: (a) operate as an admission by any
party that any particular confidential or highly confidential information contains or reflects trade
secrets or any other type of proprietary information; (b) prejudice the rights of a party to object to
the production of information or material that the party does not consider to be within the scope of
discovery; (c) prejudice the rights of a party to seek a determination by the presiding judge that
particular materials be produced; (d) prejudice the rights of a party to assert their rights under
Federal and Local Rules, to move to compel the production of information or to apply to the
presiding judge for further protective orders; or (e) prevent the parties from agreeing in writing to
alter or waive the provisions or protections in this Protective Order with respect to any particular
information or material.

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Conclusion of Litigation.

21.

Within thirty (30) calendar days after final judgment in this action, including the

exhaustion of all appeals, or within thirty (30) calendar days after dismissal pursuant to a settlement
agreement, each party or other person subject to the terms of this Protective Order is under an
obligation to return to the producing party or destroy all materials and documents containing
confidential or highly confidential information and to certify to the producing party that this return
has been done. The receiving party is further under an obligation to permanently delete any
electronic copies of confidential or highly confidential information.

22.

Outside counsel for any party, however, may retain all court papers, trial transcripts,

exhibits, and attorney work provided that any such materials are maintained and protected in
accordance with the terms of this Protective Order. If counsel for the parties cannot agree on the
continued maintenance of the materials by counsel, then the parties will submit their dispute to the
Court, which will resolve the issue.

23.

With respect to confidential or highly confidential information produced by

Defendant, Defendant or their counsel shall maintain copies for at least three years following
dismissal or entry of final order. In the event that Plaintiff’s counsel requests copies of such
Confidential Information in connection with subsequent litigation between them and Plaintiff, any
opt-in plaintiffs or class member regarding the lawsuit, Defendant or their counsel agree to produce
the Confidential Information, subject to the terms of this Protective Order.
Other Proceedings.

24.

By entering this Protective Order and limiting the disclosure of information in this

case, the presiding judge does not intend to preclude another court from finding that information
may be relevant and subject to disclosure in another case. Any person or party subject to this

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Protective Order who may be subject to a motion, subpoena, or other legal process purporting to
require them to disclose another party’s information designated as “Confidential” or “Highly
Confidential” pursuant to this Protective Order must promptly notify that party of the motion so
that the party may have an opportunity to appear and be heard on whether that information should
be disclosed.
Remedies.

25.

Any party may for good cause shown petition the presiding judge if the party

desires relief from a term or condition of this Protective Order.

26.

For any threatened breach or actual breach of this Protective Order, in addition to

any other remedy available, a producing party will be entitled on an expedited basis to a
preliminary injunction, injunction, or temporary restraining order prohibiting disclosure of
confidential or highly confidential information.

AGREED TO BY:
s/James B. Zouras
Philip J. Gibbons, Jr.
STEPHAN ZOURAS, LLP
15720 Brixham Hill Avenue
Suite 331
Charlotte, NC 28277
[e-mail]
James B. Zouras
Teresa M. Becvar
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue, Suite 2500
Chicago, IL 60601
[e-mail]
[e-mail]
COUNSEL FOR PLAINTIFF

s/ Elizabeth R. Gift
Elizabeth R. Gift
N.C. Bar No. 44331
Ogletree, Deakins, Nash, Smoak & Stewart,
P.C.
201 South College Street, Suite 2300
Charlotte, NC 28244
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
A. Craig Cleland*
Erika L. Leonard*
Admitted Pro Hac Vice
Ogletree, Deakins, Nash, Smoak & Stewart,
P.C.
191 Peachtree Street, N.E., Suite 4800
Atlanta, GA 30303

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Telephone Number: 404.881-1300
Facsimile: 404.870.1732
Email: [e-mail]
[e-mail]
COUNSEL FOR DEFENDANT

*****

DONE AND ORDERED.

Signed: April 5, 2018

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JORDAN MOSEMAN, on behalf of
himself and all others similarly situated,
Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION,
Defendant.

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C.A. No. 3:17-cv-00481-FDW-DCK

EXHIBIT A TO CONSENT ORDER GOVERNING THE EXCHANGE AND
PROTECTION OF CONFIDENTIAL INFORMATION
I hereby certify that I have carefully read the Consent Order Governing the Exchange and
Protection of Confidential and Highly Confidential Information (the “Protective Order”) in the
above-captioned case and that I fully understand the Order’s terms. I recognize that I am bound
by the terms of that Order, and I agree to comply with those terms. I also agree to be subject to
the personal jurisdiction of this Court for the purpose of enforcing this certification and the
Protective Order.
Dated this ____ day of___________, 20__.
Signature: __________________________
Name: _____________________________
Affiliation: _________________________
Address: ___________________________
___________________________

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