CMFG Life Insurance Company et al v. Morgan Stanley & Co., LLC
Filing
116
ORDER granting 114 Motion to Supplement Protective Order. Signed by District Judge James D. Peterson on 10/25/2016. (arw)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CMFG Life Insurance Company,
Cumis Insurance Society, Inc., and
Members Life Insurance Company,
Plaintiffs,
Case No. 13-CV-577 GDP)
v.
Morgan Stanley & Co., LLC,
Defendant.
STIPULATION AND [PROPOSED] ORDER FOR PRODUCTION AND EXCHANGE
OF CONFIDENTIAL INFORMATION FROM NON-PARTIES FDIC-RECEIVER
AND CIT BANK, N .A.
IT IS HEREBY STIPULATED, AGREED and ORDERED that the following
procedures will govern the production of certain documents, exhibits, and other information or
materials produced by the Federal Deposit Insurance Corporation in its capacity as receiver for
IndyMac Bank, F.S.B. ("FDIC-Receiver"), and CIT Bank, N.A. (f/k/a OneWest Bank, FSB) ("CIT")
(the "Producing Parties" or "Producing Party") in the above-captioned action (the "Action"):
1.
This Stipulation and Order (the "Supplemental Protective Order") supplements the
protections provided in the Stipulation and Protective Order Regarding Confidential Discovery
Materials and "Clawback" of Documents entered March 13, 2015 (the "March 13, 2015 Order"). This
Order incorporates by reference the terms of the March 13, 2015 Order.
2.
The Producing Parties were served by CMFG Life Insurance Company, CUMIS
Insurance Society,' and MEMBERS Life Insurance Company with subpoenas in the Action (the
"Subpoenas"). Nothing herein constitutes an agreement by the Producing Parties to produce any
documents in response to the Subpoenas and the Producing Parties reserve all rights in this regard.
Nevertheless, the Producing Parties agree that to the extent they produce documents in response to
the Subpoenas, certain Confidential Materials from the Producing Parties may be produced to the
parties in the Action. Some Confidential Materials may contain information about customers of
IndyMac Bank, F.S.B., and its affiliates (including customers for whose loans CIT may have been, or
may now be, acting as servicer) that may include (a) "nonpublic personal information," as such term
is defined in Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801-6809, and the Regulations
promulgated thereunder (including 16 C.F.R. Part 313, 16 C.F.R. Part 314, 12 C.F.R. Part 332, and 12
C.F.R. PaJ;:t 364), and (b) information covered by state and _any other federal laws and regulations
protecting the privacy and security of personal information. All such federal and state laws and
regulations are referred to herein collectively as "Privacy Laws." Nonparty Borrower Information as
defined in the March 13, 2015 Order, "nonpublic personal information" within the meaning of the
Gramm-Leach Bliley Act, and other information protected by Privacy Laws are referred to herein
collectively as "NPPI." NPPI includes, but is not limited to, an individual's name, Social Security
number, credit card and debit card account number, bank account number, state identification card
number, driver!'s license number, and date of birth. The designation of Confidential Materials for
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purposes of this Supplemental Protective Order shall be made by affixing the legend "Confidential May Contain Nonpublic Personal Information" in the same manner as documents designated "Highly
Confidential" as described in Paragraphs 4 and 11 of the March 13, 2015 Order. This designation
may only be used by the Producing Parties pursuant to this Supplemental Protective Order. All
documents produced by other Parties containing NPPI shall be designated as "Confidential" in
accordance with Paragraph 3 of the March 13, 2015 Order.
3.
No recipient of Confidential Materials designated as "Confidential - May Contain
Nonpublic Personal Information" may use or disclose such materials other than as described herein.
Parties and their counsel who receive Confidential Materials designated as "Confidential - May
Contain Nonpublic Personal Information" acknowledge the sensitive nature of such materials,
including the possibility of identity theft or other harm to borrowers if there is inappropriate disclosure
or misuse of the NPPI which these materials may contain. Parties and their counsel who receive
Confidential Materials designated as "Confidential- May Contain Nonpublic Personal Information"
shall take reasonable steps to secure such materials from disclosures not authorized under the terms
of this Supplemental Protective Order and from misuse by persons provided access to them.
Compliance with the terms of the March 13, 2015 Order and of this Supplemental Protective Order
shall be considered adequate compliance with the foregoing sentence.
4.
The production by the Producing Parties of documents containing NPPI pursuant to
the terms of this Supplemental Protective Order shall not be deemed a violation of any duty or
obligation arising under confidentiality, consumer privacy, consumer protection or other federal, state
or local laws, regulations, or case law concerning the use, privacy, security, and disposal of NPPI of
any person.
5.
The consumer notice requirements of California Code of Civil Procedure sections
1985.3 and 2020.410(d) shall not be deemed applicable to the protection of Confidential Materials
containing NPPI in this Action, and no party to this Action shall be required to provide such notice.
6.
Any Producing Party may designate any Confidential Materials as "Confidential - May
Contain Nonpublic Personal Information" if such Confidential Materials reveal or contain NPPI.
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Such Confidential Materials may be used only for purposes of this Action and may be disclosed solely
to those persons specified in Paragraphs 7(a)-(f) of the March 13, 2015 Order.
7.
The persons described in Paragraphs 7(a)-(f) of the March 13, 2015 Order shall have
access to Confidential Materials designated as "Confidential - May Contain Nonpublic Personal
Information" only after they have been made aware of the provisions of this Supplemental Protective
Order. In signing this Supplemental Protective Order, counsel whose signatures are affixed below
certify that the sensitive nature of the Confidential Materials containing NPPI and the provisions of
this Supplemental Protective Order will be communicated to the attorneys, paralegals, case clerks,
legal assistants and other employees of their respective law firms before they receive access to
Confidential Materials designated as "Confidential- May Contain Nonpublic Personal Information".
Counsel who receive Confidential Materials· designated as "Confidential - May Contain Nonpublic
Personal Information" further 'agree to require the persons specified in Paragraphs 7(a)-(f) of the
March 13, 2015 Order, to sign a copy of the annexed "NPPI UNDERTAKING" prior to being
afforded access to Confidential Materials designated as "Confidential - May Contain Nonpublic
Personal Information," except employees of signatory counsel's law firms, as described in the
preceding sentence, and persons described in Paragraph 7 (d) of the March 13, 2015 Order who are
shown documents during a deposition shall not be required to sign the NPPI Undertaking. Counsel
shall retain copies of the signed NPPI Undertaking until the completion of the above-captioned
litigation.
8.
Counsel who receive Confidential Materials designated as "Confidential - May .
Contain Nonpublic Personal Information" may contact former borrowers, guarantors, or other
obligees to mortgages or loans included in the production of Confidential Materials designated as
"Confidential - May Contain Nonpublic Personal Information" ("Protected Borrowers") only if
counsel obtained the identities of Protected Borrowers through means other than the Producing
Parties' production, but counsel may not disclose to Protected Borrowers the contents of Confidential
Materials designated as "Confidential~ May Contain Nonpublic Personal Information," or the fact
that Confidential Materials designated as "Confidential - May Contain Nonpublic Personal
Information" have been produced in this Action, unless such counsel have received the contents of
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the Confidential Materials designated as "Confidential - May Contain Nonpublic Personal
Information" other than from the Producing Parties' production. Otherwise, no Party or its counsel
shall contact or communicate with any Protected Borrower without prior authorization from the
Court or the Producing Parties.
9.
In the event that a Producing Party discovers that it has inadvertently produced
Confidential Materials containing NPPI without having marked such material with the appropriate
designation, the Producing Party may notify each Party receiving such material ("the Receiving Party")
and require the. Receiving Party to retrieve and return any unmarked or incorrectly marked material,
and the Producing Party will substitute appropriately marked material.
Upon receipt of such
notification from the Producing Party, the Receiving Party immediately must treat the inadvertently
misdesignated production as material properly designated as "Confidential -
May Contain Nonpublic
Personal Information."
10.
In the event of disclosure of any material designated "Confidential -
May Contain
Nonpublic Personal Information" to a person not authorized for access to such material in accordance
with this Supplemental Protective Order, the party responsible for having made such disclosure must
promptly inform counsel for the Producing Party of all known relevant information concerning the
nature and circumstances of the disclosure.
The responsible party also must promptly take all
reasonable measures to retrieve all such materials from the unauthorized person and ensure that no
further or greater unauthorized disclosure or use of such information or materials is made. Each party
must cooperate in good faith in that effort.
11.
The Producing Parties intend to provide the parties with options concerning the form
of its production of Confidential Materials. If the parties elect to have the Confidential Materials
produced by making them available on one or more secured electronic repositories hosted by a thirdparty vendor, any document containing NPPI that is made available on secured electronic repository
shall be deemed to be designated as "Confidential-May Contain Nonpublic Personal Information"
without any further designation. In the event that the parties choose a physically imaged production
of Confidential Materials, the Producing Parties will Bates stamp their productions and stamp all
productions with a "Confidential- May Contain Nonpublic Personal Information" label.
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12.
In order to decrease the delay and burden on all Parties, the Producing Parties have.
agreed to the production of certain documents ("Discovery Material") without substantial initial
review for confidentiality and without substantial initial review for, but without waiving, the attorneyclient privilege or other privileges or protections - including, but not limited to, attorney work product,
deliberative process, suspicious activity reports ("SAR"s), or 12 C.F.R. pt. 309 - with the
understanding that the Producing Parties reserve their right to assert such privileges or protections in
the future. Nothing in this Supplemental Protective Order requires production or disclosure of any
material that counsel for the Producing Parties reasonably believes is protected from disclosure by the
attorney-client privilege or another privilege or protection. Pursuant to Fed. R. Evid. 502(d) and other
applicable laws, no applicable attorney-client privilege, attorney work product protection, or other
applicable privilege or protection, including, but not limited to, attorney work product, deliberative
process, suspicious activity reports ("SAR"s), or 12 C.F.R. pt. 309, is waived by production or
disclosure of information pursuant to this Supplemental Protective Order, and Producing Parties shall
not have to meet the requirements of Fed. R. Evid. 502(b)(1)-(3).
(a)
In order to expedite production of voluminous materials, the Parties agree that
Discovery Material produced by the Producing Parties may be designated and produced in bulk as
"CONFIDENTIAL" or "Confidential - May Contain Nonpublic Personal Information" without
detailed review under Paragraph 4 of the March 13, 2015 Order, subject to the "claw back" procedures
in Paragraphs 29-33 therein, or such procedures as are otherwise agreed to, notwithstanding that some
of the documents within the collection may not qualify for such designation. For purposes of this
Supplemental Protective Order, such designation may be made by affixing the legend
"CONFIDENTIAL" in the manner described in Paragraph 11 of the March 13, 2015 Order or the
legend "Confidential - May Contain Nonpublic Personal Information" in the manner described
herein. In the event the Producing Parties produce the Discovery Material by making it available on
one or more secured electronic repositories hosted by a third-party vendor, any document in the
possession, custody, or control of the Producing Parties that is made available on such a secured
electronic repository shall be deemed to be designated as "CONFIDENTIAL" without any further
designation, unless such document contains NPPI, in which case such document shall be deemed to
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be designated as "Confidential - May Contain Nonpublic Personal Information" in accordance with
Paragraph 11 above. A Party may at any time challenge the designation of one or more. particular
documents under the procedures set forth in Paragraph 13 of the March 13, 2015 Order.
(b)
In addition to the procedures set out in paragraphs 11 (c) and 33 of the Protective
Order, in the event that any Party determines to disclose or use any Discovery Material produced by
the Producing Parties and designated "CONFIDENTIAL" or "Confidential - May Contain
Nonpublic Personal Information" in a deposition, such P~rty must notify the Producing Party that
produced the Discovery Material of such use and ptovide copies of (or identify by production
numbers) the Discovery Material used within seven (7) days after such use. The Producing Party will
advise the Party within twenty one (21) days of any objection it has to further disclosure of such
Discovery Material based on a claim of privilege or other protection. Upon notice of any such
objection from the Producing Party, the Discovery Material will be subject to the procedures set forth
in Paragraphs 29-33 of the March 13, 2015 Order for claw back of Discovery Material. In the event
any Party provides a Producing Party with a substantial volume of documents to review within any
twenty one (21) day period, the Producing Party may seek leave from the Court for additional time to
object to further disclosure of such Discovery Material based on a claim of privilege or other
protection.
(c)
In the event that counsel for any Party determines to file with the Court any Discovery
Material produced by the Producing Parties and designated "CONFIDENTIAL" "Confidential- May
Contain Nonpublic Personal Information," counsel filing the Discovery Material must follow the
procedures set forth in Paragraph 15 of the March 13, 2015 Order. In addition to those procedures,
counsel filing the material must provide copies of (or identify by production numbers) the Discovery
Material to the Producing Party that produced the Discovery Material within seventy-two (72) hours
after filing.
(d)
In the event that counsel for a Party intends to use at trial or in any hearing any
Discovery Material produced by the Producing Parties and designated as "CONFIDENTIAL;" or
"Confidential - May Contain Nonpublic Personal Information" counsel intending to use the
Discovery Material must either (a) redact all NPPI before using the material in court, and provide
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copies of (or identify by production numbers) the Discovery Material to the Producing Party that
produced the material within forty eight (48) hours before using the materials in open court to provide
the Producing Party with the opportunity to object to the use of such Discovery Material based on a
claim of privilege or other protection; or (b) confer in good faith with the Producing Party reasonably
in advance of such use in an attempt to agree upon other safeguards designed to protect potentiallyprivileged documents obtained from the Producing Parties from potential misuse, with all parties, the
Producing Parties reserving their rights to have any disagreements about the use of such material
resolved by the Court. Except as necessary to resolve disputes with the Court, the Producing Party
shall not disclose the content or identity of the Discovery Material to any Party other than the Party
that provided the copies of the Discovery Material to the Producing Party.
(e)
To facilitate the Parties' obligations with regard to the use of Confidential materials
produced by the Producing Parties under this Paragraph, the Producing Parties shall Bates stamp and
affix the label "SUBJECT TO SUPPLEMENTAL PROTECTIVE ORDER" to all Confidential
physical imaged materials that FDIC Receiver or CIT as Producing Parties produce in this Action (see
paragraph 11, supra).
13.
The Parties to the Action and the Producing Parties agree to a claw-back provision
that will entitle the Producing Parties to the return of any documents or information which they
produce that (a) may subsequently be identified as privileged or subject to the work product or any
other immunity; (b) do not relate to the particular mortgages or loans that are the subject of the Action;
or (c) otherwise should not have been produced as part of the production. The Parties to the Action
waive and forever relinquish any right to assert, in any lawsuit, administrative proceeding, arbitration,
negotiation or other proceeding that a waiver of any privilege, immunity from disclosure or other
similar protection has occurred by virtue of the production of documents or information pursuant to
this Supplemental Protective Order except in compliance with this paragraph. The production of
documents or information pursuant to this Supplemental Protective Order shall not waive any
privilege or immunity with respect to such production or with respect to other materials or
information referred to in the materials produced, so long as the Producing Party who produced such
documents or information requests the return or destruction of such documents or information in
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writing not more than thirty (30) days after identifying the basis for requesting the return or destruction
of such documents or information, except where a different period for such a request from the
Producing Parties is set out in paragraph 14 of this Supplemental Protective Order. The Producing
Party's written request shall specifically identify the relevant documents or information and shall state
the basis for the claim of privilege or protection. Within ten (10) days after such request, the Receiving
Parties shall take reasonable efforts to return or destroy the documents identified and all copies
thereof, and certify in writing that they have done so.
14.
The Parties agree to submit this Supplemental Protective Order for the Court!s
consideration and approval as an Order. The Parties further agree to be bound by the terms agreed
to herein prior and subsequent to entry by the Court. Entry of this Supplemental Protective Order
shall be without prejudice to other third parties!' ability to seek additional protections if called for by
the particular circumstances or the documents at issue.
15.
Except as expressly set forth above, all other terms of the March 13, 2015 Order
remain in full force and effect.
Good cause having been shown, and the rights of witnesses and consumers having been
preserved,
IT IS SO ORDERED.
1,~
&7/Jt?Ff2
Dated t h i s _ day of _ _ _ _ _ _ _ _ _ _ _, 2016.
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NPPI UNDERTAKING
1.
I,
2.
I have received a copy of the March 13, 2015 Stipulation and Protective Order
, declare that:
Regarding Confidential Discovery Materials and "Clawback" of Documents, and the
[INSERT DATE] Stipulation and Order for Production and Exchange of Confidential
Information from Non-Parties FDIC-Receiver and CIT Bank, N.A. (the "Orders") entered
by the Court in CMFG Life Insurance Compm!J, et al. v. Mor;gan Stanlry & Co., LLC, United States
District Court, Western District of Wisconsin, Case No. 13-CV-577 (the "Action"). I have
read the Orders and understand their provisions.
3.
I acknowledge the sensitive nature of the Confidential Materials designated as
"Confidential - May Contain Nonpublic Personal Information," as that term is defined in
the [INSERT DATE] Stipulation and Order for Production and Exchange of Confidential
Information from Non-Parties FDIC-Receiver and CIT Bank, N.A.
4.
I will comply with all of the provisions of the Orders. I will hold in confidence,
will not disclose to anyone other than those persons specifically authorized by the Orders, and
will not use for purposes other than for purposes of this Action any information designated
"CONFIDENTIAL - MAY CONTAIN NONPUBLIC PERSONAL INFORMATION"
that I receive in this Action, except as otherwise permitted under the Orders. I specifically
agree not to use any such materials for any unauthorized use, including personal use, and
understand that legal consequences may result should I do so. I consent to the jurisdiction of
the Superior Court of Washington for the County of King to resolve any issues with respect
to my compliance with the Orders.
Dated:------------
Signature
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