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Federal Deposit Insurance Corp. v. Bear Stearns Asset Backed Securities I LLC

United States District Court, S.D. New York

January 8, 2020

FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR CITIZENS NATIONAL BANK and RECEIVER FOR STRATEGIC CAPITAL BANK, 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.

          GRAIS & ELLSWORTH LLP David J. Grais, Esq., Vickie Reznik, Esq., Kathryn E. Matthews, Esq. Counsel for Plaintiff the Federal Deposit Insurance Corporation as Receiver for Citizens National Bank and Receiver for Strategic Capital Bank

          SIMPSON THACHER & BARTLETT LLP Andrew T. Frankel, Esq., Linton Mann III, Esq. Counsel for Defendants Deutsche Bank Securities Inc., NatWest Markets Securities Inc. (f/k/a RBS Securities Inc.), and UBS Securities LLC

          ORRICK HERRTNGTON & SUTCLIFFE LLP Richard A. Jacobsen, Esq., John Ansbro, Esq., Paul F. Rugani, Esq., Gregory D. Beaman, Esq., Barry S. Levin, Esq. Counsel for Defendants Credit Suisse First Boston Mortgage Securities Corp., Credit Suisse Management LLC, and Credit Suisse Securities (USA) LLC

          MAYER BROWN LLP Michael O. Ware, Esq., Charles S. Korschun, Esq. BOIES SCHILLER FLEXNER LLP Andrew Z. Michaelson, Esq. Counsel for Defendant HSBC Securities (USA), Inc.

          STIPULATION AND [PROPOSED] PROTECTIVE ORDER

          Hon. Kevin Nathaniel Fox, United States Magistrate Judge.

         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.

         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, 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.

         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 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 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 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.
(f) Reproduced Discovery Material: material that is produced in the above-captioned 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 and not for any other purpose whatsoever.

         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 ...


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