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CMFG Life Insurance Co. v. Morgan Stanley & Co., LLC

United States District Court, W.D. Wisconsin

October 26, 2016

CMFG Life Insurance Company, Cumis Insurance Society, Inc., and Members Life Insurance Company, Plaintiffs,
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. Part 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 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. 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 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 third-party 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.

         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 attorney-client 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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