LARRY W. GABRIEL- BarNo. 68329 STEVEN T. GUBNER- BarNo....

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LARRY W. GABRIEL - Bar No. 68329STEVEN T. GUBNER - Bar No. 156593COREY R. WEBER - Bar No. 205912EZRA BRUTZKUS GUBNER LLP21650 Oxnard Street, Suite 500Woodland Hills, CA 91367Telephone: (818)827-9000Facsimile: (818)827-9099Email: [email protected]

[email protected]@ebg-law.com

Special Litigation Counsel for Plaintiff,Tliomas P. Jeremiassen, Chapter 11 Trustee

UNITED STATES BANKRUPTCY COURT

CENTRAL DISTRICT OF CALIFORNIA

NORTHERN DIVISION

In re

ESTATE FINANCIAL, INC. a Californiacorporation.

Debtor.

THOMAS P. JEREMIASSEN, CHAPTER 11TRUSTEE,

Plaintiff,

vs.

BRYAN CAVE LLP, a professional limitedliability partnership, and KATHERINE M.WINDLER, an individual.

Defendants.

1197944

Case No. 9:08-bk-11457-PC

Chapter 11

Adv. No. 9:ll-ap-01147-PC

CHAPTER 11 TRUSTEE'S MOTION FORPROTECTIVE ORDER AND TOESTABLISH DISCOVERY PROCEDURESTO PROTECT CONFIDENTIALINFORMATION IN THE ADVERSARYPROCEEDING; MEMORANDUM OFPOINTS AND AUTHORITIES ANDDECLARATION OF THOMAS P.JEREMIASSEN IN SUPPORT THEREOF

[Fed. R. Civ. P. 26(c), Fed. R. Bankr. P. 7026and 9037 and 11 U.S.C. § 105(a)]

Hearing:

Date: January 8,2015Time: 10:00 a.m.

Place: United States Bankruptcy Court1415 State Street

Courtroom 201

Santa Barbara, CA

Judge: Peter H. Carroll

Case 9:11-ap-01147-PC Doc 79 Filed 12/08/14 Entered 12/08/14 15:46:11 Desc Main Document of 51

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TABLE OF CONTENTS

Page

MEMORANDUM OF POINTS AND AUTHORITIES 1

I. INTRODUCTION 1

II. PROCEDURAL HISTORY OF THE BANKRUPTCY CASES AND THE

ADVERSARY PROCEEDINGS AGAINST BRYAN CAVE AND

WINDLER 3

A. The EFI ane EFMF Bankruptcy Cases 3

B. The Adversary Proceedings Against Bryan Cave and Windier 4

C. Documents and Books and Records Held by the Trustees and TheirCounsel Contain Confidential Information of Creditors, Investors andThird Parties 5

1. The Debtors' Books and Records 5

2. Bank Records of the Debtors and Other Entities 5

III. THE PROPOSED PROTECTIVE ORDER BALANCES DISCLOSURE

OBLIGATIONS AND PROTECTS THIRD PARTY PRIVACY RIGHTS 6

A. The Court Has the Authority to Issue the Requested Protective Order 7

B. Third Party Confidential Information Must be Protected 9

C. Good Cause Exists For the Issuance of the Protective Order 9

IV. SERVICE OF NOTICE OF THE MOTION ON CREDITORS AND

THIRD PARTIES 10

V. CONCLUSION 10

DECLARATION OF THOMAS P. JEREMIASSEN 12

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CASES

TABLE OF CONTENTS

Page

In re Roman Catholic Archbishop ofPortland in Oregon.

661 F.3d 417,424 (9^ Cir. 2011) 8

STATUTES

11U.S.C.§105 1,8

11 U.S.C.§ 1104(a)(2) 3, 12

Federal Rule ofBankruptcy Procedure 7026 1, 8

Federal Rule of Bankruptcy Procedure 9037 1, 8

Federal Rule of Civil Procedure 26(a)(l)(A)(ii) 6

Federal Rule of Civil Procedure 26(c) 1, 8

OTHER AUTHORITIES

The California Constitution, Article I, § 1 9

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TO THE HONORABLE PETER H. CARROLL, JUDGE OF THE UNITED STATES

BANKRUPTCY COURT, THE OFFICE OF THE UNITED STATES TRUSTEE,

DEFENDANTS BRYAN CAVE LLP AND KATHERINE M. WINDLER, AND ALL OTHER

INTERESTED PARTIES:

Thomas P. Jeremiassen, the duly appointed and acting Chapter 11 Trustee (the "Trustee") for

the bankruptcy estate ofdebtor Estate Financial, Inc. ("EFI" or the "Debtor"), hereby moves this

Court for an order pursuant to Federal Rule of Civil Procedure 26(c), Federal Rule of Bankruptcy

Procedure 7026 and 9037, and 11 U.S.C. § 105 for a protective order and an order establishing

discovery procedures in this adversary proceeding relating to the production of documents and

things containing confidential or potentially confidential information. The Trustee is serving a

notice of this motion (the "Motion") on all creditors in the EFI bankruptcy case and bankruptcy case

ofEstate Financial Mortgage Fund, LLC ("EFMF"). The Trustee's proposed order establishing

procedures relating to the production of confidential information is attached hereto as Exhibit "A"

(the "Protective Order"). The Protective Order was negotiated and has been agreed to by all of the

parties to this adversary proceeding and the related adversary proceeding commenced by Bradley

Sharp, the EFMF Liquidating Trustee, titled Sharp v. Bryan Cave LLP et ah. Adv. No. 11-ap-Ol146-

PC (the "EFMF Adversary Proceeding") (collectively, the "Adversary Proceedings").

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

The EFI and EFMF trustees (the "Trustees") are required to disclose paper and electronic

books, records and documents ofEFI and EFMF (together, the "Records") to the defendants in the

Adversary Proceedings (the "Defendants") as part of initial disclosures and in response to requests

for production of documents and things. The documents, books and records include, among other

things, documents and data in the Debtors' financial records, business and loan files and electronic

data. This Motion, and a companion motion filed by the Liquidating Trustee in the EFMF

Adversary Proceeding, are filed because documents or information that may be disclosed by parties

or third parties in the Adversary Proceedings contain information that may be subject to

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confidentiality rights and privileges (the "Confidential Information").^

Absent entry of the Protective Order, the Trustees cannot produce the Records without

incurring a great expense to review and redact thousands ofpages of Confidential Information on a

case-by-case basis. Additionally, redaction is not feasible with respect certain electronic records for

EFI and EFMF, which include "live" databases.^ Aside from the expense tothe EFI bankruptcy

estate, the Confidential Information may be relevant to the claims and defenses in the Adversary

Proceedings and therefore appropriate for production without redaction pursuant to the Federal Rules

ofCivil Procedure and the Federal Rules ofBankruptcy Procedure."* The Trustees cannot produce

the Confidential Information, even ifdiscoverable and responsive, unless there are adequate

safeguards to protect the Confidential Information from unwarranted public disclosure and the Court

approves those safeguards and procedures.^

The Protective Order would permit the Trustees to turn over all non-privileged, discoverable

and responsive Records, including those containing Confidential Information, to counsel for

Defendants inthe Adversary Proceedings.^

As fully set forth in the Protective Order and the Stipulated Order, the parties will not be

permitted to further disseminate the documents, books and records containing Confidential

Information, except to the persons listed in the Stipulated Order, including clients, attorneys, expert

witnesses, litigation support personnel and others related to litigating the Adversary Proceedings. If

the parties wish to file any document produced in discovery that contains Confidential Information,

the filing party must first properly redact all Confidential Information or obtain a Court order

permitting the frling party to file the document under seal. The Protective Order properly balances

*Jeremiassen Declaration, 12-13.Jeremiassen Declaration, 114.

Jeremiassen Declaration, *114.

Jeremiassen Declaration, ^ 15.


In the interim, so as not to delay the Trustees' production of relevant documents, the parties andcounsel have executed a stipulated protective order (the "Stipulated Order") in the form attachedhereto as "Exhibit B," agreeing to be bound by the terms of the proposed Protective Order.

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the disclosure of information that may be relevant to the issues in the Adversary Proceedings with

maintaining the confidentiality ofsensitive third party information/

Based on the grounds stated herein and in the declaration of Thomas P. Jeremiassen (the

"Jeremiassen Declaration"), the Trustee respectfully requests that the Court enter an order:

1. Granting this Motion;

2. Entering the Protective Order;

3. Granting such other and further relief as the Court deems appropriate.

II. PROCEDURAL HISTORY OF THE BANKRUPTCY CASES AND THE

ADVERSARY PROCEEDINGS AGAINST BRYAN CAVE AND WINDLER

A. The EFI and EFMF Bankruptcy Cases.

On June 25,2008 creditors filed an involuntary chapter 11 petition against EFI. On July 1,

2008, EFMF filed its voluntary chapter 11 petition. At all times prior to the appointment of the

EFMF Trustee, EFI was, pursuant to EFMF's operating agreement, the sole manager ofEFMF. On

July 11,2008, EFI consented to the entry ofan order for relief against it under chapter 11. On July

16,2008, an order for relief was entered in the EFI case. On July 23, 2008, the Court, in both EFI's

and EFMF's chapter 11 cases, entered an Order Directing the Appointment ofChapter 11 Trustee

Pursuant to 11 U.S.C. § 1104(a)(2). On July 25,2008, the Trustees were appointed by the Office of

the United States Trustee ("OUST") and they accepted their appointments on July 28 and 30, 2008.

Thereafter, the Trustees served as the duly qualified and acting chapter 11 trustees oftheir respective

estates.

On September 4,2008, the OUST appointed an official committee of investors/equity

holders in the EFMF bankruptcy case. On October 20, 2008, the OUST appointed an official

committee of unsecured creditors in the EFI Case. No other official committees have been

appointed in either case.

On July 15,2011, the Court entered an order confirming the Joint Chapter 11 Plan of

Liquidation (Dated as ofNovember 18, 2010) in the EFMF case. The plan became effective July 20,

^Jeremiassen Declaration, H18.

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2011 and, accordingly, assets of EFMF have been transferred to the Liquidating Trust ofEstate

Financial Mortgage Fund, LLC, ofwhich Mr. Sharp is the trustee.

B. The Adversary Proceedings Against Brvan Cave and Windier.

On April 28,2011, the Trustees filed complaints against Bryan Cave and Windier, thereby

commencing the Adversary Proceedings in the EFI and EFMF bankruptcy cases.

On May 31,2011, the Defendants filed motions to dismiss the complaints in the Adversary

Proceedings pursuant to Rule 7012 of the Federal Rules of Bankruptcy Procedure (the "Motions to

Dismiss"). On September 23, 2011, the Bankruptcy Court conducted a hearing on the Motions to

Dismiss, and on October 11,2011, the Bankruptcy Court entered orders (the "BK Orders") granting

the Motions to Dismiss without leave to amend.^

On October 25,2011, the Trustees filed their objections to the Bankruptcy Court's proposed

findings of fact and conclusions of law in connection with the BK Orders. On March 23, 2012 the

BK Orders were referred to the District Court for a de novo review. On May 7,2012 the District

Court entered orders (the "Dismissal Orders") overruling the Trustees' objections, accepting the BK

Orders and dismissing the Adversary Proceedings without leave to amend.

On May 31,2012, the Trustees filed notices of appeal of the Dismissal Orders to the United

States Court of Appeals for the Ninth Circuit.

On February 14,2014, a Ninth Circuit Panel heard oral argument on the Trustees' appeals of

the Dismissal Orders. On March 24,2014, the Panel issued an unpublished Memorandum reversing

the Dismissal Orders and remanding the Adversary Proceedings to the District Court.

On April 7, 2014, Defendants filed a Petition for Panel Rehearing and Suggestion for

Rehearing En Banc. On May 21, 2014, the Ninth Circuit Panel issued an Order denying the petition.

On June 6,2014, in Sharp v. Bryan Cave et al. Case No. 2:12-cv-02495-SJO, the Court set a

status conference for June 23,2014 and directed the parties to file a joint status report. On July 1,

2014, the District Court entered an Order reinstating the reference to the Bankruptcy Court and

remanding the Adversary Proceedings.

The BK Orders asked that the dismissal be entered by the District Court.

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The Bankruptcy Court has not yet set status conferences in the Adversary Proceedings

following remand.

C. Documents and Books and Records Held bv the Trustees and Their Counsel

Contain Confidential Information of Creditors, Investors and Third Parties

The Trustees and their professionals have possession ofall known documents, books and

records (in both paper and electronic form) ofEFI and EFMF. Many of those records contain

Confidential Information. A brief description oftwo of the categories of documents, books and

records is discussed below, together with an overview of the Confidential Information included in

those materials.

1. The Debtors' Books and Records

Among EFI and EFMFs' records are books and records which include files relating to

investors, lenders, borrowers and vendors.^ The paper and electronic files contain information such

as home addresses, telephone numbers, employment and salary information, net worth information,

social security numbers, and other Confidential Information.

The accounting and financial software and files for the Debtors also contain Confidential

Information.'* The Debtors used Quick Books and aproprietary software called The Mortgage

Office. Third party confidential information is contained in the Quick Books and The Mortgage

Office electronic records for EFI borrowers, EFI lenders, EFMF members, and some vendors,

including personal contact information, social security numbers, taxpayer identification numbers,

1 "7

bank account information, routing numbers and account numbers.

2. Bank Records of the Debtors and Other Entities

Heritage Oaks Bank has turned over copies of bank statements, checks, cashier's checks and

wire transfers for EFI and EFMF's bank accounts.'^ The cancelled checks and wire transfer

^Jeremiassen Declaration, ^12.Jeremiassen Declaration, ^12.

" Jeremiassen Declaration, T} 12.Jeremiassen Declaration, ^ 12.

1 ^


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documents include names, addresses, telephone numbers, bank account and routing numbers and

other potentially confidential information of creditors, investors and third parties.

III. THE PROPOSED PROTECTIVE ORDER BALANCES DISCLOSURE

OBLIGATIONS AND PROTECTS THIRD PARTY PRIVACY RIGHTS

This Motion is made to protect Confidential Information, including third party Confidential

Information included in EFI and EFMF records, as discussed above.

Formal written discovery has been served onthe Trustees in the Adversary Proceedings.'̂

The Trustees also have obligations under the Federal Rules of Civil Procedure to provide "a copy—

or a description by category and location—of all documents, electronically stored information, and

tangible things that the disclosing party has in its possession, custody, or control and may use to

supports its claims or defenses, unless the use would be solely for impeachment." Fed. R. Civ. P.

26(a)(l)(A)(ii)

The Trustees have not yet produced documents that may include Confidential Information.'̂

As stated above, certain records, including electronic Quick Books and The Mortgage Office

1 *7

records, may not be readily redacted.

The respective counsel for the Trustees and the Defendants in the Adversary Proceedings

have met and conferred in an effort to resolve issues relating to the production of discoverable paper

and electronically stored documents that may contain Confidential Information. That process

resulted in the mutually acceptable proposed Protective Order which is Exhibit A to this Motion.

Although the Trustees are required to produce to the Defendants documents upon which the

Trustees may rely to support their claim, the Trustees must also protect third party Confidential

Information contained in the Records. The Protective Order attempts to balance the Trustees'

discovery obligations with their competing obligation to protect the Confidential Information.'̂

Jeremiassen Declaration, 12.


Jeremiassen Declaration, T| 12.1 n

Jeremiassen Declaration, H14.

Jeremiassen Declaration, HH 13 and 18.

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Without the Protective Order, the Trustees would be required to redact (and sometimes

heavily redact) thousands ofpages ofdocuments prior to producing them to the Defendants in the

Adversary Proceedings.'̂ This would impose a significant expense to the EFI and EFMF

bankruptcy estates and cause substantial delay. '̂' In addition, although the redactions would protect

the Confidential Information, one or more of the parties may claim that the redacted information

may be relevant to the claims and defenses in the Adversary Proceedings and therefore that such

information isproperly discoverable. '̂ Additionally, the Trustees are inpossession ofEFI and

EFMF's electronic Quick Books and The Mortgage Office records, which are "live" databases, and

therefore virtually impossible toredact intheir current electronic form.^^

In order to protect the confidentiality of third parties, and pursuant to the Protective Order, he

parties receiving documents or records containing Confidential Information will barred from the

further disclosure or dissemination of such material. If the parties wish to file any document

obtained through the above-described process, then the party wishing to file such a document must

properly and adequately redact the documents themselves, or obtain a Court order permitting the

party to file such information under seal. Pursuant to the Protective Order, the parties will not be

permitted to file, transfer or publicly disclose the documents containing the Confidential

Information, or the Confidential Information itself, without first complying with the terms of the

Protective Order, so that appropriate safeguards as to the Confidential Information are in place.

A. The Court has the Authority to Issue the Requested Protective Order

The Federal Rules ofCivil Procedure contemplate issuance of protective orders in discovery:

(c) Protective Orders. {\) In General A party or any person from whom discovery is sought

may move for a protective order in the court where the action is pending—or as an alternative

on matters relating to a deposition, in the court for the district where the deposition will be

taken. The motion must include a certification that the movant has in good faith conferred or

attempted to confer with other affected parties in an effort to resolve the dispute without

Jeremiassen Declaration, T| 14.on

Jeremiassen Declaration, ^ 14. .

Jeremiassen Declaration, 14-15.00


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court action. The court may, for good cause, issue an order to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense, including one or more

of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including

time and place, for the disclosure or discovery; (C) prescribing a discovery method other than

the one selected by the party seeking discovery...

Fed. R. Civ. P. 26(c).

Federal Rule of Bankruptcy Procedure 9037(c) states that "[t]he court may order that a filing

be made under seal without redaction. The court may later unseal the filing or order the entity that

made the jfiling to file a redacted version for the public record."

Federal Rule of Bankruptcy Procedure 9037(d) states that "[f]or cause, the court may by

order in a case under the Code: (1) require redaction ofadditional information; or (2) limit or

prohibit a nonparty's remote electronic access to a document filed with the court." Federal Rule of

Bankruptcy Procedure 9037(e) states that "[a]n entity making a redacted filing may also file an

unredacted copy under seal. The court must retain the unredacted copy as part of the record."While courts generally make a finding of good cause before issuing a protective order, acourt need not do so where (as here) the parties stipulate to such an order. When theprotective order "was a stipulated order and no party ha[s] made a 'good cause' showing,"then "the burden ofproof... remain[s] with the party seeking protection." Phillips v. GeneralMotors Corp., 307 F.3d 1206,1211 n. 1 (9th Cir. 2002). Ifa party takes steps to releasedocuments subject to a stipulated order, the party opposing disclosure has the burden ofestablishing that there is good cause to continue the protection of the discovery material.

In re Roman Catholic Archbishop ofPortland in Oregon, 661 F.3d 417,424 (9th Cir. 2011).

"Accordingly, in determining whether to protect discovery materials from disclosure underRule 26(c), a court must not only consider whether the party seeking protection has shownparticularized harm, and whether the balance ofpublic and private interests weighs in favor,but also keep in mind the possibility of redacting sensitive material."

Roman Catholic Archbishop at 425.

In conjunction with Federal Rules of Civil Procedure 26(c), Federal Rules ofBankruptcy

Procedure 7026 and 9037,11 U.S.C. § 105(a) and the wide discretion of the Court in controlling

discovery, this Court is empowered to issue the Protective Order and to permit the Trustees to enter

into the Stipulated Order with the Defendants in the Adversary Proceedings.

///

III

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B. Third Party Confidential Information Must be Protected

The Federal Rules ofBankruptcy Procedure prohibit the filing of certain Confidential

Information without redaction. See, e.g., Fed. R. Bankr. P. 9037(a): "[ujnless the court orders

otherwise, in an electronic or paper filing made with the court that contains an individual's social-

security number, taxpayer-identification number, or birth date, the name of an individual, other than

the debtor, known to be and identified as a minor, or a financial-account number, a party or non-

party making the filing may include only: (1) the last four digits of the social-security number; (2)

the year of the individual's birth; (3) the minor's initials; and (4) the last four digits of the financial-

account number." The California Constitution, Article I, § 1 and case law interpreting that Article

also establish a right to privacy and protection for certain Confidential Information. Given that the

Confidential Information contains financial information, social security numbers, bank and financial

account numbers and information and other private information ofcreditors and third parties, the

Confidential Information must be protected.

C. Good Cause Exists For the Issuance of the Protective Order

The requested Protective Order allows for the production of documents, books and records in

the Adversary Proceedings, but properly restricts their use to those Adversary Proceedings, and prior

to filing requires either redaction or an order permitting filing under seal. This method is the most

efficient process to conduct discovery in these cases, given the amount of documents and things, the

potential costs of redaction, the potential that one or more of the parties may claim that the redacted

information may support claims or defenses, and given that items such as the electronic Quick Books

and The Mortgage Office records cannot readily be redacted intheir current form.^^

The Protective Order balances the production of documents relevant to claims and defenses

in the Adversary Proceedings with the privacy interests and rights of third parties whose information

may be contained inthe documents. '̂̂ The Protective Order also balances the need toprovide

safeguards as to the Confidential Information with the potentially great costs that redaction of each

Jeremiassen Declaration, 14-15.

Jeremiassen Declaration, Iffl 13 and 18.

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page each document would impose, and the issue that electronic databases are not readily redactable

m their current form.

If the Motion is not granted and the Protective Order is not entered, the Trustees would be

forced to commence document production only after lengthy and costly redaction, which would still

not resolve all issues inregard tothe documents.^^ Issues would remain after redaction given that

one or more of the parties may claim that some of the redacted information may be pertinent to

claims and defenses, and given that certain electronic information (i.e, Quick Books and The

Mortgage Office databases) cannot bereadily redacted intheir current form.^^

IV. SERVICE OF NOTICE OF THE MOTION ON CREDITORS AND THIRD PARTIES

Because the Motion has a potential impact on the Confidential Information of creditors,

borrowers, lenders, investors, and other third parties, and third parties, notice of the Motion will be

served on all creditors that have filed proofs of claim in the EFI and EFMF bankruptcy cases or that

were scheduled as creditors by the debtors.^® Notice ofthe Motion also will be served on all third

parties that the Trustees have identified in the electronic Quick Books and The Mortgage Office

records that are potentially impacted by the Motion provided that those records include contact

information for those third parties.^^

V. CONCLUSION

Based on the grounds stated herein and in the Jeremiassen Declaration, the Trustee

respectfully requests that the Court enter an order:

1. Granting this Motion;

///

///

in


Jeremiassen Declaration, ^14-15.

Jeremiassen Declaration, ^14-15.

Jeremiassen Declaration, H20.


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2. Entering the Protective Order; and

3. Granting such other and further relief as the Court deems appropriate.

Dated: December 8, 2014 Respectfully submitted,

EZRA BRUTZKUS GUBNER LLP

1197944

COREY R,6i4EfiERSpecial Litigation Counsel for Plaintiff,Thomas P. Jeremiassen, Chapter 11 Trustee

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DECLARATION OF THOMAS P. JEREMIASSEN

I, Thomas P. Jeremiassen, declare as follows:

1. I am the duly appointed and acting Chapter 11 trustee for the bankruptcy estate of

debtor Estate Financial, Inc. ("EFT').

2. Other than as specifically identified herein, each of the facts contained in this

declaration is based on my personal knowledge and, if called as a witness, I could and would

competently testify as to these facts.

3. Any capitalized terms used but not defined herein shall have the same meaning as is

affixed to them in the Motion.

4. On July 23,2008, the Court entered an Order Directing the Appointment ofChapter

11 Trustee Pursuant to 11 U.S.C. § 1104(a)(2). On July 25,2008,1 was appointed by the Office of

the United States Trustee ("OUSP') and accepted my appointment on July 30,2008.

5. On April 28,2011, through my special litigation counsel, 1 filed a complaint against

Bryan Cave and Windier, thereby commencing the EFl Adversary Proceeding in the EFl bankruptcy

case. 1am informed that Bradley Sharp, the Liquidating Trustee in the EFMF bankruptcy case, also

filed a complaint against Bryan Cave and Windier that same day.

6. On May 31,2011, the Defendants filed motions to dismiss the complaints in the

Adversary Proceedings pursuant to Rule 7012 ofthe Federal Rules of Bankruptcy Procedure (the

"Motions to Dismiss"). On September 23,2011, the Bankruptcy Court conducted a hearing on the

Motions to Dismiss, and on October 11,2011, the Bankruptcy Court entered orders (the "BK

Orders") granting the Motions to Dismiss without leave to amend.

7. On October 25, 2011, through our special litigation counsel, the Liquidating Trustee

and 1filed our objections to the Bankruptcy Court's proposed findings of fact and conclusions of law

in connection with the BK Orders. On March 23, 2012 the BK Orders were referred to the District

Court for a de novo review. On May 7,2012 the District Court entered orders (the "Dismissal

Orders") overruling the objections, accepting the BK Orders and dismissing the Adversary

Proceedings without leave to amend.

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8. On May 31,2012, through our special litigation counsel, the Liquidating Trustee and

I filed notices of appeal of the Dismissal Orders to the United States Court of Appeals for the Ninth

Circuit.

9. On February 14,2014, a Ninth Circuit Panel heard oral argument on the appeals of

the Dismissal Orders. On March 24,2014, the Panel issued an unpublishedMemorandum reversing

the Dismissal Orders and remanding the Adversary Proceedings to the District Court.

10. On April 7,2014, Defendants filed a Petition for Panel Rehearing and Suggestion for

Rehearing En Banc. On May 21,2014, the Ninth Circuit Panel issued an Order denying the petition.

11. On June 6,2014, in Sharp v. Bryan Cave et al. Case No. 2:12-cv-02495-SJO, the

Court set a status conference for June 23,2014 and directed the parties to file a joint status report.

On July 1,2014, the District Court entered an Order reinstating the reference to the Bankruptcy

Court and remanding the Adversary Proceedings. The Bankruptcy Court has not yet set status

conferences in the Adversary Proceedings following remand.

12.1 am required to disclose paper and electronic books, records and documents of EFI

and EFMF (together, the "Records") to the defendants in the EFI Adversary Proceeding (the

"Defendants") as part of initial disclosures and in response to requests for production of documents

and things that have been served on me in the EFI Adversary Proceeding. The documents, books

and records include, among other things, documents and data in the Debtors' financial records,

business and loan files and electronic data. I have not yet produced documents that may include

Confidential Information. Among EFI and EFMFs' records are books and records which include

files relating to investors, lenders, borrowers and vendors. The paper and electronic files contain

information such as home addresses, telephone numbers, employment and salary information, net

worth information, social security numbers, and other Confidential Information. The accounting and

financial software and files for the Debtors also contain Confidential Information. The Debtors used

Quick Books and a proprietary software called The Mortgage Office. Third party confidential

information is contained in the Quick Books and The Mortgage Office electronic records for EFI

borrowers, EFI lenders, EFMF members, and some vendors, including personal contact information,

social security numbers, taxpayer identification numbers, bank account information, routing

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numbers and account numbers. Heritage Oaks Bank has turned over copies of bank statements,

checks, cashier's checks and wire transfers for EFI and EFMF's bank accounts. The cancelled

checks and wire transfer documents include names, addresses, telephone numbers, bank account and

routing numbers and other potentially confidential information ofcreditors, investors and third

parties.

13. The Motion is filed because documents or information that may be disclosed by

parties or third parties in the Adversary Proceedings contain information that may be subject to the

Confidential Information. AlthoughI am required to produce to the Defendantsdocumentsupon

which I may rely to support the claims against Defendants, I must also protect third party

Confidential Information contained in the Records. The Protective Order attempts to balance my

discovery obligations with the competing obligation to protect the Confidential Information.

14. Without the Protective Order, my counsel would be required to redact (and

sometimes heavily redact) thousands ofpages ofdocuments prior to producing them to the

Defendants in the EFI Adversary Proceeding. This would impose a significant expense to the EFI

bankruptcy estate and cause substantial delay. In addition, although the redactions would protect the

Confidential Information, one or more ofthe parties may claim that the redacted information may be

relevant to the claims and defenses in the Adversary Proceedings and therefore that such information

is properly discoverable. Additionally, I am in possession ofEFI and EFMF's electronic Quick

Books and The Mortgage Office records, which are "live" databases, and therefore virtually

impossible to redact in their current electronic form.

15. Aside fi*om the expense to the EFI bankruptcy estate, the Confidential Information

may be relevant to the claims and defenses in the Adversary Proceedings and therefore appropriate

for production without redaction pursuant to the Federal Rules of Civil Procedure and the Federal

Rules of Bankruptcy Procedure. I cannot produce the Confidential Information, even ifdiscoverable

and responsive, unless there are adequate safeguards to protect the Confidential Information fi-om

unwarranted public disclosure and the Court approves those safeguards and procedures.

16. The Protective Order would permit me to turn over all non-privileged, discoverable

and responsive Records, including those containing Confidential Information, to counsel for

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Defendants in the Adversary Proceedings. As fully set forth in the Protective Order and the

Stipulated Order, the parties will not be permitted to further disseminate the documents, books and

records containing Confidential Information, except to the persons listed in the Stipulated Order,

including clients, attorneys, expert witnesses, litigation support personnel and others related to

litigating the Adversary Proceedings. If the parties wish to file any document produced in discovery

that contains Confidential Information, the filing party must first properly redact all Confidential

Information or obtain a Court order permitting the filing party to file the document under seal.

17. The requested Protective Order allows for the production of documents, books and

records in the Adversary Proceedings, but properly restricts their use to those Adversary

Proceedings, and prior to filing requires either redaction or an order permitting filing under seal.

This method is the most efficient process to conduct discovery in these cases, given the amount of

documents and things, the potential costs of redaction, the potential that one or more of the parties

may claim that the redacted information may support claims or defenses, and given that items such

as the electronic Quick Books and The Mortgage Office records cannot readily be redacted in their

current form.

18. The Protective Order balances the production of documents relevant to claims and

defenses in the Adversary Proceedings with the privacy interests and rights of third parties whose

information may be contained in the documents. The Protective Order also balances the need to

provide safeguards as to the Confidential Information with the potentially great costs that redaction

of each page each document would impose, and the issue that electronic databases are not readily

redactable in their current form.

19. If the Motion is not granted and the Protective Order is not entered, I would be forced

to commence document production only after lengthy and costly redaction, which would still not

resolve all issues in regard to the documents. Issues would remain after redaction given that one or

more of the parties may claim that some of the redacted information may be pertinent to claims and

defenses, and given that certain electronic information (i.e, Quick Books and The Mortgage Office

databases) cannot be readily redacted in their current form.

20. Because the Motion has a potential impact on the Confidential Information of

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creditors,borrowers, lenders, investors,and other third parties, and third parties, notice of the

Motion will be served on all creditors that have filed proofs ofclaim in the EFI and EFMF

bankruptcycases or that were scheduledas creditorsby the debtors. Notice of the Motion also will

be served on all third parties that have been identifiedin the electronic Quick Books and The

Mortgage Office records that are potentially impacted by the Motion provided that those records

include contact information for those third parties.

I declareunder penaltyofperjuryunder the laws ofthe United States ofAmerica that the

foregoing is true and correct.

Executed on December 5,2014, at Agoura Hills, California.

THOMAS P. JEREMIASSEN

16



CENTRAL DISTRICT OF CALIFORNIA - NORTHERN DIVISION

In re ESTATE FINANCIAL, INC.

Debtor

THOMAS P. JEREMIASSEN, Chapter 11Trustee,

Plaintiff,

V.

BRYAN CAVE LLP, a professionallimited liability partnership, andKATHERINE M. WINDLER, anindividual.

Defendants.

Case No. 9:08-bk-l 1457-PC

Chapter 11


PROTECTIVE ORDER REGARDINGDISCOVERY AND USE OFCONFIDENTIAL INFORMATION

Honorable Peter H. Carroll

PlaintiffThomas P. Jeremiassen, Chapter 11 Trustee (the "Trustee" or "Plaintiff")

ofthe bankruptcy estate ("the "Estate") ofdebtor Estate Financial, Inc. ("EFI") and

Defendants Bryan Cave, LLP and Katherine M. Windier (collectively, "Defendants"), by

and through their respective attomeys ofrecord in this adversary proceeding, filed a Joint

Motion /Stipulation for Protective Order. (Plaintiffand Defendants are sometimes

referred to singularly as a "Party" and collectively as the "Parties.")

The Parties anticipate that discovery in this adversaryproceeding will involve the

production ofbusiness, commercial or financial information protected by privacy laws,

and other confidential information, as contemplated by Federal Rule ofCivil Procedure

26 and applicable Califomia law, including the Constitution ofthe State ofCalifornia and

California Civil Code §§ 1798.80-1798.84. At least some of the documents and

information that may be sought through discovery in this adversaryproceeding may

qualify as sensitive, personal business, commercial or financial information or other non-

EXHIBIT "A" 17


public information that would justify sealing, redaction or protection fromproduction

beyond the scope ofthis adversaryproceeding. Accordingly, the Parties seek a protective

order pursuant to Federal Rules ofCivil Procedure26(c) and 29. The Parties frirther

agreethat goodcauseexists to entertheproposed Protective Orderbecause (1) die Parties

to this adversary proceeding either have sought or might seek the discovery ofcertain

information in this adversary proceeding that the Trustee believes is sensitive or

confidential, including personal business, commercial, financial or other private

information ofthird persons who are not parties to this adversary proceeding C*Non-

Parties"), including borrowers, consumers, investors and/or lenders, who did business

with the Estate, EFI and/or Estate Financial MortgageFund, LLC C*EFMF"); (2) the

Trustee believes that unrestricted disclosure or dissemination ofsuch information could

violate the privacy rights ofsuch non-partiesand could expose the Parties to liability to

such non-parties or governmental agencies; (3) the Parties desire an efficient and

practicable means to designate such information confidential and control its disclosure

and dissemination; and (4) the Parties have agreed to such means as set forth in this

proposed Protective Order.

Good cause appearing, the Court hereby GRANTS the Parties' Joint Motion /

Stipulation and enters the following Protective Order:

A. DEFINITIONS

1. As used herein, the term "confidential information" means: (a) information

subject to federal or state privacy rights; (b) trade secrets (as defined in California Civil

Code § 3426.1(d)); (c) other confidential research, development or commercial

information, the disclosure ofwhich might result in competitive harm and for which the

designating Party or Non-Party has taken reasonable measures to maintain their

confidential, non-public status; and; (d) data derived from such confidential information,

including any summaries, compilations, quotes, or paraphrases thereof.

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2. The following information ofNon-Parties, including both individuals and

entities ("Personal Information") also constitutesconfidentialinformation: (a) social

securitynumbers, tax payer identification numbers, bankaccoimt numbers, credit card

numbers, driver's license numbers, and dates ofbirth; (b) tax returns, K-1 forms, 1099

forms, W-2 forms, real property closing statements, employee records, employee files,

loan balance statements, bank statements, credit card account statements, investor

account statements, balance sheets, income statements and other financial statements,

except that summaries, compilations, reports,or other materialscontainingdata derived

firom documents identified in this subparagraph (b) shall not be presumedto be

confidential to the extent that the data is aggregated, summarized, anonymized, or

otherwise presented in a manner that does not connect a Non-Party's own information to

that Non-Party.

3. As used herein, the terms "document," "documents," "tangible things," and

'Wterials" include all ofthose things identified in Federal Rule ofCivil Procedure 34(a)

and Federal Rule ofEvidence 1001, and include, but are not limited to, records, exhibits,

reports, samples, transcripts, video or audio recordings, disks, affidavits, briefs,

summaries, notes, abstracts, drawings, company records and reports, answers to

interrogatories, responses to requests for admissions, and motions, including copies or

computer-stored versions ofany ofthe foregoing.

B. DESIGNATION OF CONFIDENTIAL INFORMATION

1. This Protective Order applies to all discoveryresponses, documents,

testimony, and other materials containing confidential information (identified in \ A.2

above or designated by a Party or any Non-Party as confidential, in the manner described

in ^ B.3 below, disclosed in this adversary proceeding whether by order ofthe Court, by

response to questions in a deposition, written interrogatories, requests for the production

ofdocuments and other tangible things, requests for admission, response to a subpoena,

or any other discovery undertaken in this adversaryproceeding, and to information and

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documents voluntarily produced to a Party.

2. A Party or any Non-Party that designates information or documents as

confidential may do so only when such Party or Non-Party in good l^ith believes the

information is confidential or the document contains information that is confidential. A

Party or Non-Party designating informationor documentsas confidential shall take

reasonable care to designate only that information, documents, items or oral or written

communications that the Party or Non-Party reasonably believes to qualify for protection.

If it comes to a Party's or a Non-Party's attention that information or documents that it

designated for protection did not qualifyor no longerqualifies for protection, that Party

or Non-Party should promptly notify all other Parties (and, ifapplicable, any affected

Non-Party) that it is withdrawing the designation.

3. Any Party or Non-Party may protect informationor documents it believes

constitute or include confidential information (and which is not already defined as

confidential informationas provided in ^ A. 2 above)by so designatingsuch

information or documents prior to or at the time oftheir disclosure. Such designation

shall be accomplished by placing the notation CONFIDENTIAL on every page ofeach

document or portion thereofso designated. In the case ofconfidential information

disclosed in a non-paper medium (e.g., videotape, audiotape,computer disks, etc.), the

notation CONFIDENTIAL shall be affixed to the outside ofthe medium or its container

so as to clearly give notice ofthe designation.

4. Personal Infonnation (as provided in ^ A. 2 above) shall be deemed to be

^^confidential" regardless ofwhether the discovery in which it appears is marked as such.

Personal Information (as provided in ^ A.2 above) need not be redacted until and unless

a Party seeks to disclose documents or other materials containing or constituting Personal

Information to anyone other than Qualified Persons, at which point the Party seeking to

disclose the materials shall redact them as necessary to comply with this Protective

Order. The Parties shall take reasonable steps to insure that all confidential information

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produced to each other for inspectionand copying is afforded the protections intended by

this Protective Order. It is the responsibility ofthe producingParty to identify such

information and documents to the receiving Party unless the information and documents

are deemed confidential as provided under ^ A.2.

5. Except as set forth in this Protective Order, information and documents

designated as confidential as provided in ^ A.2 and B. 3 above (''Confidential

Information") shall be used solely for the purposes ofthis adversary proceeding and all

responses thereto (including appeals and retrials) and shall not be used for any other

purpose, including, without limitation, any business, commercial or financialpurpose, or

dissemination to the media. Confidential Information shall not be disclosed to anyone

other than those persons permitted by the Protective Order, excq)t as may be ordered by

the Court or agreed to in writing by the producing Party or Non-Party. Ifany

Confidential Information is thereafter used by a Party to which it has been produced or

disclosed as part ofa pleading filed or lodged with the Court in this adversaryproceeding

or in a response to a discovery request in this adversary proceeding, the Party using that

information or document shall take all reasonable steps to preserve the continued

confidentiality ofthat Confidential Information.

6. The terms ofthis Protective Order shall not apply to or restrict the

disclosure or use by a producing Party or its counselofthe producing Party's own

confidential information or documents. The voluntary disclosure, other than pursuant to

this Protective Order, ofconfidential information or a confidential document by a

producing Party, however, may provide grounds for an opposing Party to challenge the

confidential designation ofthe same pursuant to Section E, below.

7. Nothing in this Protective Order shall bar or otherwise restrict any attorney

firom rendering advice to his/her client, or such client's insurers, or such client's insurers'

counsel with respect to this adversary proceeding and, in the course ofrendering advice,

referring to or relying generally on the examination ofconfidential information produced

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or exchanged, so long as the client, insurer, and counsel have been provided with a copy

ofthis Protective Order and advised that their use ofconfidential information is governed

by its terms.

8. A Party serving a subpoena or demanding discovery from any Non-Party or

any other person or entity shall serve a copy ofthis Protective Order on such Non-Party

or other person or entity concurrentlywith the subpoenaor discovery demand.

C. DISCLOSURE OF DESIGNATED CONFIDENTIAL INFORMATION

1. The Parties, counsel for the Parties, and all persons to whom confidential

information or a confid^tial document is disclosed under the terms ofthis Protective

Order shall maintain all Confidential Information in confidence and shall not disclose

such information or documents, directlyor indirectly, to any person or entity except as

provided in this Protective Order.

2. Access to Confidential Information shall be limited to the following

persons (collectively, "Qualified Persons")-

(a) The attorneys ofrecordfor the Parties (including both outsidecounseland

in-house counsel) whoareactively engaged in the conduct ofthis litigation

or advising in connection withthis litigation, as wellas all oftheirpartners,

associates, employees, andstaff and organizations retained by law firms or

attorneys ofrecord to any Partyto provide litigation supportand/orjury

consulting services in this adversaryproceeding;

(b) Any Party, any employee or representative of theproducing or receiving

Party, the insurerof any Party, and counsel for the insurerof any Party,

provided that, with respect to any receivingParty, employeesand

representatives ofthe receiving Partypermitted accessto Confidential

Information shall be limited to only those persons who the receiving Party

believes in good faith need access to the information in connection with the

adversary proceeding;

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(c) The Court and personnel ofor appointed by any courthavingjurisdiction

over any proceedingsinvolvedin this adversary proceeding;

(d) Court reporters, videographers, and their staffs to whomdisclosure is

reasonably necessary for the purposesofthis adversary proceeding;

(e) Consultantsand experts retained in this adversary proceedingor in the

underlying bankruptcy case by the attorneys ofrecord or their partners,

associates, employees or staffwho are responsible for assisting in the

preparation, trial or appeal ofthis adversaryproceeding, insofar as the

attorneys ofrecord may deem it necessary for the preparation or trial of the

adversaryproceeding to consult with such experts or consultants, and insofar

as such consultants and experts executethe DeclarationConfirming

Compliancewith Stipulated Protective Order Re ConfidentialInformation

C'ComplianceDeclaration")attached to this Protective Order;

(f) Any current employees, directors, agents or Federal Rule ofCivil Procedure

30(b)(6) designees ofa Party;

(g) Any former employee ofa designatingParty, who executes the Compliance

Declaration, that such disclosing Party reasonably and in good faith believes

authored, received, or became familiar with the Confidential Information in

the ordinary course ofhis or her employmentby the designating Party;

(h) Any author, original source, or prior recipient ofthe confidential

information;

(i) Deposition witnesses;

(1) Any other person or entity as to whom the Parties agree in writing; and

(k) Any other person as to whom the Court orders should have access to the

confidential information.

3. A copy ofany Compliance Declaration executed by any person required

under this Protective Order shall be maintained by counsel for the Party making the

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disclosure ofanother Party's or Non-Party's designated confidentialinformation.

D. DEPOSITIONS

1. Withrespectto the examination of witnesses uponoral deposition, when

Confidential Information is supplied to the deponent, or when the deponent's testimony

contains, reflects, or comments on ConfidentialInformation, the deposition reporter

and/orvideooperator shallbe informed ofthis Protective Order by the Partyseeking to

use or disclosethe confidential information. The reporterand/orvideo operatorthen

shall placeon the coverofanydeposition transcript or video that contains or includes any

designated confidential information or dociunents the words "CONTAINS

CONFIDENTIAL INFORMATION SUBJECT TO A COURT PROTECTIVE ORDER."

Counsel for the Parties then shall take reasonable steps to preventany portions ofany

deposition transcript (or attached documents thatare or contain Confidential Information)

or video designated CONFIDENTIAL from being disclosed to any person, except as


2. All testimony at a deposition shall be presumed to be designated

CONFIDENTIAL ifthis Protective Order is invokedat the deposition until the specific

pages of the transcript containing designated confidential information are identified and

designatedCONFIDENTIAL as providedbelow. The designating Party or Non-Party

shall, within thirty (30) days after receivinga copy ofthe depositiontranscript,provide

all Parties (and ifapplicable, the Non-Party) witha written list ofthe page(s)ofthe

deposition transcript, and anyexhibits attached thereto, that the Partyor Non-Party has

designatedas confidential. Onlypages containing confidential information shall be so

designated.

3. IfConfidential Information is to be discussed or disclosed in a deposition,

any Party or Non-Party claiming such confidentiality may exclude from the room any

person who is not entitledto receivesuchconfidential information duringthat portion of

the deposition in which the ConfidentialInformation is actually discussed or disclosed. If

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Confidential Information is to be discussed or disclosed at a hearing or at trial, a Party

may request that the Court exclude fromthe courtroomany person who is not entitled to

receive such ConfidentialInformation during that portion ofthe hearing or trial in which

the Confidential Information is actually discussed or disclosed.

E. CHALLENGING A DESIGNATION

1. The Parties shall activelywork to avoid the unnecessary designation of

information and documentsproduced in discovery in this action. Ifonly a portion ofa

document contains confidential information, and ifreasonably feasible, only that portion

shall be designated as confidential.

2. In the event that counsel for a Party at any time believes that designated

confidential information or documents should not be so designated, such counsel shall

meet and confer with counsel for the other Party(ies) in an attempt to resolve the dispute.

3. If counsel for the Parties (including, if applicable, the Non-Party) are

unable to resolve the dispute, then counsel for the Party designatingparticular

information or a document as confidential may make an application to this Court, to be

lodged conditionally under seal, for an Order that the information or document subject to

the dispute be designated "CONFIDENTIAL" under this ProtectiveOrder. Such relief

must be sou^t within ten (10) days ofany notification by any Party to the dispute over

the designation that an impasse has been reached. If such relief is timely sought, the

challengeddesignation and categorization shall remain in effect until a decision is

rendered by the Court or agreement ofthe designating Party. Ifno relief is timely sought,

the information shall be deemed to have the designation the non-designating Party to the

dispute asserts is appropriate.

4. The designating Party (or, ifapplicable, Non-Party) bears the burden of

establishing that the information or documents designated as confidential are entitled to

protection.

5. No Party shall be obliged to challenge the propriety ofa confidential

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designation, and a failure to do so shall not precludea subsequentchallengeto the

propriety ofsuch designation.

F. INADVERTENT FAILURE TO DESIGNATE

1. The inadvertent failure to designate confidential information or documents

as CONFIDENTIAL prior to or at the time ofdisclosureshall not operate as a waiver ofa

Party or Non-Party's right to designate such information or documents as

CONFIDENTIAL after such disclosure.

2. In the event that confidential information or documents are designated as

CONFIDENTIAL after disclosure, the receiving Party shall employ reasonable efforts to

ensure that all such previously disclosed informationor documents are subsequently

treated as confidential pursuant to the terms ofthis ProtectiveOrder.

3. Should any document or infonnation designated as CONFIDENTIAL be

disclosed, through inadvertence or otherwise, to any person or entity not authorized to see

such materials under this Protective Order, then the disclosing Party shall immediately

procure the retum ofthe material, and inform counsel for the designating Party (or, if

applicable, the Non-Party) whose confidential infonnation or document has thus been

disclosed ofall relevant informationconcerningthe nature and circumstances ofsuch

disclosure. The disclosing Party shall also take all reasonable measures promptly to

ensure that no further or greater unauthorized disclosure ofthe confidential information

or document occurs.

G. CUSTODY AND DISPOSITIQN OF CONFIDENTIAL INFORMATION

1. Information and documents designated as confidential shall be maintained

in the custody ofcounsel for the Parties, except for information in the custody of: (a) the

Court; (b) any court reporter transcribing testimony given in this adversary proceeding,

for the limited purpose ofrenderinghis or her normal transcribing services; and (c)

persons to whom the confidential information or document may be disclosed pursuant to

the terms ofthe Protective Order, including consultantsand experts, to the extent

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necessary for their involvement in the adversaryproceeding. Except for the Court, a

person with custodyof information or documents designated as confidential shall keep it

in a manner that limits accessto it to only thosepersons entitledunderthis Protective

Order to examine such information or documents.

2. Unlessagreedotherwise in writing, at the conclusion ofthis adversary

proceeding, whether by settlementor final decisionofthe Court of last resort, the Parties,

counsel for the Parties, and all persons who executedthe ComplianceDeclaration agree

that they will destroyor returnto the producing Party(or ifapplicable the non-party)all

copies ofany documents, other than attorney work product, containing designated

confidential informationproducedby a Party or Non-Party. Notwithstandingthe

foregoing, counsel ofrecord shall be permitted to retain a file copy ofall pre-trial, trial,

and post-trial pleadings, exhibits, depositions and depositionexhibits, and document

databases. Such file copies shall be kept under the conditionsfor maintaining

confidential information and documents as set forth above.

H. MISCELLANEOUS PROVISIONS

1. The provisions ofthis Protective Order apply to all proceedings in this

adversary proceeding, including trial, all appeals, arbitrations, mediations, and

proceedings upon remand. The Parties shall work with the Court to determine whether

evidenceproffered at trial shouldcontinue to be treated as confidential and, ifso, what

protection, if any, should be afforded to such information at trial.

2. A designation of confidentiality pursuant to this Protective Order shall be

effective and shall be respected by the Parties and all persons in any way involved in

these proceedings or to whose attention confidential information documents shall come

unless and until otherwise ordered by the Court or stipulated by the Parties. These

obligations of confidentialityand non-disclosureshall survive the conclusion ofthis

adversary proceeding unless and until otherwise ordered by the Court, or until the

producing Party (or ifapplicable, the producing Non-Party)agrees in writing that

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designated confidential information or documents may be disclosed.

3. By entering into this Protective Order, no Party waives any objections it

may have to the disclosure ofinformation or the production ofdocuments coveredby this

Protective Order.

4. Any testimony adduced at any trial or oral hearing that includes or discloses

Confidential Information shall be offered in such a manner as to prevent dissemination

beyond any Qualified Persons, unless the Court orders otherwise.

5. No Party, by entering into this Protective Order, by designating information

or documentsas confidential, or by acquiescing in any otherParty's or any Non-Party's

designation, shall be deemed to have admitted or agreed that any such designated

information or document is, in fact, private business, consumer, financial or personal

information, proprietary information,a trade secret or other confidential research,

development, or commercial information.

6. The Court shall retainjurisdiction for one year after the termination ofthis

adversary proceeding to enforce this Protective Order and to make such deletions firom or

amendments, modifications, and additions to the Protective Order as the Court may firom

time to time deem appropriate. The Parties, and any producing Non-Party, reserve all

rights to apply to the Court at any time, before or after termination ofthis adversary

proceeding, for an order modifyingthis Protective Order or seeking furtherprotection

against disclosure or use ofclaimed confidential information or documents.

7. The fact that information is designated as confidential under this Protective

Order shall not be deemed to be determinative ofwhat a trier of fact may determine to be

confidential or proprietary. This Order shall be without prejudice to the right ofany Party

to bring before the Court the question of: (a) whether any particular material is or is not

confidential; (b) whether any particular information or material is or is not entitled to a

greater or lesser degree ofprotection than provided hereunder; (c) whether any particular

information or material is or is not relevant to any issue ofthis case, provided that in

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doing so the Party complieswith the procedures set forthherein. The fact that any

information is disclosed, used, or produced in discoveryor trial herein shall not be

admissible or offered in any other action or proceeding before any court, agency, or

tribunal, as evidenceofor concerningwhethersuch information is confidentialor

proprietary. The fact that confidential information is disclosed, used, or produced in

discoveryor trial herein shallnot constitute evidence or a determination that such

information is confidential, proprietary or admissible in any other action or proceeding

before any court, agency or tribunal.

8. Except for this adversary proceeding and relatedproceedings, ifa Party is

required by law or order ofa governmental or judicial body to release confidential

informationto which it has gainedaccess under the terms ofthis Protective Order, the

Party so required shall notify the producingor designating Party in writing within five (5)

business days ofreceipt ofactual notice; within five (5) business days ofthe

determination that the confidential information is required to be released; or within five

(5) business days prior to such release, whichever is sooner, to permit the producing or

designatingParty sufficientopportunity to contestthe release. In the eventno action is

taken by the producing or designatingParty before the deadlinefor compliancewith the

law or order ofgovernmentalor judicial body to release the confidential information, the

Party required to release the confidential information may do so.

9. The Court may modify the terms and conditions ofthe Protective Order for

good cause, or in the interest ofjustice, or on its own order at any time in these

proceedings.

I. FILING ORLODGING UNDER SEAL

1. Any filing or submission (or part thereof) in this adversary proceeding that

includes any confidential document or confidential information shall be filed under seal

in accordance with the procedures in Local Banknq)tcyRule 5003-2(c) and shall remain

under seal until further order ofthe Court.

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2. All confidential information and documents admitted into evidence at trial

or other proceeding before the Court shall be done so under seal. Such confidential

information and documents shall remain subject to this Protective Order until final

resolution of this adversary proceeding.

3. The Clerk ofthe Court is authorized and directed to comply with this

Protective Order.

J. GOOD CAUSE STATEMENT

Pursuant to Federal Rule ofCivil Procedure26(c), good cause exists for entry of

this Protective Order because (1) the Parties to this adversary proceeding either have

sought or might seek the discovery of information or documents in this action that the

Trustee believes is sensitive or confidential, includingpersonalbusiness, consumer,

financial or personal informationofNon-Party borrowers,consumers, investors and/or

lenders who did business with £FI or EFMF; (2) the Trustee believes that unrestricted

disclosure or dissemination ofsuch information or documents could violate the privacy

rights ofNon-Parties and otherpersonsor entitiesand couldQxpost the Parties to liability

to such Non-Parties, other persons or entities, or governmental agencies; (3) the Parties

desire an efficient and practicable means to designate such informationand documents as

confidential and control their disclosure and dissemination; and (4) the Parties have

agreed to such means as set forth in the proposed Protective Order.

mS SO ORDERED.

Dated: 2014

Hon. Peter H. Carroll

United States Bankruptcy Judge

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LARRY W. GABRIEL - Bar No. 68329STEVEN T. GUBNER- Bar No. 156593COREY R. WEBER-Bar No. 205912EZRA BRUTZKUS GUBNER LLP21650 Oxnard Street, Suite 500Woodland Hills, CA 91367Telephone: (818)827-9000Facsimile: (818) 827-9099Email: [email protected]

[email protected]

Special Litigation Counsel for Plaintiff,Thomas P. Jeremiassen, Chapter 11 Trustee

UNITED STATES BANiCRUPTCY COURT

CENTRAL DISTRICT OF CALIFORNIA

NORTHERN DIVISION

In re

ESTATE FINANCIAL, INC. a Californiacorporation.

Debtor.

THOMAS P. JEREMIASSEN, CHAPTER 11TRUSTEE,

Plaintiff,

vs.

BRYAN CAVE LLP, a professional limitedliability partnership, and KATHERINE M.WINDLER, an indvidual.

Defendants.

Case No.: 9:08-bk-l 1457-PC

Adversary Case No.: 9:ll-ap-01147-PC

STIPULATION REGARDING ENTRY OFPROTECTIVE ORDER AND TOESTABLISH DISCOVERY PROCEDURESTO PROTECT CONFIDENTIALINFORMATION IN THE ADVERSARYPROCEEDING

[Fed. R. Civ. P. 26(c), Fed. R. Bankr. P. 7026 and9037and 11 U.S.C.§ 105(a)]

Hearing on Motion for Entry ofProtective

Order and to Establish Discovery Procednres

to Protect Confidential Information in the

Adversary Proceeding;

Date: January 8,2015Time: 10:00 a.m.

Place: United States Bankruptcy Court1415 State Street

Courtroom 201

Santa Barbara, CA

Judge: Peter H. CanoU

EXHIBIT* "B" 31


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WHEREAS, theparties have agreed upon a form ofa protective order inthis adversary

proceeding, and inarelated adversary proceeding titled Sharp v. Bryan Cave LLP, etal.inthe In re

Estate Financial Mortgage Fiatd, LLC bankruptcy case (collectively the"Adversary Proceedings*')*

given that documents orinformation that may be disclosed orproduced byparties orthird parties in

the Adversary Proceedings contain information that may besubject toconfidentiality rights and

privileges.

WHEREAS, theTrustee anticipates that a motion forapproval of theprotective order will be

filed and served on or about December 8,2014.

THEREFORE, the parties hereto, byandthrough their undersigned attorneys, hereby agree

and stipulate tothe entry ofa protective order in the form affixed hereto as"Exhibit 1," subject to

Bankruptcy Court approval, and further agree tocomply with the terms ofthe protective order, even

prior to its entry ormodification by the Bankruptcy Court, except asmodified oroth^ise ordered

by the Bankruptcy Court.

rriS SO STIPULATED.

Date± December S , 2014

Dated; December 8 .2014

GIBSON, DUNN & CRUTCHER LLP

By: 'Douglas Ftlchs

Attorneys for Defendant Bryan Cave LLP '''

MICHAEL B. SMITH, ESQ.

By: .MichacbB. Smith

Attorneys for Defendant Bryan Cave LLP

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%Dated: December ^ ,2014

REED SMITH LLP

James L. Sanders

Attorneys for DefendantKathcrinc M. Windier

EZRA BRUTZKUS GUBNER LLP

Larry W.Corey R.Attorneys for Plaintiff, Thomas P.Jeremiassen, Chapter 11 Trustee

33



CENTRAL DISTRICT OF CALIFORNIA - NORTHERN DIVISION

In re ESTATE FINANCIAL, INC.,

Debtor

THOMAS P. JEREMIASSEN, Chapter 11Trustee,

Plaintiff

V.

BRYAN CAVE LLP, a professionallimited liability partnersnip, andKATHERINE M. WINDLER, anindividual,

• Defendants.

CaseNo.9:08-bk-lI457-PC

Chapter 11


PROTECTIVE ORDER REGARDINGDISCOVERY AND USE OFCONFIDENTIAL INFORMATION

Honorable Peter H. Carroll

PlaintiffThomas P. Jeremiassen, Chapter 11 Trustee (the "Trustee" or "PlaintifP')

ofthe bankruptcy estate ("the "Estate") ofdebtor Estate Financial, Inc. ("EFI") and

Defendants Bryan Cave, LLP and Katherine M. Windier (collectively, "Defendants"), by

and through their respective attorneys ofrecord in this adversary proceeding, filed a Joint

Motion /Stipulation for Protective Order. (Plaintiffand Defendants are sometimes

referred to singularly as a "Party" and collectively as the "Parties.")

The Partiesanticipatethat discovery in this adversary proceeding will involvethe

production ofbusiness, commercial or financial information protectedby privacy laws,

and other confidential information, as contemplated by Federal Rule ofCivil Procedure

26 and applicable California law, including the Constitution ofthe StateofCaliforniaand

California Civil Code §§ 1798.80-1798.84. At least some ofthe documents and

information that may be sought throughdiscovery in this adversaryproceeding may

qualify as sensitive,personalbusiness, commercial or financial information or other non-

34


0

public information that would justify sealing, redaction orprotection from production

beyond the scope ofthis adversary proceeding. Accordingly, the Parties seek a protective

order pursuant toFederal Rules ofCivil Procedure 26(c) and 29. The Parties further

agree that good cause exists toenter the proposed Protective Order because (1) the Parties

to this adversary proceeding either have sought ormight seek the discovery of certain

information in this adversary proceeding that theTrustee believes is sensitive or

confidential, including personal business, commercial, financial or otherprivate

information of thirdpersons whoare notparties to this adversary proceeding CT^on-

Parties"}) including borrowers, consumers, investors and/orlenders, whodid business

with the Estate, BFI and/or Estate FinancialMortgageFund, LLC C*EFMF"); (2) the

Trustee believes that unrestricted disclosure or dissemination ofsuch information could

violatethe privacyrightsofsuchnon-parties and could expose the Parties to liability to

such non-parties or governmental agencies; (3) the Parties desirean efficientand

practicable means to designate suchinformation confidential andcontrol its disclosure

and dissemination; and (4) the Parties have agreed to such means as set forth in this

proposed Protective Order.

Good causespearing, the Court hereby GRANTS the Parties' JointMotion /

Stipulation and enters the following ProtectiveOrder:

A. DEFINITIONS

1. As used herein, the term "confidential information" means: (a) information

subjectto federal or stateprivacy rights; (b) trade secrets (asdefined in California Civil

Code § 3426.1(d)); (c) otherconfidential research, development or commercial

information, the disclosure ofwhich mightresult in competitive harm and for which the

designating Party or Non-Party has takenreasonable measures to maintain their

confidential, non-publicstatus;and; (d) data derived from such confidential information,

includingany summaries, compilations, quotes, orparaphrases thereof.

35


2. Thefollowing infoimation ofNon-Parties, including both individuals and

entities ("Personal Infonnation") also constitutes confidential information: (a) social

security numbers, taxpayer identification numbers, bank account numbers, credit card

numbers, driver's license numbers, and dates ofbirth; (b)taxreturns, K-1 forms, 1099

forms, W-2 forms, real property closing statements, employee records, employee files,

loan balance statements, bank statements, credit card account statements, investor

account statements, balance sheets, income statementsand other financial statements,

except thatsummaries, compilations, reports, orother materials containing data derived

from documents identified in this subparagraph (b)shall notbe presumed to be

confidential to the extent that the data is aggregated, summarized, anonymized, or

otherwise presented in a mannerthat doesnot connect a Non-Party'sown infoimation to

that Non-Party.

3. As used herein, the terms "document," "documents," "tangible things," and

/^materials" includeall ofthosethings identified in Federal Rule ofCivilProcedure 34(a)

and Federal Rule ofEvidence 1001, and include, but are not limited to, records, exhibits,

reports, samples, transcripts, video or audio recordings, disks, affidavits, briefr,

summaries, notes, abstracts, drawings, company records and reports, answers to

interrogatories, responses to requests foradmissions, and motions, including copiesor

computer-stored versions ofany ofthe foregoing.

B. DESIGNATION OF CONFIDENTIAL INFORMATION

1. ThisProtective Orderapplies to all discovery responses, documents,

testimony,and other materials containing confidential information (identified in ^ A.2

above or designated by a Partyor any Non-Party as confidential, in the mannerdescribed

in ^ B.3 below, disclosed in this adversary proceeding whetherby order ofthe Court, by

response to questions in a deposition, written interrogatories, requests for the production

ofdocuments and other tangiblethings, requests for admission, responseto a subpoena,

or any other discovery undertaken in this adversary proceeding, and to information and

36


documents voluntarily produced to a Party.

2. A Party or any Non-Paity diatdesignates information or documents as

confidential may dosoonly when such Party orNon-Party ingood faith believes the

information is confidential or the document contains information that is confidential. A

Party orNon-Party designating information ordocuments as confidential shall take

reasonable care to designate only that information, documents, items ororal orwritten

communications that the Party or Non-Party reasonably believes to qualify for protection.

If it comes to a Party's or a Non-Party's attention that information or documents that it

designated forprotection didnot qualify or no longer qualifies forprotection, thatParty

or Non-Party should promptly notify allotherParties (and, if applicable, anyaffected

Non-Party) that it is withdrawingthe designation.

3. AnyPartyor Non-Party mayprotect information or documents it believes

constitute or include confidential information (and vdiich is not already defined as

confidential information as provided in A. 2 above) by so designating such

informationor documents prior to or at the time oftheir disclosure. Such designation

shallbe accomplished by placing thenotation CONFIDENTIAL on every pageofeach

document or portion thereofso designated. In the caseofconfidential information

disclosed in a non-p^er medium (€.g., videotape, audiotape, computer disks,etc.), the

notation CONFIDENTIAL shall be affixed to the outside ofthe medium or its container

so as to clearly give notice ofthe designation.

4. PersonalInformation (as providedin HA. 2 above)shall be deemedto be

"confidential" regardless ofwhetherthe discoveryin which it appears is marked as such.

Personal Information (as provided in ^ A.2 above)need not be redacted until and unless

a Party seeks to disclosedocuments or other materials containing or constituting Personal

Information to anyone other than QualifiedPersons,at whichpoint the Party seeking to

disclose the materials shall redact them as necessary to comply with this Protective

Order. The Parties shall take reasonable steps to insure that all confidential information

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produced to each other for inspection and copying is afforded the protections intended by

thisProtective Order. It isthe responsibility of the producing Party to identify such

information and documents to the receiving Party unless the information and documents

are deemed confidential as providedunder^ A.2.

5. Except asset forth inthis Protective Order, information and documents

designated as confidential asprovided in A.2 and B.3 above ("Confidential

Information") shall be usedsolely for thepurposes of tiiis adversary proceeding and all

responses thereto (including appeals and retrials) and shall notbe used forany other

purpose, including, without limitation, any business, commercial or financial purpose, or

dissemination to the media. Confidential Information shall not be disclosed to anyone

otherthanthosepersons permitted by theProtective Order, except as maybe ordered by

the Courtor agreed to in writing by theproducing Partyor Non-Party. Ifany

Confidential Information is thereafter usedby a Partyto whichit has beenproduced or

disclosed as part ofa pleading filed or lodged with the Courtin this adversary proceeding

or in a response to a discovery request in thisadversary proceeding, thePartyusing that

informationor documentshall take all reasonable steps to preservethe continued

confidentiality ofthat Confidential Information.

6. The terms ofthis Protective Order shall not q)ply to or restrict the

disclosure or use by a producingParty or its counsel ofthe producingParty's own

confidential information or documents. The voluntarydisclosure,other than pursuant to

this Protective Order, ofconfidential information or a confidential document by a

producingParty, however, mayprovide grounds for an opposing Partyto challenge the

confidential designation ofthe same pursuant to Section B, below.

7. Nothing in this Protective Order shall bar or otherwise restrict any attorney

from rendering advice to his/her client, or such client's insurers,or such client's insurers'

counsel with respect to this adversary proceeding and, in the course ofrenderingadvice,

referringto or relyinggenerally on the examination ofconfidential information produced

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orexchanged, so long as the client, insurer, and counsel have been provided with a copy

ofthis Protective Orderandadvised thattheir useof confidential information is governed

by its terms.

8. A Party serving a subpoena ordemanding discovery from any Non-Party or

any other person orentity shall serve a copy ofthis Protective Order on such Non-Party

orother person orentity concurrently with the subpoena ordiscovery demand.

C. DISCLOSURE OF DESIGNATED CONFIDENTIAL INFORMATION

1. The Parties, counsel for the Parties, and all persons to whomconfidential

information or a confidential document is disclosed under the terms ofthis Protective

Order shall maintain all Confidential Information in confidence and shall not disclose

such information or documents, directly or indirectly, to anypersonor entityexceptas


2. Access to Confidential Infonnation shall be limited to the following

persons (collectively, "Qualified Persons"):

(a) The attomeys of record forthe Parties (including bothoutside counsel and

in-house counsel) who are activelyengaged in the conductofthis litigation

or advising in connection with this litigation, as well as all oftheir partners,

associates, employees,and staffand organizations retained by law firms or

attomeys ofrecord to anyPartyto provide litigation support and/or jury

consulting services in this adversary proceeding;

(b) AnyParty, anyemployee or representative of theproducing or receiving

Party, the insurer of any Party, and counsel for the insurer ofany Party,

provided that, with respect to any receiving Party, employees and

representativesofthe receivingPartypermittedaccess to Confidential

Infonnation shall be limited to only those persons who the receiving Party

believes in good faith need access to the information in connectionwith the

adversary proceeding;

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(c) The Courtand personnel of or appointed by anycourthaving jurisdiction

over anyproceedings involved in thisadversary proceeding;

(d) Courtreporters, videographers, andtheir staffs to whom disclosure is

reasonably necessary for the purposes of this adversary proceeding;

(e) Consultants and experts retained in this adversary proceedingor in the

underlying bankruptcy caseby the attorneys ofrecord or their partners,

associates, employees or staffwho are responsible for assisting in the

preparation, trial or appealofthis adversary proceeding, insofar as the

attorneys ofrecord may deem it necessary for the preparation or trial ofthe

adversary proceeding to consultwithsuch experts or consultants, and insofar

as such consultants and experts execute the Declaration Confirming

Compliancewith Stipulated Protective Order Re ConfidentialInformation

("Compliance Declaration") attached to this Protective Order;

(0 Any current employees, directors, agents or Federal Rule of Civil Procedure

30(b)(6) designees ofa Party;

(g) Any former employee ofa designating Party, who executes the Compliance

Declaration, that such disclosing Party reasonably and in good faith believes

authored, received, or became familiar with the Confidential Information in

the ordinary course ofhis or her employment by the designating Parly;

(h) Any author, original source, or prior recipient ofthe confidential

information;

(i) Deposition witnesses;

(j) Any other person or entity as to whom the Parties agree in writing; and

(k) Any other person as to whom the Court orders should have access to the

confidential information.

3. A copy ofany ComplianceDeclaration executed by any person required

under this Protective Order shall be maintained by counsel for the Party making die

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disclosure of another Party's orNon-Party's designated confidential information.

D. DEPOSITIONS

1. With respect tothe examination ofwitnesses iq)on oral deposition, when

Confidential Information is supplied to the deponent, or when the deponent's testimony

contains, reflects, or comments on Confidential Information, the deposition reporter

and/or video operator shall be informed of this Protective Order bytheParty seeking to

use or disclosethe confidential information. Thereporter and/orvideooperatorthen

shall place onthecover of any deposition transcript orvideo Aatcontains or includes any

designated confidential information or documents the words "CONTAINS

CONFIDENTIAL INFORMATION SUBJECT TO A COURT PROTECTIVE ORDER."

Counselfor the Parties then shall take reasonable steps to preventany portions ofany

deposition transcript (or attached documents thatare or contain Confidential Information)

or video designated CONFIDENTIAL firom being disclosedto any person, except as


2. All testimony at a deposition shall be presumed to be designated

CONFIDENTIAL ifthis Protective Order is invoked at the deposition until the specific

pages of the transcript containing designated confidential information are identified and

designated CONFIDENTIAL as provided below. Thedesignating Party or Non-Party

shall,withinthirty (30)daysafterreceiving a copy ofthe deposition transcript, provide

all Parties (and ifapplicable, the Non-Party) witha writtenlist ofthe page(s) ofthe

deposition transcript, andanyexhibits attached thereto, thatthe Party or Non-Party has

designated as confidential. Onlypagescontaining confidential information shall be so

designated.

3. If Confidential Information is to be discussed or disclosed in a deposition,

any Party or Non-Party claimingsuch confidentiality may excludefirom the room any

person who is not entitledto receivesuchconfidential information duringthat portion of

the depositionin whichthe Confidential Information is actuallydiscussed or disclosed. If

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Confidential Information is to be discussed or disclosed at a hearing or at trial, a Party

may request that the Courtexclude firom the courtroom anypersonwho is not entitled to

receive such Confidential Information during that portion ofthe hearing or trial in which

the Confidential Informationis actuallydiscussedor disclosed.

E. CHALLENGING A DESIGNATION

1. The Parties shall activelywork to avoidthe unnecessary designationof

information and documents produced in discovery in this action. Ifonly a portion ofa

document contains confidential information, and ifreasonably feasible, only that portion

shall be designated as confidential.

2. In the event that counsel for a Party at any time believes that designated

confidential information or documentsshould not be so designated, such counsel shall

meet and confer with counsel for the other Party(ies) in an attempt to resolve the dispute.

3. Ifcounsel for the Parties (including, ifapplicable, the Non-Party) are

unable to resolve the dispute, then counsel for the Party designatingparticular

information or a document as confidential may make an application to this Court, to be

lodged conditionally imder seal, for an Order that the information or document subject to

the dispute be designated "CONFIDENTIAL" under this Protective Order. Such relief

must be sought within ten (10) days ofany notificationby any Party to the dispute over

the designation that an impasse has been reached. Ifsuch relief is timely sought, the

challenged designation and categorization shall remain in effect until a decision is

rendered by the Court or agreement ofthe designating Party. Ifno relief is timely sought,

the information shall be deemed to have the designation the non-designating Party to the

dispute asserts is appropriate.

4. The designating Party (or, ifapplicable, Non-Party) bears the burden of

establishing that the information or documentsdesignatedas confidential are entitled to

protection.

5. No Party shall be obliged to challenge the propriety ofa confidential

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designation, and a failure todo soshall notpreclude a subsequent challenge to the

proprietyofsuch designation.

F. INADVERTENT FAILURE TO DESIGNATE

1. The inadvertentfailure to designate confidential infonnation or documents

as CONFIDENTIAL prior toorat thetime ofdisclosure shall notoperate asa waiver of a

Partyor Non-Party'srightto designate suchinformation or documents as

CONFIDENTIAL after such disclosure.

2. In the event that confidential information or documents are designated as

CONFIDENTIAL after disclosure, the receiving Partyshall employreasonable efforts to

ensure that all suchpreviously disclosed information or documents are subsequently

treated as confidential pursuant to the terms ofthis ProtectiveOrder.

3. Should any document or information designated as CONFIDENTIAL be

disclosed, through inadvertence or otherwise, to anypersonor entitynot authorized to see

such materials under this Protective Order, then the disclosingParty shall immediately

procurethe returnof the material, and inform counsel for the designating Party (or, if

applicable, the Non-Party) whose confidential information or document has thus been

disclosedofall relevant information concerning the natureand circumstances ofsuch

disclosure. The disclosingPartyshall also take all reasonable measures promptlyto

ensure that no further or greater unauthorized disclosure of the confidential information

or document occurs.

G. CUSTODY AND DISPOSITION OF CONFIDENTIAL INFORMATION

1. Informationand documents designatedas confidential shall be maintained

in the custodyof counsel for the Parties, except for information in the custodyof: (a) the

Court; (b) any court reporter transcribingtestimonygiven in this adversaryproceeding,

for the limitedpurpose ofrendering his or her normal transcribing services; and (c)

persons to whom the confidential information or document may be disclosedpursuant to

the terms ofthe Protective Order, including consultantsand e;q>erts, to the extent

43


necessary for their involvement in the adversary proceeding. Except for the Court, a

person with custodyof information or documents designated as confidential shall keep it

in a manner that limits access to it to only those persons entitled under this Protective

Order to examine such information or documents.

2. Unless agreed otherwise in writing, at the conclusion ofthis adversary

proceeding, whether by settlement or final decisionofthe Court of last resort, the Parties,

counsel for the Parties, and all persons who executedthe ComplianceDeclaration agree

that they will destroy or retum to the producingParty (or ifapplicablethe non-party) all

copies ofany documents, other than attomey work product, containing designated

confidential information produced by a Party or Non-Party. Notwithstanding the

foregoing, counsel ofrecord shall be permitted to retain a file copy ofall pre-trial, trial,

and post-trial pleadings, exhibits, depositionsand depositionexhibits, and document

databases. Such file copies shall be kept under the conditionsfor maintaining

confidential information and documents as set forth above.

BL MISCELLANEOUS PROVISIONS

1. The provisions ofthis Protective Order apply to all proceedings in this

adversary proceeding, includingtrial, all appeals, arbitrations, mediations,and

proceedings uponremand. The Parties shall workwith the Courtto determine whether

evidenceproffered at trial shouldcontinue to be treatedas confidential and, ifso, what

protection, ifany, should be affordedto such information at trial.

2. A designationofconfidentiality pursuant to this ProtectiveOrder shall be

effective and shall be respected by the Parties and all persons in any way involved in

these proceedings or to whose attention confidential informationdocuments shall come

unless and until otherwise ordered by the Court or stipulated by the Parties. These

obligations ofconfidentiality and non-disclosureshall survive the conclusion ofthis

adversary proceeding unless and until otherwise ordered by the Court, or until the

producing Party (or ifapplicable, the producing Non-Party)agrees in writing that

44


designated confidential infonnation or documents may be disclosed.

3. By entering into this Protective Order, no Party waives any objections it

may have to the disclosure of information or the production ofdocuments covered by this

Protective Order.

4. Any testimony adducedat any trial or oral hearingthat includesor discloses

Confidential Information shall be offered in such a manner as to prevent dissemination

beyond any Qualified Persons, unless the Court orders otherwise.

5. No Party, by enteringinto this ProtectiveOrder, by designating information

or documents as confidential,or by acquiescingin any other Party's or any Non-Party's

designation, shall be deemedto have admitted or agreedthat any such designated

informationor document is, in fact, privatebusiness, consumer, financial or personal

information,proprietary information, a trade secret or other confidentialresearch,

development, or commercial information.

6. The Court shall retain jurisdiction for one year after the termination ofthis

adversary proceeding to enforcethis Protective Orderand to makesuchdeletions fi:om or

amendments, modifications, and additions to the Protective Order as the Court may firom

time to time deemappropriate. The Parties, and anyproducing Non-Party, reserveall

rights to apply to the Court at any time, before or after termination ofthis adversary

proceeding, for an ordermodifying thisProtective Orderor seeking further protection

against disclosure or use ofclaimed confidential informationor documents.

7. The fact that information is designated as confidential under this Protective

Order shall not be deemed to be determinative ofwhat a trier of fact may determine to be

confidential or proprietary. This Ordershall be withoutprejudiceto the right ofany Party

to bring beforethe Courtthe question of: (a) whether anyparticular material is or is not

confidential; (b) whetherany particularinformation or material is or is not entitled to a

greateror lesser degreeofprotection thanprovided hereunder; (c) whetherany particular

information or material is or is not relevant to any issue of this case, provided that in

45


doing so the Party complies with theprocedures setforth herein. Thefactthatany

information is disclosed, used, or produced in discovery or trialhereinshall not be

admissible or offered in any other actionor proceedingbefore any court, agency, or

tribunal, as evidence ofor concerning whether suchinformation is confidential or

proprietary. The fact thatconfidential information is disclosed, used, orproduced in

discovery or trial herein shall notconstitute evidence or a determination thatsuch

information is confidential, proprietary or admissible in anyotheraction or proceeding

before any court, agency or tribunal.

8. Except forthisadversary proceeding andrelated proceedings, ifa Parly is

required by lawor orderof a governmental orjudicial body to release confidential

information to whichit has gained access underthe terms of this Protective Order, the

Partyso required shall notify theproducing or designating Party in writing within five (5)

business days ofreceipt ofactualnotice; within five (5) business days ofthe

determination that the confidential information is requiredto be released; or within five

(5) business daysprior to suchrelease, whichever is sooner, to permitthe producing or

designating Party sufficient opportunity to contest therelease. In theevent no action is

takenby theproducing or designating Party before thedeadline forcompliance with the

law or order ofgovernmental or judicialbodyto release the confidential information, the

Party requiredto release the confidential information may do so.

9. The Courtmaymodify the terms andconditions ofthe Protective Orderfor

goodcause, or in the interest ofjustice, or on its own orderat any timein these

proceedings.

I. FILING OR LODGING UNDER SEAL

1. Any filing or submission (orpart thereof) in this adversary proceeding that

includes any confidentialdocumentor confidential information shall be filed under seal

in accordance with the procedures in LocalBankruptcy Rule5003-2(c) and shall remain

under seal until further order ofthe Court.

46


2. All confidential infonnation and documents admitted into evidence at trial

orother proceeding before the Court shall bedone sounder seal. Such confidential

information and documents shall remain subjectto this Protective Orderuntil final

resolution ofthis adversary proceeding.

3. The Clerk ofthe Court is authorizedand directed to comply with this

Protective Order.

J, GOOD CAUSE STATEMENT

Pursuantto FederalRuleofCivilProcedure 26(c),goodcauseexists for entryof

this ProtectiveOrderbecause(1) the Parties to this adversary proceeding eitherhave

sought or might seekthediscovery of information or documents in thisaction thatthe

Trustee believes is sensitive or confidential, includingpersonal business, consumer,

financial or personal information of Non-Party borrowers, consumers, investors and/or

lenders who did business with £FI or EFMF; (2) the Trusteebelieves that unrestricted

disclosure or dissemination ofsuch information or documents could violate the privacy

rights of Non-Parties andother persons or entities andcould expose theParties to liability

to such Non-Parties, other persons or entities, or governmental agencies; (3) the Parties

desire an efficientand practicable means to designate such information and documents as

confidential and control their disclosure and dissemination; and (4) the Parties have

agreed to such means as set forth in the proposedProtectiveOrder.

IT IS SO ORDERED.

Dated: 2014

Hon. Peter H. CarrollUnited States Bankruptcy Judge

47


PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is:21650 Oxnard Street, Suite 500, Woodland Hills, California 91367.

A true and correct copy of the foregoing document entitled: CHAPTER 11 TRUSTEE'S MOTION FOR PROTECTIVEORDER AND TO ESTABLISH DISCOVERY PROCEDURES TO PROTECT CONFIDENTIAL INFORMATION IN THEADVERSARY PROCEEDING; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF THOMASP. JEREMIASSEN IN SUPPORT THEREOF will be served or was served (a) on the judge in chambers in the form andmanner required by LBR 5005-2(d); and (b) in the manner stated below:

I

1. TO BE SERVED BYTHE COURTVIA NOTICE OF ELECTRONIC FILING (NEFI: Pursuant to controlling GeneralOrders and LBR, the foregoing document will be served by the court via NEF and hyperlinkto the document. OnDecember 8,2014,1 checked the CM/EOF docket for this bankruptcy case or adversary proceeding and determined that thefollowing persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below:

LarryW Gabriel [email protected], [email protected] MGeher [email protected], [email protected];fc3@][email protected] P Jeremiassen (TR) [email protected] A Juhnke [email protected] Millet [email protected], [email protected]; [email protected] L Nelson [email protected] A Nowlin cno\^[email protected] P Reitman [email protected], [email protected]; [email protected]; [email protected];[email protected]^rO Rivas [email protected] States Trustee (ND) [email protected] RWeber [email protected], [email protected] M Windier [email protected] Zimonjic [email protected], [email protected]; [email protected]; [email protected]

• Service information continued on attached page2. SERVED BY UNITED STATES MAIL: On December 8,2014,1 served the following persons and/or entities at the lastknown addresses in this bankruptcy case or adversary proceeding by placinga true and correct copy thereof in a sealedenvelope in the UnitedStates mail, first class, postage prepaid, and addressed as follows. Listing the judge hereconstitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

Counsel for Brvan Cave LLP James L. Sanders, Esq.Michael B. Smith, Esq. Reed Smith LLPP.O. Box 746 1901 Avenue of the Stars, Suite 700Natick, MA 01760 Los Angeles, CA 90067-6078

• Service information continued on attached page

3. SERVED BY PERSONAL DELIVERY. OVERNIGHT MAIL. FACSIMILE TRANSMISSION OR EMAIL (state method foreach person or entitv served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on December 8, 2014,1 served thefollowing persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to suchservice method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration thatpersonal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is filed.

VIA OVERNIGHT MAIL VIA EMAIL

Honorable Peter H. Carroll Douglas Fuchs - [email protected] States Bankruptcy Court Michael B. Smith - [email protected] Division James L. Sanders - [email protected] State Street, Suite 230Santa Barbara, CA 93101-2511

Q Service information continued on attached page

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

December 8, 2014 MELA ZEPEDA /s/ Mela ZepedaDate Printed Name Signature

This form Is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

June 2012 F 9013-3.1.PROOF.SERVICE


LARRY W. GABRIEL- BarNo. 68329 STEVEN T. GUBNER- BarNo....

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