Opinion

The City of Philadelphia v. Bank of America Corporation

Court: District Court, S.D. New York
Filed: Mar 3, 2021
Cited by: 0 cases
Authority: More cited than 27.2%

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE CITY OF PHILADELPHIA, MAYOR AND CITY Case No. 19-cv-1608 (JMF)

COUNCIL OF BALTIMORE,

Plaintiffs,

vs.

BANK OF AMERICA CORPORATION, BANK OF

AMERICA, N.A., BANC OF AMERICA SECURITIES

LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED, BARCLAYS BANK PLC,

BARCLAYS CAPITAL INC., CITIGROUP INC.,

CITIBANK N.A., CITIGROUP GLOBAL MARKETS

INC., CITIGROUP GLOBAL MARKETS LIMITED,

GOLDMAN SACHS & CO. LLC, JPMORGAN CHASE

& CO., JPMORGAN CHASE BANK, N.A., J.P.

MORGAN SECURITIES LLC, MORGAN STANLEY,

MORGAN STANLEY SMITH BARNEY LLC,

MORGAN STANLEY & CO. LLC, MORGAN

STANLEY CAPITAL GROUP INC., THE ROYAL

BANK OF CANADA, RBC CAPITAL MARKETS LLC,

WELLS FARGO & CO., WELLS FARGO BANK, N.A.,

WACHOVIA BANK, N.A., WELLS FARGO FUNDS

MANAGEMENT, LLC, WELLS FARGO SECURITIES

LLC,

Defendants.

[PROPOSED] STIPULATED PROTECTIVE ORDER

1. PURPOSES AND LIMITATIONS

Discovery requests and subpoenas served in this Action may call for the production

or disclosure of trade secret or other confidential research, development, or commercial

information within the meaning of Federal Rule of Civil Procedure 26(c), or other private or

competitively sensitive information for which protection from public disclosure and from use for

any purpose other than prosecuting this Action is warranted. Accordingly, the Parties hereby

stipulate to and petition the Court to enter the following Stipulated Protective Order (“Order”)

pursuant to Federal Rule of Civil Procedure 26(c) and Federal Rule of Evidence 502(d).

2. DEFINITIONS

2.1. Action: the above-captioned action, and any cases consolidated with it.

2.2. Party: any party to this Action, including all of its officers, directors, and

employees.

2.3. Non-Party: any natural person or entity that is not a named Party to this Action.

2.4. Discovery Material: all items or information, regardless of the medium or manner

generated, stored, or maintained, including but not limited to, documents,

testimony, interrogatory responses, deposition transcripts and exhibits, responses

to requests for admission, recorded or graphic matter, electronically stored

information (“ESI”), and/or tangible things, given, exchanged by, or obtained from

any Party or Non-Party during discovery in this Action, including but not limited

to documents or ESI previously produced in other cases or government

investigations to the extent any Party is required to produce or agrees to produce

such previously-produced information.

2.5. Confidential Material: any Producing Party (as defined below) may, subject to the

provisions of this Order, designate as “Confidential” any Discovery Material that

the Producing Party reasonably and in good faith believes constitutes and/or reveals

confidential trade secrets, proprietary business information, or non-public personal,

client, or customer information.

2.6. Privileged Material: Discovery Material protected from disclosure under the

attorney-client privilege, work product doctrine, United States or foreign bank

disclosure laws or regulations, and/or under any other applicable United States or

foreign statute, law, regulation, privilege, or immunity from disclosure.

2.7. Highly Confidential Material: any Producing Party may, subject to the provisions

of this Order, designate any Discovery Material as “Highly Confidential” if the

Producing Party reasonably and in good faith believes the Discovery Material

contains trade secrets or other highly sensitive information that the Producing Party

reasonably believes the unauthorized disclosure of which would result in

competitive, commercial or financial harm to the disclosing Party or Non-Party, or

its personnel, clients or customers.

2.8. Personal Data: Discovery Material protected from disclosure by federal, state, or

foreign data-protection laws, or other privacy obligations, including, without

limitation, European Union Directive 95/46/EC (the “Directive”) and the national

laws implementing the Directive.

2.9. Producing Party: any Party or Non-Party that produces Discovery Material in this

Action.

2.10. Receiving Party: any Party or Non-Party that receives Discovery Material from a

Producing Party.

2.11. Designating Party: any Party or Non-Party that designates Discovery Material as

“Confidential” or “Highly Confidential.”

2.12. Protected Material: any Discovery Material that is designated as “Confidential” or

“Highly Confidential,” provided, however, that “Protected Material” does not

include information that is publicly available (except information that became

publicly available as a result of a breach of this Order or any other confidentiality

agreement or undertaking).

2.13. Outside Counsel: attorneys, along with their paralegals and other support personnel

assisting them with this Action (including temporary or contract staff), who are not

employees of a Party but who have been retained to represent or advise a Party in

connection with this Action.

2.14. In House Counsel: attorneys and other personnel employed by a Party to perform

legal functions who are responsible for overseeing this Action.

2.15. Counsel (without qualifier): Outside Counsel and In House Counsel.

2.16. Expert and/or Consultant: a person with specialized knowledge or experience in a

matter pertinent to this Action, along with his or her employees and support

personnel, who has been retained by a Party or its Counsel to serve as an expert

witness or as a consultant in this Action, and who is not currently an employee of

a Party and who, at the time of retention, is not anticipated to become an employee

of a Party. This definition includes a professional jury or trial consultant retained

in connection with this Action.

2.17. Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations;

organizing, storing, or processing data in any form or medium) and their employees

and subcontractors.

3. SCOPE

The protections conferred by this Order cover not only Discovery Material, but also

any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or

compilations thereof, and testimony, conversations, or presentations by Parties or Counsel in

settings that might reveal Protected Material. However, except as set forth in Section 12.4, this

Order shall not be construed to cause any Counsel to produce, return, and/or destroy their own

attorney work product, or the work product of their co-counsel, created in anticipation of or in

connection with this Action.

Nothing in this Order shall be construed to prejudice any Party’s right to use any

Protected Material in court or in any court filing in connection with prosecuting or defending the

claims in this Action so long as appropriate actions are taken to protect any Protected Material’s

confidentiality, such as filing the Protected Material under seal.

This Order is without prejudice to the right of any Producing Party to seek further

or additional protection of any Discovery Material or to modify this Order in any way, including,

without limitation, an order that certain matter not be produced at all.

4. DURATION

The confidentiality obligations imposed by this Order shall remain in effect until

the Designating Party agrees otherwise in writing or this Court orders otherwise.

5. DESIGNATING PROTECTED MATERIAL

5.1. Designating Bulk Material for Protection: In order to expedite production of

voluminous materials, a Designating Party may, at its sole option, but is not

required to, produce materials without a detailed review, subject to the “claw back”

procedures in this Order (Section 12) or as otherwise agreed to. In doing so, the

Designating Party may designate those collections of documents that by their nature

contain Protected Material with the appropriate designation notwithstanding that

some of the documents within the collection may not qualify for such designation.

Notwithstanding the foregoing, a Receiving Party may at any time, when it has a

good faith basis for believing that one or more particular documents do not contain

Protected Material, challenge the designation of one or more particular documents

on the grounds that it or they does not or do not qualify for protection, or does not

or do not qualify for the level of protection initially asserted. If the Designating

Party agrees, it must promptly notify all Receiving Parties that it is withdrawing or

changing the designation, and the Producing Party must provide re-labeled copies

of the material to each Receiving Party reflecting the change in designation.

5.2. Manner and Timing of Designations: Except as otherwise provided in this Order,

or as otherwise stipulated or ordered, material that qualifies for protection under

this Order must be clearly so designated before the material is disclosed or

produced. Designation in conformity with this Order requires:

(a) for information in non-native documentary form (including transcripts of

depositions taken in other proceedings), that the Producing Party affix the

legend “Confidential” or “Highly Confidential” on the document and

include the applicable designation in the metadata produced for such

document.

(b) for deposition transcripts and/or exhibits in this Action, that the Designating

Party designate any portion of the testimony as “Confidential” or “Highly

Confidential” by written notification to all Outside Counsel of record on or

before the later of (i) thirty (30) calendar days after receipt of the final

transcript, or (ii) the date by which any review by the witness and statement

of changes to the transcript are to be completed under Federal Rule of Civil

Procedure 30(e). Only those portions of the testimony that are designated

for protection in accordance with the preceding sentence shall be covered

by the provisions of this Order. The entire testimony shall be deemed to

have been designated Highly Confidential until the time within which the

transcript may be designated has elapsed. Any designated Discovery

Material that is used in the taking of a deposition shall remain subject to the

provisions of this Protective Order. If testimony is not designated within

the prescribed time period, then such testimony shall not be deemed

Confidential or Highly Confidential except as ordered by the Court or as

provided in Section 5.3 (Inadvertent Failures to Designate). If all or a part

of a videotaped deposition is designated as “Confidential” or “Highly

Confidential,” the DVD, plus any container, shall be so labeled.

productions of documents produced in native format (other than Excel

documents) and for any other tangible items, that the Producing Party affix

the legend “Confidential” or “Highly Confidential” in a prominent place on

the exterior of the container or containers in which the information or item

is stored and/or on the document. Whenever a Receiving Party to whom

electronically stored Discovery Material so designated is produced reduces

such information to hard copy form, to the extent such pages have not

previously been marked by the Producing Party, such Receiving Party shall

mark the hard copy by affixing the designation “Confidential” or “Highly

Confidential” to each page of such document.

(d) for documents produced in native format, that the Producing Party include

the confidentiality designation “Confidential” or “Highly Confidential” in

the metadata produced for such documents or on the placeholder page.

(e) for interrogatory answers and responses to requests to admit, and the

information contained therein, that the Producing Party affix the legend

“Confidential” or “Highly Confidential” in a prominent place on each page

of such document prior to production.

(f) for reports created by an Expert or Consultant relying on or incorporating

Protected Material in whole or in part, that the Party responsible for its

creation include the confidentiality designation “Confidential” or “Highly

Confidential,” as appropriate, on each page of the report.

A Party or Non-Party also may designate its information as Confidential

Information or Highly Confidential Information by otherwise making that

designation clear where the process described above is not feasible.

5.3. Inadvertent Failures to Designate: If a Producing Party discovers that it produced

material that was not designated as Protected Material or that it produced material

that was designated as Protected Material but had designated that Protected

Material in the incorrect category of Protected Material, the Producing Party may

promptly notify all Receiving Parties, in writing, of the error and identify (by Bates

number) the affected material and its new designation or re-designation.

Thereafter, the material so designated or re-designated shall be treated as Protected

Material in conformity with the new designation or re-designation. Promptly after

providing such notice, the Producing Party shall provide re-labeled copies of the

material to each Receiving Party reflecting the change in designation. Each

Receiving Party shall make reasonable efforts to delete and replace the incorrectly

designated material, and all copies thereof, with the newly designated material and

to destroy the incorrectly designated material. To the extent such information may

have been disclosed to anyone not authorized to receive Confidential or Highly

Confidential Discovery Material under the terms of this Stipulation and Order, the

Receiving Party shall (i) promptly notify the Producing Party and (ii) make

reasonable efforts to retrieve the Discovery Material promptly and to avoid any

further disclosure. If corrected, an inadvertent failure to designate qualified

information or items as “Confidential” or “Highly Confidential” does not waive the

Producing Party’s right to secure protection under this Order for such material. If

material is re-designated “Confidential” or “Highly Confidential” after the material

was initially produced, each Receiving Party, upon notification of the designation,

must make reasonable efforts to assure that the material is treated in accordance

with the provisions of this Order.

5.4. In the event that more than one Designating Party designates the same Protected

Material with different levels of confidentiality, the Parties shall make reasonable,

good faith efforts to treat all copies of the Protected Material as having the highest

level of confidentiality designated by any Designating Party.

5.5. Upward Designation of Discovery Material Produced by Other Parties or Non-

Parties: A Party may upward designate (i.e., designate any Discovery Material

produced without a designation as Confidential or Highly Confidential or change

any Confidential Material to a designation of Highly Confidential) any Discovery

Material produced by another Party or Non-Party, provided that said Discovery

Material contains the upward designating Party’s own trade secrets or other

confidential research, development, financial, personal or commercially sensitive

information, or otherwise is entitled to protective treatment under Federal Rule of

Civil Procedure 26(c) or other law, foreign or domestic. Upward designation shall

be accomplished by providing written notice to all Parties, and the Producing Party

if it is not a Party, identifying (by Bates number or other individually identifiable

information) the Discovery Material. Within fifteen (15) business days of any such

upward designation, the Producing Party shall provide replacement Discovery

Material (i.e., production files, images, and metadata) reflecting the revised

confidentiality designation. Any Party may object to the upward designation of

Discovery Material pursuant to the procedures set forth in paragraph 6 regarding

challenging designations.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1. Meet and Confer: If a Party elects to challenge a Designating Party’s

confidentiality designation, it must do so in good faith and must begin the process

by notifying the Designating Party in writing of its challenge and identifying the

challenged material with as much specificity as reasonably practical, including for

example, by Bates number, and by providing a basis for the challenge. The

challenging Party and the Designating Party shall, within ten (10) business days

after service of the written objections, meet and confer concerning the objection,

unless otherwise agreed. In conferring, the challenging Party must explain the basis

for its belief that the confidentiality designation was not proper, and the Designating

Party must explain the basis for its belief that the confidentiality designation was

proper.

6.2. Judicial Intervention: If the Parties are not able to resolve a dispute about a

confidentiality designation during the meet and confer process set forth in Section

6.1, above, the Party challenging the designation may seek relief from the Court in

accordance with its rules and procedures. Until the Court rules on the dispute, all

Parties shall continue to afford the material in question the level of protection to

which it is entitled under the Designating Party’s designation.

7. ACCESS TO AND USE OF PROTECTED MATERIAL

7.1. Subject to any other written agreement among or between Producing Parties and

Receiving Parties, a Receiving Party may access or use Discovery Material that is

disclosed or produced by a Producing Party only in connection with the prosecution

of, defense of, appeal of, attempted settlement of, or the enforcement of insurance

rights with respect to this Action. Except as required by law, Discovery Material

may not be used for any other purpose, including, without limitation, any business

or commercial purpose, contractual demands, any purpose related to any other

investigation or proceeding, or evaluation of other potential claims. Protected

Material may be disclosed only to the categories of persons and under the

conditions described in this Order. Following the termination of this Action, each

Receiving Party must comply with the provisions of Section 10, below. The Parties

agree that, in the event of the intentional unauthorized use or disclosure of

Discovery or Protected Material, there shall be a rebuttable presumption that

irreparable harm would occur.

7.2. Protected Material must be stored and maintained by a Receiving Party at a location

and in a secure manner that ensures that access is reasonably limited to the persons

authorized under this Order and the Receiving Party shall exercise a standard of

due and proper care with respect to the storage, custody, use, and/or dissemination

sufficient to safeguard against unauthorized or inadvertent disclosure of such

material. For purposes of this Order, a secure website, or other internet-based

document depository with adequate security, shall be deemed a secure location.

7.3. Disclosure of Confidential Material: Unless otherwise ordered by the Court or

permitted in writing by the Designating Party, material designated “Confidential”

may be disclosed by a Receiving Party only to the following persons:

(a) the Receiving Party’s Counsel;

(b) in addition to In House Counsel, and to the extent that such disclosure is

reasonably necessary for this Action, current officers, directors, or

employees of each Receiving Party who have been informed they are

reviewing Confidential Material and agree to abide by the terms of this

Order;

expert witness or as a consultant in this Action and who have signed the

“Agreement To Be Bound By Protective Order” (Exhibit A), provided that

Counsel, in good faith, requires their assistance in connection with this

Action; and provided further that any part of a report created by such Expert

or Consultant incorporating Protected Material in whole or in part shall be

designated appropriately by the Party responsible for its creation; and

provided further that Experts or Consultants may not use Protected Material

for any purpose that does not relate to this Action; and provided further, that

such Expert or Consultant (i) is not currently an employee of, or discussing

employment with, any Party, and (ii) is using said Protected Material solely

in connection with this litigation. Under no circumstances shall an Expert

or Consultant who is a known competitor or an employee of a known

competitor of a Party, absent further order of the Court or the prior written

consent of the Producing Party, be provided access to Protected Material

created after December 31, 2017 including (i) transactional data, or

information related to pricing, profit, loss, revenue, or cost produced by any

Party; (ii) terms of employment contracts; (iii) technical data, code, or

descriptions of technical data or code relating to products, services, or other

intellectual property; (iv) client, customer, or marketing lists.

Notwithstanding those exceptions, nothing in this provision shall prevent

the Experts or Consultants from viewing documents in any of these

excluded categories contained in an expert report, damages analysis, or in

any document to be submitted to the Court or a mediator, or exchanged in

the course of settlement negotiations, so long as such information is

aggregated, anonymized, and summarized. “Known competitors” are

persons actively involved in remarketing of VRDOs or providing letters of

credit or other similar liquidity facilities with respect to VRDOs;

(d) the Court and its personnel, subject to the requirements of Section 9, below;

(e) special masters, mediators, or other third parties who are appointed by the

Court or retained by the Parties for settlement purposes or resolution of

discovery or other disputes and their necessary personnel and, in the case of

persons retained by the Parties, who have signed the “Agreement To Be

Bound by Protective Order” (Exhibit A);

(f) court reporters, videographers, and their staff engaged for depositions in this

Action;

(g) Professional Vendors to the extent that such disclosure is reasonably

necessary for this Action;

(h) the author, addressees, or recipients of the document, or any other natural

person who reviewed or had access to such document during his or her

employment as a result of the substantive nature of his or her employment

position, or who is specifically identified in the document or its

accompanying metadata, provided, however, that (i) the disclosure is made

for the purpose of advancing the disclosing Party’s claims or defenses, and

for no other purposes; (ii) the individual is not permitted to retain copies of

the Protected Material after the individual is examined regarding the

Protected Material; and (iii) the individual is explicitly informed by Counsel

for the Party seeking to use the Protected Material that this Protective Order

forbids him or her to disclose the Protected Material except as permitted

under this Protective Order and that he or she is subject to the Court’s

jurisdiction for the purposes of enforcing this Protective Order;

(i) a witness who has been subpoenaed or noticed for deposition, trial

testimony, or other court proceeding in this Action not otherwise authorized

to view the Protected Material in question, during that witness’ testimony

at a deposition, hearing, or trial in this Action, or in preparation for the same,

provided that (i) the disclosure is made for the purpose of advancing the

disclosing Party’s claims or defenses, and for no other purposes; (ii) the

witness is not permitted to retain copies of the Protected Material after the

witness is examined regarding the Protected Material; and (iii) the witness

is explicitly informed by Outside Counsel for the Party seeking to use the

Protected Material that this Protective Order forbids him or her to disclose

the Protected Material except as permitted under this Protective Order and

that he or she is subject to the Court’s jurisdiction for the purposes of

enforcing this Protective Order;

(j) relevant employees of any insurer or auditor to a Party to the extent that

such disclosure is reasonably necessary for the defense of that Party in this

Action and who have signed the “Agreement To Be Bound By Protective

Order” (Exhibit A);

(k) any other person agreed to by the Designating Party in writing; and

(l) any other person to whom the Court compels disclosure of the Confidential

Material or to whom disclosure is required by law, subject to the

requirements of Section 15 below.

Any disclosure permitted by this section may only be made to the extent reasonably

necessary to prosecute or defend this Action.

7.4. Disclosure of Highly Confidential Material: Unless otherwise ordered by the Court

or permitted in writing by the Designating Party, material designated “Highly

Confidential” may be disclosed by a Receiving Party only to the following persons:

(a) the Receiving Party’s Counsel;

(b) Experts and/or Consultants retained by a Party or its Counsel to serve as an