Notable Quotables from MBIA’s Memo of Law To Unseal Bank of America Documents & Bring them into Public Record – “removing confidentiality restrictions” “The parties have deposed over 150 witnesses to date, and marked over 4,000 exhibits in the process”

Plaintiff MBIA Insurance Corporation (“MBIA” or “Plaintiff”) respectfully submits this memorandum of law in support of its application for an order removing confidentiality restrictions from the following categories of documents produced by Defendants Countrywide Home Loans, Inc., Countrywide Securities Corp., Countrywide Financial Corp., Countrywide Home Loans Servicing, LP (together, “Countrywide”) and Bank of America Corp. (“BAC”) (together with Countrywide, “Defendants”) in this action: (1) party deposition transcripts; (2) documents used as exhibits in party depositions; (3) expert reports; (4) documents used as exhibits to expert reports, and (5) materials relied on by expert witnesses. MBIA does not seek removal of confidentiality restrictions from documents produced by third parties, transcripts of third party witness depositions, or portions of documents that reveal personal information about witnesses or third parties (including borrowers).

If the confidentiality designations are not removed from the categories of documents described above, the parties, the Court, and the public will be unduly burdened by the need to comply with the Protective Order’s restrictions—including filing documents under seal, redacting briefs that refer to purportedly confidential documents, and restricting public access to documents and court proceedings. Under well-settled New York law, court filings are presumptively public…

Thus, the party seeking confidential treatment of a document bears the “substantial burden” of demonstrating that the information it seeks to file under seal merits such protection.

This Court has recognized the foregoing principles in this case, instructing the parties on multiple occasions to limit the number of documents they seek to file under seal. On January 22, 2009, the Court instructed the parties that it expected “rather detailed papers” on a sealing motion, “because I’m not one to grant that willy-nilly.” 1/22/09 Tr. 48:22-49:5. After the parties filed pleadings on a motion to dismiss under seal, the Court admonished the parties that, “[y]ou know, there is going to be some new sealing issues coming up which are going to tighten up the ship a great deal. What both sides believe is absolutely a sealable event is not going to be found sealable by this Court very much longer. . . . So, sealing really means something that is of utmost importance to the inner core of the existence of the various corporations.” 12/9/09 Tr. 6:9-22 (emphasis added). During a subsequent hearing, the Court reminded the parties that, “[t]his is an open court, this is an open courthouse,” and that confidentiality should be restricted to documents that “go[] to the fundamental being of the individuals involved, the corporations involved.” 9/27/10 Tr. 46:13-17.

For example, BAC stamped the “Red Oak Merger Corporation First Supplemental Indenture,” dated July 1, 2008, as “Highly Confidential,” Oblak Aff., Ex. 10 (BACMBIA-C0000160291, et seq.), even though this document was publicly filed with the SEC and is freely available online. Oblak Aff., ¶ 11. Defendants have similarly insisted on confidential treatment for deposition transcripts and expert witness materials, seemingly without regard to whether those materials actually contain confidential information.

Countrywide’s and Bank of America’s over-designation of documents and information is not only contrary to the Court’s instructions and the well-settled case law discussed above, it threatens to make the impending briefing and argument of summary judgment unmanageable. The parties have deposed over 150 witnesses to date, and marked over 4,000 exhibits in the process. Oblak Aff., ¶ 13. The parties have exchanged reports from more than thirty expert witnesses, each of whom has attached exhibits and relied on voluminous materials. Id. A substantial portion of this material is likely to be attached to summary judgment briefs or marked as evidence at trial. The administrative burden of preserving the purported confidentiality of this material is potentially enormous, for both the parties, the Court, and the public. The parties will have to prepare confidential material for filing in sealed envelopes, and will have to redact any mention of this material from public versions of their briefs. The public in turn will be harmed because the publicly-filed, redacted versions will be incomprehensible. There is no sound reason to incur these costs for documents that were over-designated and do not qualify for Confidential or Highly Confidential treatment under the Protective Order.

Contrary to Countrywide’s earlier objection that MBIA was asking for review of 10 million documents, the universe of materials now at issue is fewer than 10,000 documents. Specifically, MBIA seeks to remove the confidentiality restrictions from five narrow categories of documents: (1) party deposition transcripts; (2) documents used as exhibits in party depositions; (3) expert reports; (4) documents used as exhibits to expert reports, and (5) materials relied on by expert witnesses.2

To the extent Defendants wish to keep a Confidential or Highly Confidential designation on the materials addressed by this motion, they bear the “substantial burden” of demonstrating that the information they seek to file under seal merits such protection. Mosallem, 76 A.D.3d at 349; see also Visentin, 2004 WL 1900407, at *2. They cannot simply stamp documents “Confidential” and “Highly Confidential” without regard to the documents’ content. Rather, they must come forward with evidence supporting their contention as to each specific document that they seek to keep designated.

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Category: Legal, Think Tank

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