FILED: NEW YORK COUNTY CLERK 12/11/2015 06:11 PM INDEX NO. 778000/2015 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/11/2015 Appendix D
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART 60 PRESENT: Hon. Marcy S. Friedman, J.S.C. IN RE: PART 60 RMBS INVESTOR LITIGATION Index No. 778000/2015 THIS DOCUMENT APPLIES TO ALL CASES PART 60 RMBS INVESTOR ACTIONS [PROPOSED] CASE MANAGEMENT ORDER
It is hereby ORDERED that disclosure shall proceed as follows: (1) PREAMBLE (a) This Case Management Order ( CMO ) shall govern each of the actions assigned to the master file known as Part 60 RMBS Investor Litigation by the Master Filing Order of this Court dated August 28, 2015, together with any subsequently filed actions that are assigned to the Part 60 RMBS Investor Litigation master file (together, the Investor Actions ) unless ordered by the Court. This CMO is to be construed as separately entered in each of the Investor Actions. To the extent that this CMO refers to parties to an Investor Action, such language shall be construed as applying to parties to a specific Investor Action and not to all parties in all Investor Actions. (b) The Court finds that cooperation among counsel and parties in the Investor Actions is necessary to achieve efficiencies and coordination among the Investor Actions. The communication, transmission or dissemination of information among the plaintiffs and their counsel, and among defendants and their counsel, shall not be deemed a waiver of the attorney-client privilege, the protection afforded by the attorney work-product doctrine, the protection afforded material prepared for litigation, the joint prosecution or joint defense privilege, the common-interest doctrine, or any other privilege or immunity to which a party may be entitled. Any cooperative efforts, as described, shall not, in any way, be used against any of the parties, shall not constitute or be cited as evidence of conspiracy, concerted action, or any wrongful conduct, and shall not be communicated during dispositive motions or at trial. The exchange of information or documents by counsel will not, by itself, render such information or documents privileged. Nothing in this paragraph shall in any way affect the applicability of any privileges or protection against disclosure otherwise available under law. (2) STEERING COMMITTEES (a) Appointment of Steering Committees to act on behalf of Plaintiffs and Defendants in the Investor Actions will facilitate communications among the Court and counsel, minimize duplication of effort, facilitate coordination of joint positions, and provide for the efficient progress and control of these litigations. (b) Subject to the right of any party to any particular action to present individual positions to the Court, the Steering Committees are vested by the Court with the following responsibilities and duties: (i) To consider and propose future case management orders or amendments thereto; (ii) To coordinate, to the extent practicable, briefing with respect to motions where common issues briefing has been ordered by the Court; Page 2
(iii) To coordinate the argument of such motions; (iv) To coordinate the selection of counsel to act as spokespersons at conferences; (v) To call meetings of counsel for Plaintiffs and/or Defendants in the Investor Actions, as applicable, for the purpose of proposing joint actions, including but not limited to response to questions and suggestions of the Court or of parties with regard to order, schedules, briefs or stipulations; (vi) To notify other Plaintiffs or Defendants counsel in the Investor Actions, as applicable, of communications received from the Court; (vii) To notify other Plaintiffs or Defendants counsel in the Investor Actions, as applicable, of common issues being briefed before the Special Master before the opening brief is filed, to the extent such common issues are brought to the respective Steering Committees attention in advance of the filing; and (viii) To maintain a master list of all counsel in the Investor Actions. (c) The Plaintiff Steering Committee for the Investor Actions shall be comprised of the following Plaintiffs counsel: Joel H. Bernstein, Labaton Sucharow LLP; and John J.D. McFerrin-Clancy, McFerrin-Clancy PLLC (d) The Defendant Steering Committee for the Investor Actions shall be comprised of the following Defendants counsel: Richard W. Clary, Cravath, Swaine & Moore LLP; and James Rouhandeh, Davis Polk & Wardwell LLP. (e) The Steering Committees for the Investor Actions shall coordinate with one another and with the Steering Committees for the Putback Cases and the Monoline Cases to achieve, to the extent appropriate, uniformity of coordination procedures across the RMBS Investor Actions, Putback Cases and Monoline Cases. (f) Notwithstanding the appointment of the Steering Committees, each counsel of record shall have the right to participate in all proceedings before the Court as fully as such counsel would have the right to do absent this CMO and to the extent such counsel deems necessary. Page 3
(g) The Steering Committees shall not have the right to bind any party as to any matter without the express consent of counsel for that party. (h) Notwithstanding their participation on a Steering Committee, the members of the Steering Committees shall remain free to represent the interest and positions of their respective clients at all times. For the avoidance of doubt, firms and lawyers participating on a Steering Committee shall not be considered counsel for any party in the Investor Actions other than the party or parties on behalf of whom that firm and lawyer has appeared as of record. (i) To facilitate communications between the Court and the Steering Committees, the following Liaison Counsel are hereby appointed: Joel H. Bernstein, Labaton Sucharow LLP (for the Plaintiff Steering Committee); and Richard W. Clary, Cravath, Swaine & Moore LLP (for the Defendant Steering Committee). (3) BILL OF PARTICULARS (See CPLR 3130(1)): (a) Demand for a bill of particulars shall be served by N/A on or before N/A. (b) Bills of particulars shall be served by N/A on or before N/A. (4) DOCUMENT PRODUCTION: (a) Responses and/or Objections to any demand for discovery and inspection shall be served on or before 30 days from service of the demand. Documents responsive to any demand not objected to shall be produced or made available for inspection on a schedule agreed to by the parties. (b) Requests for Production can be served beginning upon the later of the entry of this CMO by the Court or the expiration of the initial time to move to dismiss, or in the absence of a motion to dismiss, answer, in a given Investor Action (for each Investor Action, the Opening Date ). (c) Party document discovery shall be substantially completed on or before 10 months after the Opening Date. Party document discovery, including service of any document discovery motions subject to the terms of this CMO, shall be completed by 12 months after the Opening Date. (d) Non-party document discovery shall be completed on or before 16 months after the Opening Date. Page 4
(e) For the avoidance of doubt, this CMO does not authorize materials produced in one Investor Action to be produced to parties in a different Investor Action, nor shall any materials produced in one Investor Action be deemed to have been produced in any other Investor Action. A party may designate any production as being made across more than one Investor Action where it believes it is appropriate to do so. (f) For any requests for production that pertain to the same Defendant Group, 1 plaintiffs in the Investor Actions that bring claims against the same Defendant Group shall coordinate and serve a joint set of requests for documents on the Defendant Group in the actions in which a member of the Defendant Group is a party. For any requests for documents that pertain to a Plaintiff Group, 2 defendants in the Investor Actions that are subject to claims by the same Plaintiff Group shall coordinate and serve a joint set of requests for production on each Plaintiff Group across the actions in which a member of the Plaintiff Group is a party. Each party in an individual Investor Action may serve supplemental requests for production relating to that action. (g) Any requests for production served before January 16, 2015 in any of the Investor Actions shall remain in place, subject to further order of the Court. (h) The parties in the Investor Actions are to meet and confer regarding a protocol governing privilege reviews and logs (per Commercial Division Rule 11-b) by one month from the Opening Date. (5) INTERROGATORIES: (a) Answers and/or Objections to any interrogatory shall be served on or before 30 days from service of the interrogatory. (b) Interrogatories can be served beginning upon the Opening Date; and may be served thereafter for 13 months. 1 Defendant Group refers to any of the following groups of defendants: Credit Suisse (Asset Backed Securities Corp.; Credit Suisse (USA), Inc.; Credit Suisse First Boston Mortgage Securities Corp.; Credit Suisse Holdings (USA), Inc.; Credit Suisse Securities (USA) LLC; Credit Suisse First Boston Mortgage Acceptance Corp.; Credit Suisse Management LLC and DLJ Mortgage Capital, Inc.); Goldman Sachs (Goldman Sachs Real Estate Funding Corp.; Goldman, Sachs & Co., GS Mortgage Securities Corp.; Goldman Sachs Mortgage Company; and The Goldman Sachs Group, Inc.); Morgan Stanley (Morgan Stanley & Co. LLC; Morgan Stanley Capital I, Inc.; Saxon Funding Management LLC; Morgan Stanley Mortgage Capital Holdings LLC; Morgan Stanley; Saxon Asset Securities Company; Morgan Stanley ABS Capital I, Inc.; Morgan Stanley Credit Corporation; and Saxon Mortgage Inc.); Natixis (Natixis Real Estate Holdings LLC, successor-in-interest to Natixis Real Estate Capital Inc. f/k/a IXIS Real Estate Capital Inc); and RBS (The Royal Bank of Scotland Group plc.; RBS Holdings USA, Inc.; RBS Securities, Inc.; RBS Acceptance, Inc.; RBS Financial Products Inc.; and Financial Assets Securities Corp.) 2 Plaintiff Group refers to any of the following groups of plaintiffs: DZ Bank (Deutsche Zentral- Genossenschaftsbank AG, New York Branch, d/b/a DZ Bank AG, New York Branch ); HSH Nordbank (HSH Nordbank AG; HSH Nordbank AG, Luxembourg Branch; HSH Nordbank Securities S.A.; and Carrera Capital Finance Limited); IKB (IKB Deutsche Industriebank AG and IKB International S.A. in Liquidation); and LBBW (Landesbank Baden-Württemberg; Georges Quay Funding I Limited; and Spencerview Asset Management Limited). Page 5
(c) For any interrogatories that pertain to the same Defendant Group, plaintiffs in the Investor Actions that bring claims against the same Defendant Group shall coordinate and may serve up to 20 joint interrogatories, including subparts, in the actions in which a member of the Defendant Group is a party. For any interrogatories that pertain to a Plaintiff Group, defendants in the Investor Actions that are subject to claims by the same Plaintiff Group shall coordinate and may serve up to 20 joint interrogatories, including subparts, in the actions in which a member of the Plaintiff Group is a party. Each Defendant Group and Plaintiff Group in an individual Investor Action may serve up to five supplemental interrogatories, including subparts, relating to that action. (d) Any interrogatories served before January 16, 2015 in any of the Investor Actions shall remain in place, subject to further order of the Court. (6) ELECTRONIC DISCOVERY, if any: Have all parties met and conferred about how electronic discovery will be conducted? Yes X No Have the parties entered into a stipulation governing electronic discovery? Yes X No The parties have entered into a stipulation governing electronic discovery: See Part 60 Investor Actions - Stipulation and Order Regarding ESI Document Production Protocol, filed June 15, 2015, and other directives with respect to electronic discovery: See Part 60 Investor Actions - Stipulation and Order for the Production and Exchange of Confidential Information, filed July 13, 2015 (the Protective Order ). (7) DEPOSITIONS: (a) Plaintiffs depositions, Defendants depositions and non-party depositions shall be completed on or before 16 months after the Opening Date. (b) Unless otherwise agreed by the parties to a particular Investor Action, depositions shall not commence until 12 months after the Opening Date. (c) The Parties shall submit a proposed deposition protocol to the Special Master on or before 10 months after the Opening Date. If the parties are unable to agree on a deposition protocol on or before 10 months after the Opening Date, the parties shall submit their positions concerning their dispute to the Special Master by that date. The deposition protocol shall address cross-noticing of depositions across the Investor Actions. Page 6
(8) OTHER DISCLOSURES AND PRODUCTION: (a) Plaintiffs Priority Document Production. Within 45 days from the Opening Date (except that to the extent that the parties in a given Investor Action have mutually agreed to exchange the documents identified in Paragraphs 8(a)(i)-(iii) earlier than 45 days from the Opening Date, this CMO does not supersede or in any way prohibit such earlier exchange), each plaintiff in each of the Investor Actions shall perform a reasonable search of its centralized repositories and produce the following materials as they were maintained in the regular course of business to the extent that they can be located: (i) all documentation reflecting plaintiff s acquisition and ownership of the certificates at issue in the action and documents reflecting the disposition (if any) of the certificates at issue in the action; (ii) all agreements or documentation concerning plaintiff s standing to pursue the claims in the action; (iii) organizational charts that describe or identify personnel, departments, committees, groups or entities involved in the purchase of at-issue RMBS during the relevant time period; (b) Defendants Priority Document Production. Within 45 days from the Opening Date (except that to the extent that the parties in a given Investor Action have mutually agreed to exchange the documents identified in Paragraphs 8(b)(i)-(iv) earlier than 45 days from the Opening Date, this CMO does not supersede or in any way prohibit such earlier exchange), each defendant in each of the Investor Actions shall perform a reasonable search of its centralized repositories and produce the following materials as they were maintained in the regular course of business to the extent that they can be located: (i) loan tapes that the defendant reasonably believes reflect the final population of loans for each of the securitizations at issue in the action; (ii) organizational charts that describe or identify personnel, departments, committees, groups or entities involved in the origination of mortgage loans underlying at-issue RMBS, or the securitization or sale of at-issue RMBS during the relevant time period; (iii) closing sets of the securitizations at issue in the action. To the extent that the closing sets contain executed or final copies of agreements and other documents prepared in connection with the issuance of the securitizations those documents shall also be produced; and (iv) working group lists for the securitizations at issue in the action. (c) Loan Files and Guidelines. Within four months from the Opening Date, or 60 days from a plaintiff s service of a document request identifying the sample of loan files intended for re-underwriting purposes, whichever is latest, each defendant in each of the Investor Actions shall perform a reasonable search of its centralized repositories and produce the following materials to the extent that they can be located: Page 7
(i) any loan files that are at issue in the action; and (ii) underwriting guidelines of any originators disclosed in the relevant prospectus supplements (i.e., originators that originated 10 percent or more of the loans underlying the certificates at issue in the action). In the event that Loan Files and Guidelines are stored only in hard copy format, the deadlines specified above shall be extended to six months from the Opening Date, or 120 days from a plaintiff s service of a document request identifying the sample of loan files intended for re-underwriting purposes, whichever is latest. If necessary, the parties in each case will meet and confer regarding a stipulated procedure to determine promptly the underwriting guidelines that shall apply to each loan plaintiffs will place at issue and the contents of the loan files for such loans. Any disputes regarding such a stipulated procedure shall be referred to the Special Master for resolution. (d) Search Terms and Custodians. The following schedule shall apply for the exchange of, and agreement upon, initial search terms and the identification of initial custodians to the extent such exchange and agreement is applicable or relevant to a party s collection of documents and has not yet taken place in a particular Investor Action as of the date hereof. All dates are to be calculated from (i) the date on which a producing party is required by rule to serve written responses and objections to requests for production of documents, (ii) the date on which the parties exchange the priority documents identified in 8(a)-(b), or (iii) the date of entry of this CMO, whichever is latest. In the event the parties are unable to reach agreement on search terms and custodians, the parties shall refer the dispute to the Special Master for resolution. Parties Exchange Proposed Custodian Lists: 25 days Parties Finalize Initial Custodian Lists: 40 days Receiving Party Identifies Proposed Initial Search Terms: 40 days Producing Party Responds to Proposed Initial Search Terms: 60 days Parties Finalize Initial Search Terms: 75 days (9) END OF FACT DISCOVERY: All fact discovery shall be completed on or before 16 months from the Opening Date. Page 8
(10) EXPERT DISCOVERY, if any: (a) For each Investor Action, Plaintiffs shall identify their intended re-underwriting sample of loan files together with a supplemental sample of additional loan files on or before two months from the date on which production of loan tapes under Paragraph 8(b)(i) was completed in that Investor Action. The parties will negotiate in good faith to attempt to reach agreement as to parameters concerning the size of the supplemental sample, and if unable to reach agreement will bring that issue to the Special Master. Plaintiffs may seek further loan files by agreement of the parties or with leave from the Special Master for good cause shown. (b) Plaintiffs' expert reports shall be due one month after the completion of fact discovery. (c) Defendants' experts' rebuttals of Plaintiffs' expert reports shall be due four months after service of plaintiffs' expert reports. (d) Plaintiffs' reply expert reports shall be due two months after service of any corresponding defendants' expert reports. (e) Expert depositions shall be completed within two months of service of plaintiffs' reply expert reports. (11) IMPLEADER: Impleader shall be completed on or before 12 months from the Opening Date. (12) END DATE FOR ALL DISCLOSURE: (a) All fact disclosure shall be completed on or before 16 months from the Opening Date; all expert disclosure shall be completed on or before 25 months from the Opening Date. (b) Any stipulation staying discovery or other proceedings or extending or otherwise modifying any provision of this CMO must be so ordered by the Court, provided that interim discovery deadlines may be extended with the approval of the Special Master so long as such extension does not extend the end date for fact discovery or the end date for expert discovery. (c) Subject to further order of the Court, this CMO does not amend, alter or supersede any existing so-ordered agreement of the parties in any individual Investor Action to stay discovery or other proceedings. Page 9
(13) COMPLIANCE CONFERENCE: The Special Master shall convene and conduct discovery compliance conferences on a regular basis. (14) DISPOSITIVE MOTIONS: (a) The Parties shall submit a proposed joint schedule for dispositive motions on or before 12 months from the Opening Date. If the parties are unable to agree on a schedule for dispositive motions on or before 12 months from the Opening Date, the parties shall submit their positions on any disputes to the Court by that date. (15) NOTE OF ISSUE: Plaintiffs shall file a note of issue/certificate of readiness no later than seven days after the close of expert discovery. A copy of this order shall be served and filed with the note of issue. (16) MODIFICATION: (a) Parties seeking relief from any provision of the CMO for good cause shown shall notify the Court by a two-page joint letter setting forth, with specificity, the parties position(s) with respect to the reasons for such relief. The Court will consider such requests on a case-by-case basis. The Court will schedule a further appearance by the parties or briefing, as appropriate. Individual cases should adhere to the discovery deadlines set forth in this CMO whenever reasonably possible. Extensions of interim deadlines shall be made pursuant to paragraph 12(b) above. (b) Any party that seeks a stay of discovery in a particular case shall submit a formal application to the Court requesting such a stay. Such application shall be made by notifying the Court by a two-page joint letter setting forth with specificity the parties position(s) with respect to the reasons for such relief. The Court will consider such requests on a case-by-case basis. The Court will schedule a further appearance by the parties or briefing as appropriate. (c) The parties should exercise restraint in requesting stays pending motions to dismiss or otherwise. The parties are referred to the transcript of the Court s conference call with liaison counsel on August 26, 2015, filed in index number 650312/13, at page 14, for discussion of possible circumstances in which a stay of discovery may be approved. (d) Cases assigned to this Part subsequent to the date of entry of the CMO shall be bound by the CMO unless otherwise ordered by the Court. The parties in such cases shall notify Page 10
the Court of any objections to the CMO within 20 days of the filing of the RJI in the respective case. (e) This order is subject to further review and revision by the Court as discovery proceeds. THE DATES SET FORTH HEREIN MAY NOT BE ADJOURNED EXCEPT WITH APPROVAL OF THE COURT. THE PARTIES MUST BRING COPIES OF ALL DISCLOSURE ORDERS TO ALL CONFERENCES. Page 11
ADDITIONAL DIRECTIVES In addition to the directives set forth above, it is furthered ORDERED as follows: SO ORDERED: Dated: Marcy S. Friedman, J.S.C. Page 12