bransten clerk

Exhibit 13

FILED: NEW YORK COUNTY CLERK 11/26/2012 INDEX NO. 602825/2008

NYSCEF DOC. NO. 3346-2 RECEIVED NYSCEF: 11/26/2012

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: TRIAL TERM PART 3

- - - - - - - - - - - - - X

MBIA INSURANCE CORPORATION,

Plaintiff,

- against -

COUNTRYWIDE HOME LOANS, INC., COUNTRYWIDE SECURITIES CORP., COUNTRYWIDE FINANCIAL CORP., COUNTRYWIDE HOME LOANS SERVICING., L.P., and BANK OF AMERICA CORP.,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - X Index No. 602825/08

November 15, 2012 60 Centre Street New York, New York 10007

B E F 0 R E: THE HONORABLE EILEEN BRANSTEN, Justice.

Page 1

( APPEARANCES:

( ' )

McCUSKER ANSELMI ROSEN CARVELLI Attorneys at Law 210 Park Avenue, Suite 301 Florham Park, New Jersey 07952 BY: BRUCE S. ROSEN, ESQ.

MBIA INSURANCE CORPORATION Plaintiff 113 King Street Armonk, New York 10504 BY: JONATHAN C. HARRIS, ESQ.

Deputy General Counsel

(Appearances continued on next page.)

Terry-Ann Volberg, CSR, CRR, Official Court Reporter

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A P P E A RAN C E S: (Continued)

QUINN EMANUEL URQUHART & SULLIVAN, LLP Attorneys at Law 51 Madison Avenue, 22nd Floor New York, New York 10010 BY: MANISHA M. SHETH, ESQ.

SARAH E. TROMBLEY, ESQ.

GOODWIN PROCTOR LLP Attorneys at Law 620 Eighth Avenue New York, New York 10018-1405 BY: MARK HOLLAND, ESQ.

SARAH HEATON CONCANNON, ESQ. DAVID FREEBURG, ESQ.

O'MELVENY & MYERS LLP Attorneys at Law 7 Times Square New York, New York 10036 BY: DANIEL L. CANTOR, ESQ.

Page 2

Terry-Ann Volberg, CSR, CRR Official Court Reporter.


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THE COURT: All right. We will begin.

Before we begin I have a statement to make

which leads me to read my statement.

Recently I hired a new principal court

attorney. As you know, Mr. Hardman went on to better

things, according to him. I don't know if I'll ever

agree. Her name is Kelly Mauceri, M-A-U-C-E-R-I. She

comes to my chambers from the law firm of Patterson

Belknap Webb & Tyler.

I am disclosing Ms. Mauceri's work before me

since Patterson Belknap represents monoline insurers

Ambac in another case before me. As you all know this

Ambac case, Ambac v. Countrywide, involves a suit

brought against Countrywide and Bank of America

alleging breaches of representations and warranties

made in an insurance agreement pertaining to

securitizations.

As you likely know, the Ambac case is the

most recently filed, and, therefore, the youngest case

of the three securitization cases that remain before

me, MBIA, FGIC and Ambac. We had Sakura, but that

settled. Ambac is in its very preliminary stages.

Comparing the cases, I would say Ambac is

like an eight year old while MBIA is a 21 year old

graduating from college, a precocious 21 year old


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graduating from college. The cases are in very

different stages in their development, and Ambac trails

far behind them.

Since Ms. Mauceri comes from Patterson

Belknap, in an exercise of caution I asked the Advisory

Committee on Judicial Ethics for an opinion on Ms.

Mauceri's ability to work on securitization cases

pending before me. Indeed, as I decided even before

Ms. Mauceri began working with me, she will not be

working on the Ambac v. Countrywide litigation brought

by Patterson Belknap. I think that's very clear.

However, for this litigation and the litigation brought

by FGIC against Countrywide I have consulted with the

Advisory Committee on Judicial Ethics.

I sought advice from the Advisory Committee

as to whether Ms. Mauceri may work on MBIA and FGIC

cases against Countrywide given that she worked at

Patterson Belknap, but, this is very important, never

worked on behalf of MBIA or FGIC, and never actually

worked on the Ambac case at Patterson Belknap. I mean,

she knew people who were working on Ambac cases, but

she did not personally work on the Ambac case. And,

also, what I think is very important, is that she

didn't attend any of the planning meetings involved in

the Ambac case at Patterson Belknap.


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She has never worked on any litigation

brought by Patterson Belknap versus Countrywide and

Bank of America. However, Ms. Mauceri did work on a

breach of contract suit involving securitization

brought by a different monoline insured, Assured

Guaranty, against a different bank, the bank, DB

Structured Products. This case is pending before a

different judge, and to my knowledge neither the

plaintiff in that matter nor the defendant has any MBIA

related cases pending before me. I have been told

informally yesterday, I received an informal letter and

also I talked to Judge Marlow and other members of the

Advisory Committee that were involved in the decision

making on my inquiry towards them, I have been told

informally by the Advisory Committee that there is no

bar to Ms. Mauceri working on the MBIA and FGIC matter.

This decision as to whether she works on these cases

for me is a matter which is actually conducive with my

personal discretion.

I await the formal letter from the Committee

conveying this opinion. Unfortunately approval of the

formal letter has taken some additional time, a great

deal of additional time, given the logistic issues due

to the hurricane. That is the reason why there is not

a formal letter today.


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However, I wanted to let the parties know as

soon as possible that I intend for Ms. Mauceri to work

on this case and on the FGIC case.

Barring anything unforeseen and hearing any

arguments that may change my mind, I believe that I can

remain fair and impartial to the parties in this

matter. I also believe that Ms. Mauceri, having not

worked on these cases or on behalf of the parties in

these litigations, can be my principal court attorney

for the MBIA and FGIC matters.

When I get a formal letter from the Advisory

Committee I will disseminate it to the parties. The

letter will also be made public. I will probably get

the letter, I think, before its publication in the Law

Journal.

I believe you get a formal letter.

what number it is. It is Opinion Number

keep it on your radar screen. I have it

I know

so you can

well, it's

one of those things. We will have to e-mail it to you.

I have it upstairs.

with me.

I'm sorry. I meant to have it

The informal letter says -- actually, I know

there are a couple of little detail problems. They

called Ms. Mauceri a junior associate. She was not a

junior associate, she was a senior associate. So, I


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mean, those kind of little details are of tremendous

importance to the parties and probably of no importance

to anybody else.

So hopefully with these corrections we will

go on. That's what I wanted to let you know.

Ms. Mauceri is not sitting next to me because

the formal letter has not come down, but I think

between now and the next time you come back there will

be, I think, an opportunity, if you so wish, to make

whatever comments. But, as I say, my inclination is, I

can't see any problems with that, but, you know,

obviously you will want to discuss it with your clients

and give it some thought.

With that, on to sealing. I must say, we

spent a good deal of time on sealing so far. I know

all of you made your best efforts for me to get all of

the documents that I needed, et cetera, et cetera. You

really did do a good job doing that.

I have read your memoranda of law, I have

read your motions, I read Bloomberg's response to it,

and I have come to certain decisions already which I

think will facilitate continuing working on the

subject. There is going to be -- there are issues that

will not be resolved today, but we will go into what we

need to do in order to get me to the point where I can


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make decisions on it.

Page 8

So let's start at the beginning. Again, we

have written it out so I am actually going to read

somewhat a decision on to the record because I think

that's the easiest way instead of me writing a formal

decision. We may do a formal decision later on, but I

think that what I need to say now will really obviate a

lot of the piles and piles of questions that we have

out there.

Not that I want to quote from the federal

judge, but today there was a headline in the Law

Journal that says that -- this is on another case

obviously -- it said there was a ''stew of material.'' I

don't think of it as a stew. I think of it as a

goulash.

Going on: The parties have philosophical

differences regarding the scope of documents that would

be placed under seal in this case. As a framework for

our discussion today the court points out that there is

''a broad constitutional proposition arising from the

First and Sixth Amendments as applied to the state by

the Fourteenth Amendment that the public as well as the

press is generally entitled to have access to court

proceedings.'' Quoting from the Danco Labs, Ltd. v.

Chemical Works of Gedeon Richter, Ltd. at 274 A.D.2d 1


Proceedings

(First Department 2000) .

Page 9

22 NYCRR 216.1 requires a showing of good

cause for the court to seal documents in whole or in

part. I think in another case the standard is

basically a compelling standard. In the court's point

of view compelling is basically higher than practically

beyond a reasonable doubt. So we are talking about a

very high standard that the court has to find in order

to actually seal any document whatsoever in an open

proceeding.

Here I want to make the differentiation that

when we were doing discovery and we work under a

confidentiality agreement put forth basically as

amended, put forth by the city bar, that particular

document has worked very well for all the extensive

amount of discovery that has occurred in this case.

But now we are at the summary judgment level which is a

level that requires the court to consider public

documents. Now that's the reason why we are here

today.

Nonetheless, the parties and the courts are

in agreement that certain information should be

redacted from public filings to protect the privacy of

borrowers who are not parties to this litigation and

they include the borrowers names, the borrowers social


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security numbers, and the borrowers addresses.

As to the borrowers occupation, the parties

dispute whether the borrowers occupation should be made

public. Countrywide argues that the borrowers

occupation should be redacted, while MBIA and Bloomberg

argue they should be revealed to the public.

My decision is as follows: There is a strong

public interest in the borrowers occupations, but such

information should not be so specific as to reveal the

identity of the individual borrowers. For example, if

a borrower is a sole owner of a business or if the

borrower's job is described in great detail, such

information should be modified in the following manner:

Only a general job title, type of business and

reasonably specific geographical information is

necessary. All other information may be redacted.

Let me give you an example. There were a

couple of examples that I think were in the Countrywide

briefs, but let me give you an example. Instead of

saying Borrower A is a receptionist at a clothing

manufacturing plant in Boone County, West Virginia. By

the way, I looked it up, Boone County, et cetera.

That's what you would have to do to see if the

population of Boone County is such that saying that a

person is a receptionist at a clothing manufacturing


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plant would be sufficiently unspecific. It just does

not work. There is not going to be an opportunity for

anyone of us to go through that exercise. You can't

say to me, look, I took the geographic there are

1,000 clothing manufacturing plants in Boone County.

Therefore, saying she is a receptionist at one of them

would be sufficient. You wouldn't be able to identify

that particular person.

So what I suggest we do is Borrower A is a

receptionist at a manufacturing plant in southern West

Virginia. That gives, I think, a sufficient amount of

information as to that person's occupation that you

don't have enough specificity. I mean, I have a couple

of others examples. If you want me to, we can go over,

try to work out a few examples to give us a good

framework of what we are talking about in terms of what

I want in terms of specificity. But, also, I want to

make sure that you are not going to be able to through

that description find out it's Miss So-and-So, age 46,

living at such an address. That I don't want to

happen.

So with that, we will work out that. And, of

course, I would say to you that I think you can

probably work it out, the two of you, three of you,

work it out so that we can have that kind of


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occupational description.

I mean, for example, if you took in

Manhattan, if you said that person was a receptionist

at a manufacturing plant in Manhattan, this is no

longer the manufacturing capital of the western world.

I am not saying there is not a lot of manufacturing

going on, but it just isn't. It's not even as though

it's in Brooklyn. So, again, you have to -- I think, I

mean, yes, there are a lot of clothing manufacturing

businesses in Manhattan, but I don't think it's

sufficient to really -- again, I want it a little

broader. But at the same time the idea that that

person is a receptionist, that's the key issue. The

key issue is the nature of that person who got the

loan, the nature of the occupation.

Now, with that in mind, we get to

Countrywide's 150 voluminous spreadsheets which, thank

you, you did provide me in the end, and I did take a

look at them. I didn't look at many of them, but I did

take a quick look at what you are talking about.

Countrywide asserts that 150 voluminous

spreadsheets are peppered with personal data that would

be difficult to redact; therefore, the spreadsheets

should be sealed in their entirety. I didn't -- you

know, I couldn't spend, because it came in very late, I


Proceedings

couldn't spend too much time on them, but my idea -

let me ask a question.

Off the record.

(Discussion off the record.)

THE COURT: It is my understanding of these

spreadsheets that, yes, indeed we have the name of the

person, the next column is the address of the person,

the next column is the social security number of the

person. I don't know if I am doing it in the right

order. Maybe the first column is the loan number, then

going forward.

It is my view, and now I am not saying it's

entirely everything that has to be done, but it is my

view that you can, with my decision as to names and

addresses and social securities, that you can eradicate

those entire columns. I may not be a computer wizard,

but you can eradicate the entire column. Maybe that's

a doable event. Whatever happens, it would have to be

a doable event. We will have to be able to, indeed,

clean up these spreadsheets, personal data, and then,

again, I have not quite finished with all the decisions

I made, maybe we can come back to the spreadsheet. I

know there is a mechanism by which we can work with it.

After that is said and done, and it is

cleaned up, if it's personal, with the personal


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information, it's a public document.

There is nothing, nothing, despite the hard

work it will be, there is nothing that makes it a

proprietary interest of Countrywide or Bank of America

to not disseminate the information.

But, again, we have to clean it up. I don't

know if this is true, I am not a computer maven, but I

think you can eradicate the entire columns.

Okay.

MR. HOLLAND: I am told it depends on the

document.

THE COURT: From what we looked at, we

looked at some like that. The others I am not exactly

sure how it's organized. But, anyway, that's what I

want.

Now, we get to the loan numbers. Very

important. Loan numbers need not be revealed in their

entirety. The parties are to identify loan numbers

using the number of the securitization and the last

four digits of the loan number. That way we have some

degree of identification.

I mean, obviously if we eradicate all the

other information you have to have something that makes

it unique to securitization one or securitization 15,

and also involving that particular loan number. So my


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thought was this: If you have securitization number

one, loan number 12345678, that will become 1-5678.

It's a bit like we do with social security numbers. If

for the same securitization the last four digits of the

number are repeated more than once, which it could

happen because of the number of loan documents

involved, the parties will add an A, dash A, dash B,

dash C, to the end of the last four digits of the loan

number.

I had one case when I was in matrimonials

where we went up to 32 As. In other words, it went A,

B, C all the way up to Z. Then we started all over

again. There was double A, et cetera. At one point we

had a couple of numbers, four As or eight As or

whatever. Finally we decided, I came up one day and

said this is ridiculous, we will do 10-A. That was the

tenth series of A, B, C. It's doable even with the

numbers repeating each other.

Now we get to the issue of witnesses names,

names and job titles of witnesses that are being used

in the summary judgment motions. Now, again, remember,

this has to do with the summary judgment motions. It's

the same thing, if you are in the medical malpractice

environment, if you are using a doctor's -- I will get

the experts in a second-- if you are using a doctor's


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name to tell me that there was a deviation from the

medical standards in the community, that doctor has to

be identified. If you are using a witness, a witness

that you are saying, since there is nothing off the

record or anything like that, that witness in the

summary judgment motion has to be identified the same

as if you called that witness to the witness stand,

because, after all, summary judgment is in lieu of

trial. That's the idea of it, right? It's defined

that there are no facts to be tried by a jury in this

case. Likelihood of success, that's a different issue

because there are lot of issues, but, anyway, that's

what it is.

And if a witness comes to court and raises

his or her left hand -- right hand, and says they are

going to tell the truth, that person then identifies

themself on the record with their name and address. At

that point, you know, the address and name, that person

is a public person, in that sense.

In the same way we will do that for, for

witnesses or materials that you will be using in your

summary judgment motions. So if you use a witness

that -- if you are quoting from an affidavit or

deposition of those witnesses in conjunction with the

summary judgment motions, that name and job title of


Proceedings

the witness must be revealed. An affidavit or

deposition submitted in support of a motion for summary

judgment is akin to the trial, just as I stated.

No other personal information of that witness

need be disclosed. Names and job titles of witnesses

who have not submitted affidavits need not be disclosed

at this time because they are not part of the summary

judgment motion.

When we get to trial preparation, that's a

different issue. If and when we do get to trial

preparation, we are now ready, and I do a disclosure,

and I say you have to disclose the names of witnesses

you will be calling, then you have to give me names,

addresses -- not addresses names, job titles and

basically what that person will be saying.

One thing: I want to make sure -- I don't

want ten persons saying the same thing just because we

want cumulative type of information. That's why a

brief description of what that person will be saying is

important at the trial stage. But, again, this is

witnesses.

Experts: Experts even in a summary judgment

motion, names, job titles and business experts,

addresses of expert witnesses, will also be made public

because experts are different from ordinary witnesses.


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Then came an issue of documents protected by

confidentiality orders issued by other courts. And

that came out really basically -- what happened is that

you had another case, and a deposition was taken in the

other case, and now you subpoenaed, whoever did, each

side subpoenaed the deposition testimony, and brought

it into this case so that you didn't have to go,

re-depose the person. So when it was brought in it

was, that deposition was covered by a confidentiality

order by another court. However, when it was

transformed into one of my documents, because now it

became part of this case, it is my confidentiality

order that protected that document, not the other

judge's, because while I have great respect for any

judge in the whole world, especially any other fellow

state judge or federal judge, whoever they are,

nevertheless, it is the confidentiality order that I

have in this case that protects whatever documents.

So, therefore, the idea that you say to me,

oh, you can't see this, this document should remain

sealed because there is a confidentiality order in

place through another judge, does not hold water with

this court. The confidentiality agreement is my

confidentiality agreement, and, so, therefore, we have

to go through the same exercise as we would had it been


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produced pursuant to this particular case in full.

Just to give it another explanation: Once

documents were subpoenaed and deemed produced they fell

under the confidentiality order I issued in this case.

The parties must then provide a compelling reason to

seal each document that they believe should remain

confidential. So that's the rubric there.

Now we get into more complex areas, and there

really are three of them, three different categories.

By the way, before I get into the next

portion of it, I think that those guidelines will

reduce the number of documents that eventually the

court will have to review in order to make a decision

on whether or not something should be sealed or not

sealed. So I think that if you go through those

parameters, you have reduced the pile substantially,

substantially, because even glancing at any one of your

documents, as, an example, taking the Countrywide

one -- no, this is not Countrywide, this is -- I am

talking randomly -- I want to take not an agreement

I see a lot of them are already agreed to which is

great, I am happy when they are agreed. Here's one.

All right.

This is in the Countrywide spreadsheet that

was on a disk that finally carne out. Written up it's


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better. Document number, roll number 712 comes from

Sheth affidavit, Exhibit 200. It's an e-mail from

Sharif Abdul (ph.) to, etcetera, etcetera. I will

not get into too much. It's an e-mail. It has a Bates

number. The party proposing the initial designation is

Countrywide, and what Countrywide wants is to redact

the whole paragraph beginning with ''Cindy'' on page one.

The reason why, proprietary. MBIA disagrees. They

want, MBIA wants it to be public. And the status of

that particular one is no agreement.

Now I have not gone through and found that

first paragraph. I don't know why, just reading this,

apart from a general statement, I don't know why that

first paragraph should be redacted. This is just not

sufficient for me to make a decision.

To say to me proprietary information in the

nature of current and future business strategy in

disclosure which will give competitors an unearned

advantage does not do it. It needs to be much more

detailed for me to actually come to a reasonable

conclusion, for me to come to a conclusion. Never mind

that I could come up with a conclusion, that's not the

issue. The issue is not that I could figure out a

mechanism to say, yes, that is proprietary and

accepted. It does not provide me with a compelling


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reason to do it. It's too broad; it's not sufficiently

detailed for me to come to a decision that this is a

compelling reason for me to do it.

I can think of a dozen reasons. I will not

get into that document and read it out loud and make

the analysis, but I can think of why it might be, but,

then again, the first paragraph of an e-mail, I don't

know, I really don't know. And, as I say, that won't

do. That will not be a reason for me to give you a

sealing order.

Now getting into the testimony related to

Countrywide's and Bank of America's current nonpublic

financial information: Countrywide seeks to seal

testimony related to Countrywide's current

profitability, shareholder equity, and legal fees and

Bank of America's internal capital management

strategies. Countrywide asserts this information is

proprietary and could potentially ''cause Countrywide

competitive harm."

Countrywide claims that the revelation of

these transcripts would harm Countrywide and Bank of

America, but Countrywide does not sufficiently explain

how and why such harm would incur. Countrywide must

flesh out these arguments in greater detail to show

good cause for sealing documents pursuant to 22 NYCRR


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216.1. So that's problem number one.

Problem number two: Documents pertaining to

Countrywide's repurchase process. In this motion

Countrywide also represents that documents and portions

of documents and transcripts related to Countrywide's

proprietary repurchase process should be sealed.

Countrywide does not provide much explanation as to the

types of documents and transcripts it seeks to seal.

However, in considering this request it strikes me that

Countrywide is discussing three distinct categories of

repurchase related documents each of which presents a

different analysis: One, documents related to MBIA's

repurchase requests to Countrywide for the

securitizations at issue in this case. Two, documents

related to repurchase requests from other entities to

Countrywide for other securitizations. And, three,

documents discussing general procedures, processes and

principles related to repurchase requests sent to

Countrywide.

As to the first category, which is documents

related to MBIA's repurchase requests, these documents

involved disputes central to this case including

whether Countrywide complied with contractual

repurchase remedies in the operative documents.

Countrywide claims that disclosure of these documents


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will cause Countrywide competitive harm. However,

Countrywide has not provided a sufficiently detailed

analysis of these documents, of how these documents

might harm it, nor has Countrywide weighed any

potential harm against the public interest.

Again, remember that it's always a balancing

thing, it is public interest versus compelling need,

compelling need for Countrywide to have it sealed.

Very, very important, both very important. But it's

compelling. That's what is missing in everything that

we have seen so far.

As to the second category which is documents

related to repurchase requests from other entities,

these documents will be sealed for the purpose of this

motion for summary judgment. While there may be a

public interest in the disclosure of these documents,

they concern securitizations that are not directly at

issue in this case. I, therefore, do not feel that I

should order those documents to be made public at this

time.

I will be open to revisiting this issue on a

document-by-document basis if necessary before trial.

I don't know who sealed them or who has not sealed

them, and what status they are in before other judges,

whether arguments have been made before the other


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judges, what the decisions of the other judges were.

It's just a whole -- it is just, I think, asking this

court to indeed undertake an exercise that's not

appropriate for this court to do at this time. I'm not

sealed on that. I am not saying that I will never

consider it, but I just think I need a lot more

information to be able to balance my stepping in on

somebody else's purview before, and making a decision

that affects them or her and not having a good basis

for it. So at this point I am sealing it. It remains

sealed until we certainly discuss it a good deal

further.

The third category of documents discussing

general procedures, processes and principles related to

the repurchase requests sent to Countrywide will not be

sealed if those documents do not reveal trade secrets

or other proprietary business information belonging to

Countrywide. And in this series of categories

Countrywide has not sufficiently shown how these

documents will reveal trade secrets or cause

competitive harm to Countrywide. Once again,

Countrywide must balance the publics interest in

assessing those documents against any harm to

Countrywide. So in a sense it falls a little bit -

it's a different category, but it falls in the same


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analysis as the first category.

Page 25

That in a sense ends -- I have other things

to talk about, about resubmitting the motions, Bank of

America's sealing motions and summary judgment motions,

but they are more timely.

Hold on a second.


THE COURT: Yes.

I have talked quite a long time. I am

interested if you have any comments, any discussion.

I have to say that we started with 63, motion

sequence 63, that was Countrywide's, followed by 64,

which was MBIA's. So by order of sequence, we will go

with Countrywide first.

MS. CONCANNON: Thank you.

The court obviously spent an enormous amount

of time working through these issues. We really do

feel with the guidance you provided that MBIA and

Countrywide should be able to work out agreements with

regard to the remaining documents.

Just to put this in context, there are 1,118

documents and exhibits that have been relied upon by

one or the other party in connection with summary

judgment. The other 640 of those are already public,

they have been docketed through the court system.


Proceedings

Another 45 have been made public with very minor

redactions. It's that remaining 400 universe, the

majority of which are those borrower-type documents,

that with the instructions the court has provided we

should be able to reach relatively quick agreements

with regard to.

The really only thing I wanted to speak to

was with regard to the logistics of the loan number

modifications that the court has proposed. I think for

trial what the court has described is absolutely

correct, and, in fact, is what Judge Rakoff recently

did with the Flagstar trial which just completed a few

days ago.

For summary judgment purposes, to put this in

context, those voluminous spreadsheets often have a

borrower loan number in every single line.

Mr. Freeburg informs me that there could be hundreds of

thousands of loan numbers that would need to be

modified across the documents.

We do believe that under New York law a loan

number is a bank account number. There is a risk that

a borrower could be identified through this number.

There is an obligation to keep it confidential both

under New York law and federal and state Privacy Acts.

But for these purposes, concentrating on the


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Proceedings

1,100 plus documents that are currently in front of the

court, it seems that without undue prejudice to the

public's right of access to this information we can

simply redact off the loan numbers as we have in the

briefs that have been submitted to the court without

them.

THE COURT: How do you identify -- the

reason why I came up with this one, with the last four

numbers is, how do you identify that loan versus

another loan?

MS. CONCANNON: Well, we could, your Honor,

for the briefs and also the 19-a statements submitted

to the court use the methodology that you proposed with

regard to those documents, and those are the loans that

are really being discussed and relied upon in

connection with summary judgment.

My concern is with regard to these voluminous

exhibits where no party has referenced lines 1 through

1,000, but that's what is in the exhibit. If that

particular loan is not being discussed it would be far

more administratively possible to expedite the

publication of these documents to the public if we can

simply redact out that information.

THE COURT: All right.

Is there any problem with that?

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Proceedings

MS. SHETH: Yes, your Honor. We have a

strong objection to the redaction of the loan ID

numbers. I don't believe that Countrywide has made any

showing that you can use a loan identification number

to identify a specific borrower.

THE COURT: I can't take that chance. As

the court I have to be the protector, the third-party

borrower. I mean, that's my job. I don't know. It's

as simple as that. I don't know. When I thought about

it when we were discussing it yesterday in chambers I

said to myself, yeah, I don't know. That's where it

is.

But what about trying to do, the number of

the securitization and the last four digits seemed to

me to identify the loan in terms of talking about -- we

are not going get in securitization number 2-654. In

other words, we are going to be able to identify what

we are talking about, and yet at the same time secure

the privacy of the borrower. So the idea that we are

going to have it out there, I don't know.

With my little bit of knowledge of what

computer mavens can do, which is one person I am not,

it's not a question of what I can do, but there are

people out there who can transform that information and

maybe get the name. I am not saying that anybody


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sitting at this table could do it, but somebody in

their organization might be able to do it. That's the

point. The point is, I can't allow that to happen.

MS. SHETH: Our concern, your Honor, is that

there are so many loan identification numbers, these

are long numbers, and there could be a chance of

miscommunication about which specific loan we are

talking about.

THE COURT:

MS. SHETH:

THE COURT:

I don't think so.

We have

I don't think so because I

think, yes, there is going to have to be a private

document with the original loan number and now the

transformed loan document. That will have to be one

document that, frankly, will not be revealed to the

public at any time ever because it really is of no

consequence to public knowledge, but which will allow

all of us to be sure that there is not a duplication.

That's the reason why I came up with the idea.

Yes, you may have numbers that do duplicate

because there are so many of them and there are so many

loans we are talking about. So if you have the same

numbers with an A, with a B, with a C, and if there is

two of the same, then AA, AAA, AAAA, you know, et

cetera. I mean, it can be done.


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MS. SHETH: We will endeavor to do that.

Two things: We did some additional

investigation based on Countrywide's assertions in

their papers, and we actually found a free writing

prospectus for one of the deals which is available on

the SEC website on the EDGAR database. That free

writing prospectus for the deal actually lists the loan

numbers. We have serious concerns about the argument

that one can use loan numbers which are publicly

available, are on the mortgage loan schedules, to

identify borrowers.

THE COURT: Ms. Sheth, I don't care, I don't

care if they put the loan number with the name next to

it. Now it's my job. It's a whole different

perspective.

My job is to ensure that the public has a

right to know what's going on, and, therefore, has a

right to have access to the documents. On the other

hand, it is my job to ensure that the name of that

person that took out that particular loan is private,

and that at no time in the future there is a knock on

somebody's door saying, I understand you took out a

loan, and what did you think about it? No, that will

not happen on my watch. That's my job.

MS. SHETH: Understood, your Honor.


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Proceedings

THE COURT: The fact that it's out there, I

can't help that. That's not under my control. What I

can do is make sure it does not happen when I am doing

it. That's the key.

MS. SHETH:

THE COURT:

MR. ROSEN:

Thank you, your Honor.

So, I think -- yes.

Sorry.

I appreciate your Honor's hard work.

Bloomberg appreciates your Honor's hard work in going

through this.

Just a couple of very brief comments.

One thing, we certainly agree with the

court's position that not enough information has been

given to show compelling need to keep a lot of this

information out of the public access, but I came away

from the last hearing thinking that there would be some

version of Exhibit A that Bloomberg would be able to

look at.

It's impossible for Bloomberg to go to these

documents and look at these various reasons. What we

were basically given was generalized reasons for three

categories. Now your Honor has said give us more

specific reasons for individual documents. We would

like to see those individual reasons. We would like to

see what document it is they are talking about so that


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Proceedings

we can make an argument on a particular document the

that we may be interested in.

That's the first -- I don't know if you want

me to stop there.

THE COURT: We will stop there for the time

being. Ms. Concannon wants to say something on that.

MS. CONCANNON: Thank you, your Honor.

We did reach out to Mr. Rosen. Because of

the nature of the documents which are described in

Exhibit A, Exhibit A itself becomes a document that

contains the substance of the very communications that

we are trying to keep sealed.

We reached out to Mr. Rosen and offered to

provide him unredacted versions of all the parties

submissions in connection with the sealing motions

provided he would represent to us in writing that he

would not provide that information to his client or use

it for any other purpose other than opposing the

sealing motion. Mr. Rosen declined that offer.

THE COURT: All right. That's important to

know.

I didn't get to the last few points that I

will make today. Maybe I should. Then we should

discuss it because now I am faced with a dilemma, as I

have explained already.


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Proceedings

The parties -- in order for me to make a

decision, and I have not made a decision on any one of

the disputed documents because I find that what has

been submitted is just not sufficient. So, of course,

I mean, one way of handling it would be, well, not

sufficient, therefore, I unseal it. But, no, I cannot

do that because there are some really important things

that I think are private to Countrywide, and I can see

that it would do Countrywide and then later on Bank of

America tremendous harm to have that information out in

the public realm.

I think there is a balance there. There

is it's basically, you might say, in the realm of a

trade secret. So I am very -- I have to question that.

So this is what I'm doing. The parties are

going to be allowed to resubmit their sealing motions

with the following point of view: One, the testimony

related to Countrywide's and Bank of America's current

nonpublic financial information, and, two, documents

pertaining to Countrywide's repurchase process.

Countrywide needs to provide good cause, compelling

cause to seal such documents or portions thereof.

Countrywide must also carry out a balancing test for

the reasons of sealing documents against public

interest.


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Proceedings

Now we get into the real issue as to what

Mr. Rosen just brought up which is a very important

issue: How can Mr. Rosen argue against Countrywide's

request that a document be sealed because it is in the

nature of a trade secret if he can't look at it? That

is a real issue.

At the same time, if that document in the end

is sealed, and I give reasons why I believe that

document should be sealed, then that's a decision of

the court which is, by the way, appealable. That's why

we have case law at all because other judges have done

it and it immediately has gone to the Appellate

Division. I don't think anything has ever gone to the

Court of Appeals. That process then happens.

Of course, in order for the Appellate

Division to make a decision on that the original

document has to be produced and what portion of it then

gets sealed? That's what happens when it goes up.

MR. ROSEN: May I?

I really appreciate Countrywide's offer, but

what it does, it puts me in a very precarious position

with my client.

I discussed it with my client. I have had

this situation occur many times in the past, and

basically it gives the attorney much more knowledge


Proceedings

than the client. The client's a news organization.

It's a very uncomfortable position to be in. Basically

you can't get access to this, I know why, and I can't

tell you.

So there is a better way. The way is to

provide us with Exhibit A with a description of what it

is, but not exactly what it is. The reason why we want

to -- this provides an explanation and some detail of

what kind of explanation it is. It does not have to be

the actual explanation itself, but there are other ways

to describe it just as you would describe a redaction

in a privilege log. There are ways to describe it that

do not break the privilege. There are ways to

describe, especially when it comes to these

transcripts, there are ways to describe what is being

discussed that would give us enough information that we

can say that's not enough, their reasons aren't enough.

It may be that they convince us that we just sort of

waive that and move on from there.

MS. CONCANNON: My concern, your Honor, is

that the court obviously wants a great deal more

specificity in Exhibit A than currently exists in that

document. I believe that it would be walking a very

fine line to provide the court with the detailed

grounds, showing of good cause, showing of compelling


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interest to seal without really describing the contents

of the documents with some degree of detail which we

are more than happy to do to satisfy the request of the

court. However, that then is effectively handing over

the documents that we are asking to seal to Mr. Rosen.

We do believe the appropriate course is

essentially an attorney's eyes only approach which is

something frequently done routinely with protective

orders. We have no concern with regard to Mr. Rosen's

discretion. We want to make sure the documents don't

inadvertently become disclosed.

THE COURT: End up in the press. I mean,

there comes a time, if you describe it enough, that you

don't have to get the document, you know, because it's

all out there. That is exactly what Countrywide wants

to stop the press from having because they say it's

akin to a trade secret, the information.

I mean, some of the information, for example,

how much is the worth of the shares of stock, et

cetera, et cetera, that is secret to a time that there

is a shareholder, that there is a disclosure that has

to be made to the SEC, and then it becomes a public

document. So, I mean, yes, it's secret as of

November 15th, 2012, but when it has to be revealed to

the SEC or when you have a shareholders meeting and a


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vote of the amount of distributions will have to be

made, when something happens it changes and morphs into

something public. So then as to that year it becomes a

public document.

There is that consideration.

It seems to me, this is something that I

don't know, but it seems to me that the documents for

2006 and 2007 may be something that is not something at

this moment that is sealable because of the date

involved. And if you request that it remain sealed,

then there will be an additional there will have to

be an additional explanation why in 2012 that document

pertaining to 2007 has any impact on 2012. I mean,

those are the things that you will have to provide

writings on.

I know that you're trying to seal current

financial information, but, nevertheless, again, it has

that kind of like a morphing outwards, and I don't know

when the morph comes. For example, if you tell me that

morph has to come on April 15, that's one date. Or

does the morph happen on January 15? There are a lot

of corporate disclosures that have to be made. I don't

know. That's something that I would want to know

because I think that makes a very distinct difference.

If it will happen on December 15, you know, that


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changes that entire quality and character of that

request.

Since I have not the vaguest idea of what I

am talking about you will have to let me know on that.

That's one of the things I will be very interested in.

It will be part of my decision-making process.

The only other thing I can say, Mr. Rosen, is

that they made a very good offer to you. If you feel

uncomfortable with that, you will have to rely on the

court. Then if you say later on -- I will put in my

decision that this offer has been made -- it's on the

record, also -- an offer was made, it was declined.

So, therefore, the fact that you can't comment, you

can't give me your views on the documents that I will

have to make decisions on, that's up to you to make

that decision.

MR. ROSEN: Your Honor, I appreciate the

court's position. I feel that based on the case law

and the burden that it's their burden to provide a

public presentation of what it is that they are trying

to seal, and the compelling reasons that they need to

seal it is their burden to do so, not my burden to know

something that my client doesn't know and for me to

essentially say I can't tell you why, but we are going

to lose this or I can't tell you why we shouldn't


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approach this aggressively.

mechanism.

It's really an intrusive

THE COURT: I understand. So, therefore,

you have to rely on the court just as everybody out

there in the public in a privilege log has to depend on

the court. That's what the court -- that's what you do

in a privilege log, you have to put in certain

information, and the court has to then -- I usually

send it to a referee. A referee usually says

privileged, not privileged, the first three words are

privileged --

MR. ROSEN: I understand.

THE COURT: -- the next six words are not.

The person I send it to, Justice Bradley, that's how he

comes up with it. Amazing. That's his decision.

MR. ROSEN: I understand that.

Even with a privilege log there is enough

information where you can tell who sent it and what the

general topic is and I don't have that now. What I

have are three basic categories of information and a

general reason that your Honor has dismissed. already

dismissed.

I think there is a burden on the movant to

provide more information to the public so that we can

make the argument. I understand they can't tell me


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what the actual document is. And if my client declines

to allow me to see attorney's eyes only, so be it,

however, I believe there is another step that can be

taken, a more detailed step that can be taken.

THE COURT: I think I already ordered that.

At this stage we are premature in worrying

about it. We don't know what they will come up with.

We do know they will have to come up with much more

detailed information to have me find a compelling

reason.

You may take Mr. Rosen's idea that maybe you

do want to say it's this topic, it's that topic, what

kind of et cetera. You will have to develop that.

That's something that's not been done so far.

So at the stage we are, at this moment, I

would say everything could be unsealed. However, I am

giving another opportunity for you to work on it to

give me good reasons why X should be sealed. And I

think when you go through the exercise a good deal of

it will fall into the unsealing portion of it because I

think now that we looked over a lot of things, I think

that that high degree that has to be met, I am not

saying it does not get met, but I am saying it's a very

high level, and, you know, you will have to weigh it

whether you will even get there.


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That's something you have to -- I can't tell

you how to do it, but I do think it will have to be a

lot more detail. And you may think about that

privilege log and how we get around doing it. I mean,

usually what happens in a privilege log is that, of

course, it's always in a string, you know, 35 e-mails

of which e-mail number 15 involved the lawyer or

conveniently involved the lawyer. And the rest of it,

naturally the whole string should be -- that does not

happen. So we get down to 15, the 15th e-mail out of

the string of 35, and then that is looked over, which I

will have to do to make a decision on the sealing

issue. It's looked over by usually I send it to the

referee. The referee looks at it, a special master,

and says that out of this e-mail, all right, line six

is privileged, that one line is privileged, and the

rest is unprivileged. That's more often than not. It

amazes me. Talk about detail work.

Anyway, to go into how to do this: The

parties are going to provide the court with one hard

copy so I don't spend the whole afternoon trying to

decipher something, a complete set of motion papers

including copies of all exhibits that the parties seek

to seal. Don't give me document number. I am

interested in actually seeing the document. We spent a


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good deal of time going through trying to find

documents so I could get a sampling of it. Give me the

document you want me to consider in the unsealed

version. Then you will have to give me the document,

how you want it sealed. You will have to do two

versions of the same document.

No placeholders, no references to affidavits

submitted on other motions.

Again, I want it clear. I want me to have in

front of me what I am considering in the sealing,

whether it will be sealed or not. Of course, I want

your argument, I want your argument why it should be

sealed, and good reasons, and then I want the

documents, proposed sealing, or proposed sealing and

original document.

Now also do that in two other copies, but

they can be on disk. That's for my younger crew. They

love disks and I like to see things. That's what

happens when you grow old. I used to be the only

person using a computer in the entire City of New York.

I had my own computer, and I used it. Now I know

nothing, it's true, about computers.

Back to Bank of America's sealing motion: I

know Bank of America is here. Given the guidelines

provided by the court today, and the detailed analysis


Proceedings

the court expects to see on the sealing motions, the

party should consider whether they need additional time

to complete the briefing on Bank of America's sealing

motion.

MR. CANTOR: I think we can answer on that

right now.

THE COURT: I know you can, but we will have

to discuss it. We will get to it. Then the same issue

on the summary judgment motion.

Let's understand each other: You can't get

to the summary judgment motion unless the summary

judgment motion is submitted in full. It can't be

considered by the court if it's not a full document.

So that, for example, you're relying on the testimony

of a witness, and that testimony of a witness is going

to be sealed as to three pages, and the rest of it will

be used, but of course, these three pages are the key

three pages that you want to quote.

That's the purpose of this entire testimony

and the deposition that lasted 160 pages. The three

pages that you really want to rely on, agreed, all

sides, all three people agree those are the three pages

you want to rely on, those are the ones you want

sealed.

I have to -- I have to decide the sealing


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issue before I can consider it in my summary judgment

motion. That has to be done. That's a preliminary

step because I frankly do not want placeholders in my

summary judgment motion. I want it to be either

redacted copies as we talked about redacting the

copies, or I want something that I decided should be

sealed. I want a summary judgment motion that in a

sense is a public document to the extent that we can

make it public. Otherwise, we are doing a half-baked

thing. Oh, yeah, you have very good arguments, but we

can't talk about those. We can't do that.

The summary judgment motions that I have

before me now, and I have also I rely on documents

that really, that can't be public at this moment. I

think that after what we discussed today, in the end

there's going to be, I think, a relatively few number

of documents that I will have to consider. Most of it

has been resolved. I mean, most of it, I think at the

end of the period of time necessary to clean up the

documents, can be released to the general public, and

if they are interested they can read them. That's a

different issue, but they will be, they will be

available. Then they can be referred to in the summary

judgment motion because they will be available as

redacted.


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As I redacted them, I had no problem.

ask you, Mr. Rosen, would you have a problem as I

redacted them?

I will

MR. ROSEN:

THE COURT:

statements today.

If your Honor redacted them?

As I redacted them in my

MR. ROSEN: Generally I believe Bloomberg

agrees with just about everything your Honor said.

THE COURT: Okay. So we can use them.

That's the important thing. Then we get into the

thorny issues. Those are the ones that we will have to

deal with.

I don't think we can do the summary judgment

motions until we have decided. And I have to give you

time to do the work. Now, the bottom line is, I can't

see how we are doing our summary judgment motions in

the month of December. I just don't see it. I mean,

look, I'm not working Thanksgiving. I am telling you

that right now. So, I mean, you may want me to --

MS. SHETH: No, we don't, your Honor.

We think we can accomplish I think your

Honor has given us very specific advice as to what

types of information should be sealed and what types of

information should be redacted. And for the most part

the vast majority of the papers the pleadings, as well


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as the exhibits, can now be filed with the court system

open without placeholders, with very few redactions.

So I think the parties can endeavor to get all of this

done before the next hearing date on the Bank of

America's sealing motion which is on November 29th.

That gives the parties a week and a half, almost two

weeks to get all of this done for your Honor so we can

still have the hearing for the summary judgment motions

on December 5th and 6th. I know the court set aside

that time for a long time. This hearing keeps getting

pushed back for a variety of reasons, but the parties

are ready. The court has set aside that time for the

parties and we are ready to proceed.

To the extent there are any remaining issues

and disputes pertaining to the complex categories

relating to repurchase documents or Countrywide's

nonpublic financial documents, we obviously will try to

present them to your Honor well in advance of the

summary judgment hearing, but certainly in advance of

November 29, the next hearing date on the Bank of

America sealing motions.

And we would submit that in order to decide

the summary judgment motions the court can decide them

on the basis of sealed information to the extent where

we don't reach a resolution or the court is unable to


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decide this issue, but we can limit the presentation of

the public evidence at that time in the hearing and

deal with the more thornier issues after the hearing.

That's always an option, as well, for those limited

subset of documents.

THE COURT: One second, please.


MR. ROSEN: I appreciate MBIA's need to have

expediency here, but I believe your Honor set out the

law correctly, set out a procedure correctly, and that

these decisions -- the public should have the ability

to look at everything that is going to be public before

there is an argument. If the parties would like to do

this on an expeditious basis, Bloomberg is willing to

do whatever it needs to do within that so that these

arguments can be held the first week of December. But

I believe your Honor was absolutely correct that we

don't just put this off and that the public needs to

have access before a hearing is held.

THE COURT: Like everything else, we are

dealing with something we don't know. I don't know how

many documents are going to in the end boil down to

the, boil down to the documents I will have to make a

decision on. Frankly, if I have to make decisions on,

and I have 300 documents, that's one kind of work that


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needs to be finished. If, on the other hand, I am down

to 20 documents, that's another portion of work.

That's something that might -- then there are other

issues. I mean, that is something else. So if I have

20 documents, I have to deal with, yes, maybe I can

handle that within a very short period of time. Three

hundred is a different story because each one of them,

in my book, requires my analysis as to why I'm going to

agree with you or not agree with you. So that depends.

MR. HOLLAND: Your Honor, to echo what you

said, we appreciate all the work you put into this. I

think it shows how much time it consumes for the court.

I don't know if we can meet very expedited

deadlines. I think trying to get this done, and also

have you be ready for the summary judgment motion by

December 5th and 6th is imposing a tremendous burden on

the court because you will be spending all your time

sorting out sealing issues instead of focusing on

what's in the motion.

I know the court had its schedule disrupted

because of the hurricane. Of course, we will do

whatever the court wants, but I think it might be too

ambitious to keep the current dates for arguing the

summary judgment motion. Maybe we can keep those dates

for finally sorting out the sealing issues. If the


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court wants to hear us in December, that's fine, or

January, that's fine.

THE COURT: Like everything else, the court

is a big believer of if you don't have to make a

decision sooner, don't do it. Let's try to make a huge

effort. I don't know, with all the other things I have

said, there is a lot of work that needs to be done, but

I think it's a lot of mechanical work. I don't see

that it requires -- I see somebody having to do a lot

of work, I am not saying all of you have to do the

work. Maybe you do.

MR. HOLLAND: Mr. Freeburg.

THE COURT: That's what I mean. I just

don't know what the parameters of the problem will be.

Until I know that I can't make a decision, and I can't

really, I really don't know.

Therefore, let's keep our dates where we are

now. Let's keep our dates where we are now. Let's see

how it goes. Try to tell me how it's going on an

updated basis through communication. Let me know. Let

me know how it's going because in addition to

everything else we have Thanksgiving, and then we are

basically getting closer to that Christmas event.

So, I mean, there is a lot of work that needs

to be done. Let's get going on it. I won't take you


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Proceedings

up this afternoon. You have plenty of time this

afternoon to go back to work. Let's see where we go.

I am not a computer expert so I don't know

whether if I say this it's a question of putting a code

in and all of Column A disappears, that's all the

names, or all of Column B disappears.

If you say to me, Miss Concannon says to me

we can't transform the loan documents to one at this

time, however we will do this for the loan documents

that we will use in the summary judgment motions, I am

willing to buy that, that's fine. Later on we will get

into the more technical. The one thing I am worried

about if you do that is if you do, if it is loan

sequence number 422 of securitization three that you

want to transform, then when you get to loan 3-422,

that loan number, you have to make sure it corresponds

to what it has been changed into. But that's not my

headache, it's yours. It's the kind of thing you have

to be conscious about.

MR. HOLLAND: We just don't know. While I

too once was considered avant-garde with computers, I

too am no longer conversant in the subject. Until we

go back to our computer people, we don't know what we

are doing.

THE COURT: Keep in communication with each


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other. Try to work it out.

Yes.

MR. CANTOR: There is one important

Page 51

difference between the Bank of America aspect of this

and the Countrywide aspect of this. For all the folks

at the table both their summary judgment motions and

their sealing motions are fully submitted. Neither is

the case for us. So we have an existing schedule that

was, frankly, based on a different view of the world in

terms of sealing, and that sealing happened

simultaneously with the preparation of our summary

judgment reply brief which got pushed back because of

the storm.

We are in a situation right now where the

hearing on the sealing motion was supposed to be

November 29. The summary judgment reply briefs are due

on the 27th. Despite everyone's best intentions I have

no doubt that there will be documents in the reply

briefs that were not, not in any of the briefs. We

will have to deal with those.

Right now our motion on, an open brief on the

motion to seal is due tomorrow, tomorrow at 5:00. My

team was in the office until 2:30 in the morning last

night to try to get the chart of documents that the

parties, per your suggestion, had agreed to exchange in


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advance of the hearing done. That chart, it sounds

like it may not be what your Honor is looking for

anymore.

THE COURT: No longer, having looked at the

charts.

MR. CANTOR: Right.

What I am saying is that these folks have

work to do to get you a new set of what it is exactly

you want. We have not even gotten as far as they do,

and we are doing all of this while we are trying to

complete our summary judgment reply briefs by the 27th

with the Thanksgiving holiday in the middle.

I think we need to come up with a new

schedule. I think at a minimum the 29th is going to be

problematic. I think what makes the most sense is to

have the parties submit one set of papers after the

reply briefs are in so we are not doing a

helter-skelter process of opening and opposition briefs

and then supplementing if there is something in the

reply.

If the reply briefs go in on the 27th, we can

get something comprehensive in, for your Honor, that

week. The 27th, I think, is a Tuesday, if I recall

correctly. Yes, we can get something in for you that

week.


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I don't know how long your Honor needs to be

with those materials before you are ready to hear us on

the sealing.

THE COURT: Remember, basically what I did

today is I gave you the outline of what is not going to

be in any document, okay, names, addresses, social

security numbers, et cetera, et cetera. I think I went

over it fairly clearly.

Now when you provide me with a big chart,

which I am sure everyone will want to see, basically

it's all going to be public, the redacted public,

because it's no longer something that we have to

discuss. But then we get into the key documents, the

important documents. Those are the ones that I'm going

to have to consider.

MR. CANTOR: There are other categories of

documents. I know it's going to be in my motion.

There are other categories of documents that are

different from the categories of documents raised by

the Countrywide parties, and we have got arguments as

to why those documents are sensitive to Bank of

America, and why there is little or no public interest

in those documents because they don't relate to any of

the issues on the motions. And we are going to need to

make all of those arguments.


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And while your Honor's rulings today

certainly are constructive on some of what was going to

be the subject of our sealing motion, it does not reach

other parts of it. Again, I think we need to be, you

know, practical, and not have a situation where, you

know, for the sake of getting the sealing motion done

as quickly as possible we are leaving ourselves in the

position where it is both extremely difficult to get

the sealing motion done and to get the summary motion

done, and leave your Honor enough time to have time to

deal with the summary motion.

At this point I will not take a position on

whether your Honor needs to move the summary judgment

hearing or not. I know what a charged issue that is.

I think it in terms of sealing, I think what makes the

most sense is to wait until we get to the end of

summary judgment briefing process and have us submit a

comprehensive motion to seal, have the other side

oppose it, and leave your Honor how much time you need

to deal with it at a hearing.

THE COURT: Yes.

Mr. Rosen.

MR. ROSEN: I actually agree that it would

be good to have the briefing completed after the reply

brief. It makes no sense to do this two-step process.


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THE COURT: That's why, because I wanted it

done, I have not looked at the supplemental things.

But, again, I don't think that I mean, one

of my views is that, guess what, a reply brief, yes,

you're entitled to put in new documents if the

opposition brought up such new concepts that you

couldn't possibly have done it before your main brief,

so, therefore, you are allowed to have an answer to

this, to the opposition, okay. But as to the number of

documents that happened as a result of that, I don't

know. Remember how many times I have written I have

no -- I am not taking that into consideration because

that's brand new material that should not have been

brought up in the reply.

MR. CANTOR: All I am saying is that based

on the fact that there was supplemental briefing on

Countrywide's motion to seal as a result of documents

in the Countrywide and MBIA v. Countrywide reply

briefs, I can anticipate the same issue will happen in

Bank of America, and we are going to be in a situation

where right now on that schedule we have a day to deal

with those documents.

MR. HOLLAND: Your Honor, we didn't put any

additional documents in our reply.

MR. CANTOR: I believe MBIA did.


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MS. SHETH: I think Bank of America is

creating a mountain out of a molehill here.

I know our client MBIA wants to be directly

heard on the issue of timing.

What your Honor has done is helped the

parties by reducing the amount of disagreements. So,

if anything, this process is going to be made easier,

not harder.

Second, your Honor has said there is nothing

new here. Your Honor repeated what the First

Department, Court of Appeals -- it's well-established

and longstanding case law on the standard for sealing.

It's a high standard. It's good cause. There is

nothing new that Bank of America or Countrywide, for

that matter, could not have done on the initial motions

to seal. In fact, your Honor is giving them a second

bite of the apple to establish that very high showing.

In light of that fact we respectfully would

say there is no reason for further delaying the

resolution of this case. This has been pending -- we

have been appearing before your Honor since 2008, the

fall of 2008. And we are very anxious to get this case

resolved. We are being prejudiced by this continual

pattern of delay by defendants.

But let me defer to my client, Jonathan


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Harris.

MR. HARRIS: Good morning, your Honor.

Just to follow up on something that Mr. Rosen

said, something that your Honor said, these are

arguments

THE COURT: Speak up.

MR. HARRIS: -- these are arguments that

should have been made prior to today. We have delayed

the summary judgment hearing several times now. And as

Ms. Sheth noted, this is an important matter for MBIA.

What we have seen throughout this case is precisely

what we are seeing now. We are seeing Bank of America,

Countrywide, coming to this court with one reason or

another why matters have to be delayed.

Your Honor was very clear at the last hearing

that the dates we set for these hearings, December 5th

and 6th, and the 12th and 13th, were etched in stone.

There is no reason why the charts that were

presented couldn't have been better, couldn't have been

more detailed, couldn't have met the standard that the

law requires.

As Mr. Rosen points out it's their burden.

If they failed to meet it, that's their problem,

frankly. And if your Honor wants to give them some

leeway to fix that problem, that's fine, too, but it


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really shouldn't come to the detriment of MBIA.

For example, if they want to take a couple of

days to get their chart better, have it done before the

Thanksgiving break, I think that would give Mr. Rosen

time to respond to it, and your Honor time to consider

it before the hearing on the 29th. But allowing them

to take time, talk it through, work it out, I can just

see where it's going. We will get, you know, weeks and

weeks delay.

Frankly, the time for that has passed, as far

as MBIA is concerned. I say that with all respect to

your Honor who, I agree, needs time to consider

everything that is going to be put before her.

But we have seen a pattern of delay.

Sanctions have not been imposed, and that's your

Honor's prerogative. But this is the time for you to

tell Bank of America and Countrywide to meet the

standards that you have imposed, and not to come back

with requests for more time that will prejudice MBIA

significantly.

MR. CANTOR: Your Honor, if I could,

briefly, on that, because the description of what's

going on here, I think, is entirely inaccurate: We

were prepared to and are prepared to defend our sealing

calls based on affidavits and briefing and


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document-by-document review of those documents. What

was never the order of this court, and I think what is

resulting in your Honor telling the parties to go back

and change their chart, is the idea that the chart

would be the end all and be all of this sealing

analysis here. That was never the understanding of the

parties. The chart was to assist your Honor in walking

through the documents at the hearing. It was never

anyone's understanding, and I defy anyone to find it in

the record from that October hearing that we had where

your Honor said that all of the detailed reasons why a

document should be sealed must be set forth in the

chart. Remember, we were supposed to give a reason.

We said the problem --

THE COURT: Look, Mr. Cantor, I don't think

if you went over what I said before, that -- which you

would be glad to know Mr. Rosen quoted in his papers

what I said before is that you have a very high

standard. Now we are faced with, I think, complex

issues in terms of the repurchasing, et cetera, et

cetera.

I tried to analyze it to give you a little

bit better view. You're saying to me in response, oh,

we have additionally complex issues that you will have

to deal with. I can understand that. But those


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additional complex issues you have known about, and you

have been prepared about, and, you know, the time has

come to let me know about it too. And the 29th is a

good day to think about it, the day we set aside for

you. Now that means you have to provide me with the

information before then, and I will have to spend time

and analyze it the way I analyzed this, and I have to

see where we go with it. But right now I am not

inclined to change dates.

I realize, I am very, very much aware that, I

am very much aware that, indeed, holidays are coming up

and people have the right to be with their family on

that day, and if you're the designated cooker you have

the right to cook the turkey. That happens. There are

human lives involved here. So I really do want that

adhered to. But at the same time right now I don't see

a reason to unilaterally delay anything. I am giving

everybody a heads up. It's something I have to

consider.

I do not want -- I will not deal with doing

summary judgments motions that are half-baked. I may

come to the conclusion in a sense they are

half-backed, that they have, they have placeholders

instead of documents there. I will consider a slight

compromise which would be a document goes in, but the


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redaction portion of it is larger, it will be part of

my final decision. I may have to do that.

know yet. I have not made up my mind.

I don't

But I really want a real effort so that you

can come and Ms. Concannon can say to me they are now,

in the Countrywide portion of life, there are now six

documents left for to you consider, Judge. Then I can

make a decision about whether I can do those six

documents in a quick enough time to be able to make

those documents public before summary judgment motion

argument, or maybe those six documents also have to be,

remain sealed until I have a chance to do them, and I

may do them concurrently with my summary judgment

decision. That's where I stand. I just don't know.

Right now keep working, okay, Mr. Cantor.

Keep working.

MR. CANTOR: All I'm saying -- I was not

suggesting there is a lower burden -- I was saying we

were prepared to show that burden in a way that sounds

like it's different than your Honor wants it, from a

pure presentation standpoint, that your Honor wants it

all in the chart as opposed to in briefs, and

affidavits, and in oral argument, and that's all I'm

saying is different than what we understood before.

The standard is the standard.


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THE COURT: Maybe you didn't hear me. I

said there was a new form, okay, there is a new section

that I am giving everybody an opportunity to do. I

want the document there. I want the proposed redaction

next to it. Do it in a form that, you know -- you know

how to do it, red line, et cetera, et cetera. Even I

know how to do that. That I know a computer can do.

It's doable.

MS. SHETH: To be clear, your Honor, Bank of

America's summary judgment reply papers are still due

on the existing schedule; is that right?

MR. CANTOR: I never intended to suggest

otherwise. I'm talking about -- the one thing I'm

talking about, your Honor, most urgently is the

submission of a chart with our motion. We are prepared

to file our motion tomorrow, file our brief tomorrow,

file our affidavits tomorrow. I think providing the

chart in the nature of what you're talking about

although, again, now if you are talking now about

documents and a description of the documents

THE COURT:

was Ms. Sheth's idea.

The chart was a grand idea. It

I think you're the first person

that talked to me about a chart. I thought that would

work perfectly. As it turned out, I spent now a period

of time on it. It has not worked out. It requires --


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it did provide me the sufficient information to come up

with a whole series of decisions today which is what I

put on the record today, which I may not have been able

to do it had I not had the chart. We will put it that

way. It was a useful event. However, we are in a

different category.

When you get the record, if you have a chance

to go over it, you will see my categories are different

now. I want much more specificity that are not

contained in the chart. You can do it in a chart, but

you don't have to do it in a chart. We are not into

charts as much as we are compelling reasons.

MS. SHETH: We asked Bank of America's

counsel for those reasons during these negotiations

about the chart. And initially they refused to provide

us with any reason. This is an issue that they have

been on notice of. We actually compared it to a

privilege log so we would have a basis to assess

whether or not the documentation was sealed.

They have done the analysis. So there is

nothing additional that needs to be done here that

would warrant a delay of even the chart.

MR. CANTOR: What we argued with them about

was whether we were required to give them our reasons

two days before we were filing the motion with the


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court for them to review. That's what the dispute was

about. It wasn't over whether we would provide reasons

for sealing. We know we have to provide reasons for

sealing.

The issue now, your Honor, is just whether in

order to be able to give you the side-by-side documents

and all of that we can have more time than tomorrow at

five.

MS. SHETH: Your Honor, we don't have an

objection if they want more time until tomorrow. All

we are saying is that the chart must be done before the

22nd, which I think is Thanksgiving, and so that will

give the court and the parties enough time to get this

before your Honor, before the 29th.

THE COURT: Today is the 15th. It remains

the 15th all day. I suggest that you spend a wonderful

weekend. All right. That's my suggestion. So that we

will give you to the 20th.

MR. CANTOR: Okay.

THE COURT: Not at 5:00 on the 20th. Let's

make it noon on the 20th.

All right.

MR. ROSEN:

THE COURT:

MR. ROSEN:

This is for the sealing motion?

Yes, sealing.

When would our response be due?


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THE COURT:

MR. ROSEN:

beforehand?

THE COURT:

I said noon to give you

MR. HARRIS:

THE COURT:

cooker, maybe you have

They are coming in on the 29th.

You don't want to see anything

No, no, I do. Again, that's why

the afternoon.

Okay.

Again, if you are not the

the 21st. Then the 26th, 27th.

I would like to get papers in, I do want papers in for

me to consider no later than really the 26th. If you

say to me 10:00 on the 27th, I will buy that. I need

time for myself. I do need time.

MS. SHETH: MBIA can have its opposition to

Bank of America's papers by the 23rd which is that

Friday. If we can get Monday, that's better.

THE COURT: Yes. There's Thanksgiving. I

will give you the 26th.

I assume Countrywide will not be opposed.

MR. HOLLAND: No, your Honor. We will make

our best efforts to get our supplemental submissions to

you by then, as well.

MR. CANTOR: Your Honor, at the risk of

looking stupid, which happens not infrequently, I want

to make sure I understand specifically what you want us

to submit to you.


Proceedings

You still want a chart; correct or no?

THE COURT: Look, you have a chart. That

chart basically --Ms. Sheth's chart, we have

Countrywide's chart. If you have additional documents

that are not contained in these charts then you have to

have some sort of mechanism of identification, and if

you have just, let's say, Bank of America Exhibit 32

made up, and that you're redacting all names and

everything else, and it's to go public, you have no

problems with it, all right, that's a conclusion. Most

of these documents, Ms. Concannon is right, most of the

documents here have already gone public. They are

already in the system, right?

So we are talking out of the thousand, 630

were all public, and then an additional 400, whatever

number, 600 and 400 are not public at this moment.

Now that I've given reasons we should be down

to important documents, maybe 20. Maybe there are 15.

The lesser the better. Those are the ones that we are

going to be having arguments on whether or not they

should be sealed or not sealed.

MS. CONCANNON: That's true on the

Countrywide side. Your Honor, there are different

sets, I believe, of approximately 1,000 documents on

the Bank of America side.


Proceedings

MR. CANTOR: A thousand exhibits, not a

thousand documents. But as I said, there are going to

be additional documents on, additional categories,

descriptive categories of documents on our motion that

has not been raised yet that your Honor will be hearing '

the first time when you get our papers on the 20th. I

raise that issue. You wanted redacted and unredacted

copies of the each of the documents at issue, as well

as the chart with the description on it, and obviously

briefing and affidavits, as well, I assume?

THE COURT: Right.

MR. CANTOR: Right.

MS. SHETH: To be clear, the November 20th

deadline, that applies to any party, including MBIA and

Countrywide, who wants to make a supplemental or

further motion to seal?

And the oppositions would be due the 26th?

THE COURT: I'm not sure about that.

Are you capable of doing that?

MR. HOLLAND: I thought we were talking

about make our supplemental submission by the 26th.

MS. SHETH: That gives us very little time

to reply to that opposition.

supplemental motion --

If they make another

THE COURT: Look, look, I will give you to


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the 26th for the redact-able documents so we know what

we are doing. That's mechanical. That takes a lot of

time. We do have an awful lot of that.

I really do want on the 20th the ones that

will be the issues, the --

MS. SHETH: The complex ones, the

repurchase, the nonfinancial, those categories.

THE COURT: The important documents.

MS. CONCANNON: Your Honor, if we take the

court's instructions today as an order with regard to

witness information, essentially take those documents

off the table, we are talking about a relatively

discrete number of documents falling into these

categories of repurchase loan, loss reserves, current

financial information.

We would be intending to submit a supplement

to the court that solely concerns that relatively

discrete universe. I would request respectfully until

after the Thanksgiving holiday. Simply, among other

things, I'm leaving immediately after this hearing for

a memorial service that's taking me through the

weekend. I personally will not be available. That

would enable Mr. Freeburg, who has been working around

the clock for about the last three weeks on these

issues, to have a little bit of a Thanksgiving break.


Proceedings

MS. SHETH: Your Honor, this is the second

bite at the apple. I think your Honor indulged them

enough.

THE COURT: Enough already. Give them a

break. I can't help that Thanksgiving comes in the

middle. Maybe you should change the holiday. That way

we will have more time.

MS. SHETH:

THE COURT:

We need time to respond to that.

I understand, but guess what? I

think that you, knowing the documents itself, it's not

as though you don't know the documents. You do. You

know what the documents are. You do. You can begin

the answer right now. You don't have to -- you can

tweak it when you get their wonderful arguments. But

you already know what they are going to be saying. And

if I were you I would start putting the response

together.

MS. SHETH: We will, but I am saying the

same argument applies to them. It's their documents

right now they are saying they need to be sealed.

THE COURT: They will have to make a

compelling reason, and that's going to be very hard on

them.

By the way, on the -- I shouldn't say

anything.


Proceedings

Let's see. So you will have the documents

in, the new batch of documents, the ones that we are

really caring about, on the 26th. Did I say noon on

the 26th? Noon on the 26th.

I don't know how you will do it, but you

probably can give me an answer. We will have argument

on it. We will see where we go.

MS. SHETH: Would you like our opposition on

the 27th or the 28th? We are happy --

at noon

THE COURT: I will give you to the 28th, but

MS. SHETH:

THE COURT:

All right. Very well.

-- so I can see it.

By the way, we don't have to have oral

argument on this. This portion will be basically on

papers.

MR. ROSEN:

THE COURT:

For the continuation of this?

Of the Countrywide issue. The

29th is devoted to Bank of America, an additional

thousand documents, and many more wonderful salient

arguments.

Now that Mr. Cantor knows what I want, he can

tell me the compelling reasons in a much more, in a

manner where they'll be bowled over.

MR. ROSEN: Your Honor, I would like to make


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it clear that while no one has to -- if they don't want '

to give us access to the chart, that's fine, but there

needs to be a public expression of the compelling

reasons in whatever documents, whether the briefs or

otherwise, enough explanation of why they, what is in

there that requires this compelling reason.

THE COURT: Absolutely true. Absolutely

true. Of course you have to have a decision of this

court telling you that I agree with the compelling

reasons or not agree with the compelling reasons. So

there has to be a written decision on the court's part.

In terms of Countrywide, I don't think I need

to have -- I invite you to come on the 29th, but I

don't think I need, I don't need to have oral argument

on that. We will concentrate on Bank of America on the

29th.

MS. SHETH: The parties will be here anyway.

If your Honor has any questions, we are happy to answer

them.

THE COURT: That's true, but I will not make

decisions on the record on those because they have to

have a writing. No writing, no decision.

MR. ROSEN: Thank you, Judge.

THE COURT: Otherwise, how could you appeal

it, which is something to think about because that puts


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a different issue on everything too. But I will not

worry about that. First you have to have a decision to

decide if you will appeal or not.

So with that, that's where that stands.

Okay.

MR. HOLLAND: Thank you very much, Judge.

Have a good Thanksgiving.

THE COURT: Happy Thanksgiving. I won't see

you until the 29th, I don't think.

Apparently there is something we left undone.

Yes, Ms. Sheth.

MS. SHETH: Sorry.

Very quickly, MBIA's motion, sequence number

64, just to cover briefly, I think out of the five

categories of the information that we moved to seal,

four of which are unopposed by both Bloomberg and

Countrywide, MBIA, there is one category, due diligence

employees, the names of the due diligence employees who

we will now withdraw our motion to seal as to those

individuals given your Honor's statements.

And the fifth category was the banking

information relating to the account numbers which your

Honor covered in the context of Countrywide's motion.

Generally I want to make sure that also gets sealed for

MBIA's purposes.


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MS. CONCANNON: We have no objection, your

Honor.

THE COURT: So, let's see now. Let me go

over it so I have it because what I will have to do, I

will have to give you a writing on what I said

basically on the record. But we are getting and

expedited copy of the record. I will give you

basically what we already have written, but I will

maybe amplify a little bit the standard based on the

case law that, again, I referred to. I referred to one

of the cases, but I probably will do a little more on

that, and give you the outline basically exactly what I

said on the record.

But to go back over 64, what am I to do on

64? Four categories are agreed to.

MS. SHETH: Yes. Those four categories are

the personal information concerning the witness which

would include date of birth and social security number,

category two are documents produced in response to

third-party subpoenas issued to borrowers, employers

and accountants, the third category is names and

addresses as well as social security and date of birth

of third-party borrowers which was covered on the

Countrywide motion, and the fourth category is banking

information, bank account information relating to


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specific transactions. So those are the four that are

unopposed by both Countrywide and Bloomberg. And the

last category was names of due diligence employees

which we had initially moved to seal, but in light of

your Honor's guidance this morning we will withdraw

that portion of the motion.

THE COURT: That completes your 64?

MS. SHETH: That's correct, your Honor.

THE COURT: Good. Good. Thank you. Thank

you for clarifying that. I think that was it. I am

glad we had that cleared up.

Happy Thanksgiving, again. Happy holidays.

* * * C E R T I F I C A T E

I, Terry-Ann Volberg, C.S.R., an official court reporter of

the State of New York, do hereby certify that the foregoing

is a true and accurate transcript of my stenographic notes.


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