FILED: NEW YORK COUNTY CLERK 12/15/2009 INDEX NO /2009 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/11/2009

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1 FILED NEW YORK COUNTY CLERK 12/15/2009 INDEX NO /2009 NYSCEF DOC. NO. 32 RECEIVED NYSCEF 12/11/2009 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK U.S. BANK NAT L ASS N, as Indenture Trustee for the Index No /09 Benefit of the Insurers and Noteholders of GreenPoint Mortgage Funding Trust 2006-HE1, Home Equity Loan Asset-Backed Notes, Series 2006-HE1; SYNCORA GUARANTEE INC., formerly known as XL CAPITAL NOTICE OF MOTION FOR ASSURANCE INC., as Controlling Insurer, Note STAY OF DISCOVERY AND Controlling Party and Class Ax Insurer; and CIFG FOR A PROTECTIVE ORDER ASSURANCE NORTH AMERICA, INC., as Class Ac Insurer, -against- Plaintiffs, GREENPOINT MORTGAGE FUNDING, INC., Defendant. PLEASE TAKE NOTICE that upon the accompanying Memorandum of Law, the annexed Affidavit of Cameron S. Matheson, sworn to December 11, 2009, the exhibits thereto and all the pleadings and proceedings heretofore had herein, defendant, GreenPoint Mortgage Funding, Inc. (the Defendant ), will move the Supreme Court of the State of New York, 60 Center Street, Motion Submission Part Room 130, New York, New York 10007, on the 31 st day of December 2009, at 930 a.m., or as soon thereafter as counsel may be heard, for an order, pursuant to 22 NYCRR (Rules 11(d), 14 and 24 of the Rules of the Commercial Division of the Supreme Court) and Civil Practice Law and Rules 3214(b) and 3103, staying discovery until such time as the issue of the Plaintiffs standing to sue the Defendant has been resolved and issuing a protective order conditioning any future production on compliance with the Discovery Protocol proposed by the Defendant and further directing that such Discovery Protocol be followed in this case. 1

2 Pursuant to the Court s Order of November 12, 2009, the Plaintiffs response in opposition to this Motion shall be filed on or before December 22, 2009 and the Defendant s reply in support of this Motion shall be filed on or before December 29, Dated New York, New York December 11, 2009 LECLAIRRYAN, a Professional Corporation /s/ Michael T. Conway Michael T. Conway 830 Third Avenue, Fifth Floor New York, New York (212) Attorneys for Defendant GreenPoint Mortgage Funding, Inc. To David W. Dykhouse, Esq. Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, New York Constance M. Boland, Esq. Nixon Peabody LLP 437 Madison Avenue New York, NY

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK U.S. BANK NAT L ASS N, as Indenture Trustee for the Index No /09 Benefit of the Insurers and Noteholders of GreenPoint Mortgage Funding Trust 2006-HE1, Home Equity Loan Asset-Backed Notes, Series 2006-HE1; SYNCORA GUARANTEE INC., formerly known as XL CAPITAL AFFIDAVIT OF ASSURANCE INC., as Controlling Insurer, Note CAMERON S. MATHESON Controlling Party and Class Ax Insurer; and CIFG ASSURANCE NORTH AMERICA, INC., as Class Ac Insurer, -against- Plaintiffs, GREENPOINT MORTGAGE FUNDING, INC., Defendant. I, CAMERON S. MATHESON, have been duly sworn, depose and say as follows 1. I submit this Affidavit in support of Defendant s Motion for Stay of Discovery and for a Protective Order. 2. I am a shareholder of the law firm of LeClair Ryan, a Professional Corporation, counsel to defendant GreenPoint Mortgage Funding, Inc. in the above-captioned matter. I have personal knowledge of the matters stated herein. 3. Attached as Exhibit A to this Affidavit is a true and correct copy of the discovery Protocol I submitted to counsel for the plaintiffs for review and consent, as referenced in the accompanying Memorandum of Law. 4. Attached as Exhibit B to this Affidavit is a true and correct copy of the I received from plaintiffs counsel refusing to consent to the aforementioned discovery Protocol, also referenced in the accompanying Memorandum of Law.

4 I solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true. SWORN AND SUBSCRIBED TO before me This 11 th day of December, /s/ Judy H. Creasy Certificate Commonwealth of Virginia at Large (SEAL) Notary Public My Commission Expires September 30, 2010 /s/ Cameron S. Matheson Cameron S. Matheson 2

5 Exhibit A

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee for the Benefit of the Insurers and Noteholders of GreenPoint Mortgage Funding Trust 2006-HE1, Home Equity Loan Asset-Backed Notes, Series 2006-HE1; SYNCORA GUARANTEE INC., formerly known as XL CAPITAL ASSURANCE INC., as Controlling Insurer, Note Controlling Party and Class Ax Insurer; and CIFG ASSURANCE NORTH AMERICA, INC., as Class Ac Insurer, - against - Plaintiffs, GREENPOINT MORTGAGE FUNDING, INC., Defendant x Index No /09 [PROPOSED] ORDER REGARDING PAYMENT OF COSTS ASSOCIATED WITH DOCUMENT PRODUCTION In order to facilitate the production of documents in this matter, as well as to provide the parties with greater ability to predict and control the costs associated with the production of documents, it is hereby ordered as follows 1. Pursuant to CPLR 3120, the party requesting production of documents (the Requesting Party ) shall be responsible for paying the costs associated with the production of those documents as detailed below. A. 2. With respect to the production of , the Requesting Party will specify the custodians (by name, description or category) of the individuals whose is to be searched for responsive documents. The party producing documents (the Producing Party ) will inform the Requesting Party of the volume of in gigabytes retained by the identified custodians. The Requesting Party may then amend its list of requested custodians in order to reduce the

7 volume of at issue. 3. The Producing Party will send the of the selected custodians to a third-party discovery services vendor of the Producing Party s choice to process the for review and production. 4. The processing of the will be done in two phases. In the first phase the s will be indexed and de-duplicated ( First Phase Processing ). The Requesting Party will reimburse the Producing Party for First Phase Processing at a rate of no more than $150 per gigabyte. 5. The Producing Party shall inform the Requesting Party when the First Phase Processing is complete. The Requesting Party may then provide the Producing Party with proposed search terms and date restrictions to apply to the . The Producing Party will inform the Requesting Party of the volume of unique documents (in gigabytes and number of documents) responsive to each search term. Such searches may be done on an iterative basis at no additional cost to the Requesting Party. The Requesting Party will inform the Producing Party of the final selection of the search terms and date ranges that the Producing Party would like applied for the second phase of processing. 6. The second phase of processing includes text and metadata extraction in order to create a searchable database including attachment relationships ( Second Phase Processing ). The Requesting Party will reimburse the Producing Party for Second Phase Processing at a rate of no more than $1,000 per gigabyte. 7. Following the Second Phase Processing, the Producing Party will then review the s for responsiveness and privilege (the Review ). The Requesting Party will reimburse the Producing Party for the cost of having contract attorneys conduct the Review at a rate of no 2

8 more than $66 per reviewer per hour. In the event that the reviewers review documents at a speed of less than 25 documents per hour per reviewer, the Requesting Party will reimburse the Producing Party for the cost of the Review as if the reviewers had reviewed documents at a speed of 25 documents per hour per reviewer. B. Non- Electronic Documents 8. The Producing Party will inform the Requesting Party of the volume of non- electronically stored information ( ESI ) in gigabytes that are potentially responsive to the Requesting Party s document requests. The Requesting Party may then amend its list of requested documents in order to reduce the volume of ESI at issue. 9. The ESI will then go through First Phase Processing. The Requesting Party will reimburse the Producing Party for the cost of the First Phase Processing as detailed above. 10. The Producing Party shall inform the Requesting Party when the Second Phase Processing is complete. The Requesting Party may then provide the Producing Party with proposed search terms and date restrictions to apply to the ESI. The Producing Party will inform the Requesting Party of the volume of unique documents (in gigabytes and number of documents) responsive to each search term. Such searches may be done on an iterative basis at no additional cost to the Requesting Party. The Requesting Party will inform the Producing Party of the final selection of the search terms and date ranges that the Producing Party would like applied for the Second Phase Processing. 11. The ESI will then go through the Second Phase Processing and the Review. The Requesting Party will reimburse the Producing Party for the cost of the Second Phase Processing and the Review as detailed above. 3

9 C. Paper Documents 12. The Producing Party will provide the Requesting Party with an index of the files or boxes of documents that may contain information responsive to the Requesting Party s document requests to the extent that an index exists. The Requesting Party will inform the Producing Party which of those files or boxes the Requesting Party would like searched. 13. The Producing Party will then conduct a Review of those files or boxes. The Requesting Party will reimburse the Producing Party for the cost of the Review as detailed above. D. Payment for Production of Documents 14. The Producing Party will produce and ESI as single page tiff images. The Requesting Party will reimburse the Producing Party at a unit cost of $0.04 per page for each tiff image produced and $0.03 per page for document preparation, bates numbering and endorsement. The Requesting Party will select the media on which it would like the and ESI produced. The Requesting Party will reimburse the Producing Party at a cost of $25 for each CD, $50 for each DVD, and $100 for each hard drive. 15. The Requesting Party will reimburse the Producing Party at a cost of $0.165 per page to copy and bates number paper documents for production. The Requesting Party will also reimburse the Producing Party for the cost of shipping paper documents. 16. The Producing Party shall not be required to provide responsive documents to the Requesting Party until the Producing Party has received payment of all of the reimbursement amounts required by this Order. 4

10 Dated New York, New York January, 2010 SO ORDERED Bernard J. Fried, Justice 5

11 Exhibit B

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13 AFFIRMATION OF SERVICE I, MICHAEL T. CONWAY, an attorney duly admitted to the practice of law in this state, certify the following to be true under the penalties of perjury on December 11, 2009, I served the within NOTICE OF MOTION FOR STAY OF DISCOVERY AND FOR A PROTECTIVE ORDER (including the supporting Affidavit of Cameron S. Matheson with exhibits) on the parties listed below by and by depositing one true copy of said paper to the addresses listed below, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. David W. Dykhouse, Esq. Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, New York Constance M. Boland, Esq. Nixon Peabody LLP 437 Madison Avenue New York, NY Dated New York, New York December 11, 2009 /s/ Michael T. Conway Michael T. Conway