Community Association for Restoration of the Environment Inc et al v. Snipes Mountain Dairy Inc

Filing 19

STIPULATED PROTECTIVE ORDER. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)

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1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 8 9 10 COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, INC., a Washington non-profit corporation, and 11 12 Plaintiffs, 14 16 17 18 STIPULATED PROTECTIVE ORDER FRIENDS OF TOPPENISH CREEK, a Washington non-profit corporation, 13 15 NO. 1:17-CV-3067-TOR v. SNIPES MOUNTAIN DAIRY, INC., a Washington corporation, Defendant. 1. PURPOSES AND LIMITATIONS 19 20 21 Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection may be 22 23 24 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this 25 26 27 28 29 30 agreement is consistent with FRCP 26(c). It does not automatically confer blanket protection on all disclosures or responses to discovery, the protection it STIPULATED PROTECTIVE ORDER - 1 1 affords from public disclosure and use extends only to the limited information or 2 3 4 items that are entitled to confidential treatment under the applicable legal principles, and it does not presumptively entitle parties to file confidential 5 6 7 information under seal. 2. 8 “Confidential” material shall include the following documents and tangible 9 10 things produced or otherwise exchanged: 11 • Documents pertaining to the purchase and sale of real and personal property formerly belonging to Snipes Mountain Dairy or used in operation of the Dairy. • Financial documents pertaining to Henry Haak, Ev Haak, Snipes Mountain Dairy, Inc. and/or Red Hawk, LLC, including but not limited to tax returns, financial statements and balance sheets. 12 13 14 15 16 17 3. 18 SCOPE The protections conferred by this agreement cover not only confidential 19 20 “CONFIDENTIAL” MATERIAL material (as defined above), but also (1) any information copied or extracted from 21 22 23 confidential material; (2) all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, conversations, or presentations by 24 25 26 parties or their counsel that might reveal confidential material. // 27 28 29 30 // STIPULATED PROTECTIVE ORDER - 2 1 However, the protections conferred by this agreement do not cover 2 3 4 information that is in the public domain or becomes part of the public domain through trial or otherwise. 5 6 7 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that 8 9 10 is disclosed or produced by another party or by a non-party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. 11 12 Confidential material may be disclosed only to the categories of persons and 13 under the conditions described in this agreement. Confidential material must be 14 15 16 stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited to the persons authorized under this agreement. 17 18 19 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the designating party, a 20 21 22 receiving party may disclose any confidential material only to: (a) the receiving party’s counsel of record in this action, as well as 23 24 25 employees of counsel to whom it is reasonably necessary to disclose the information for this litigation; 26 27 28 29 30 STIPULATED PROTECTIVE ORDER - 3 1 (b) the officers, directors, and employees (including in house counsel) 2 3 4 5 6 7 8 9 10 of the receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties agree that a particular document or material produced is for Attorney’s Eyes Only and is so designated; (c) experts and consultants to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 12 (d) the Court, court personnel, and court reporters and their staff; 13 (e) copy or imaging services retained by counsel to assist in the 14 15 16 duplication of confidential material, provided that counsel for the party retaining the copy or imaging service instructs the service not to disclose 17 18 19 any confidential material to third parties and to immediately return all originals and copies of any confidential material; 20 21 22 (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the 23 24 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 26 27 28 29 30 transcribed deposition testimony or exhibits to depositions that reveal STIPULATED PROTECTIVE ORDER - 4 1 confidential material must be separately bound by the court reporter and may 2 not be disclosed to anyone except as permitted under this agreement; 3 4 (g) the author or recipient of a document containing the information 5 or a custodian or other person who otherwise possessed or knew the 6 7 information. 8 4.3 Filing Confidential Material. Before filing confidential material or 9 10 discussing or referencing such material in court filings, the filing party shall 11 12 confer with the designating party to determine whether the designating party will 13 remove the confidential designation, whether the document can be redacted, or 14 15 16 whether a motion to seal or stipulation and proposed order is warranted. 5. DESIGNATING PROTECTED MATERIAL 17 18 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or non-party that designates information or items for protection under 20 21 22 this agreement must take care to limit any such designation to specific material that qualifies under the appropriate standards. The designating party must 23 24 25 designate for protection only those parts of material, documents, items, or oral or written communications that qualify, so that other portions of the material, 26 27 28 29 30 STIPULATED PROTECTIVE ORDER - 5 1 documents, items, or communications for which protection is not warranted are 2 3 4 not swept unjustifiably within the ambit of this agreement. If it comes to a designating party’s attention that information or items that it 5 6 7 designated for protection do not qualify for protection, the designating party must promptly notify all other parties that it is withdrawing the mistaken designation. 8 9 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this agreement (see, e.g., second paragraph of section 5.2(a) below), or as 11 12 otherwise stipulated or ordered, disclosure or discovery material that qualifies for 13 protection under this agreement must be clearly so designated before or when the 14 15 16 material is disclosed or produced. (a) Information in documentary form: (e.g., paper or electronic 17 18 19 documents and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the designating party must affix the 20 21 22 word “CONFIDENTIAL” to each page that contains confidential material. If only a portion or portions of the material on a page qualifies for protection, 23 24 25 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). 26 27 28 29 30 STIPULATED PROTECTIVE ORDER - 6 1 (b) Testimony given in deposition or in other pretrial proceedings: the 2 3 4 parties and any participating non-parties must identify on the record, during the deposition or other pretrial proceeding, all protected testimony, without 5 6 7 prejudice to their right to so designate other testimony after reviewing the transcript. Any party or non-party may, within fifteen days after receiving 8 9 10 the transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or exhibits thereto, as confidential. If a party or 11 12 non-party desires to protect confidential information at trial, the issue should 13 be addressed during the pre-trial conference. 14 15 16 (c) Other tangible items: the producing party must affix in a prominent place on the exterior of the container or containers in which the information 17 18 19 or item is stored the word “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, the producing party, to the 20 21 22 extent practicable, shall identify the protected portion(s). 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 23 24 failure to designate qualified information or items does not, standing alone, waive 25 the designating party’s right to secure protection under this agreement for such 26 27 28 29 30 material. Upon timely correction of a designation, the receiving party must make STIPULATED PROTECTIVE ORDER - 7 1 reasonable efforts to ensure that the material is treated in accordance with the 2 3 4 provisions of this agreement. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6 7 8 9 10 6.1 Timing of Challenges. Any party or non-party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption 11 12 or delay of the litigation, a party does not waive its right to challenge a 13 confidentiality designation by electing not to mount a challenge promptly after 14 15 16 the original designation is disclosed. 6.2 Meet and Confer. The parties must make every attempt to resolve any 17 18 19 dispute regarding confidential designations without court involvement. Any motion regarding confidential designations or for a protective order must include 20 21 22 a certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good faith meet and confer conference with other affected parties in 23 24 25 an effort to resolve the dispute without court action. The certification must list the date, manner, and participants to the conference. A good faith effort to confer 26 27 28 29 30 requires a face-to-face meeting or a telephone conference. STIPULATED PROTECTIVE ORDER - 8 1 7. 2 3 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a party is served with a subpoena or a court order issued in other litigation 4 5 that compels disclosure of any information or items designated in this action as 6 “CONFIDENTIAL,” that party must: 7 (a) promptly notify the designating party in writing and include a copy 8 9 of the subpoena or court order; 10 (b) promptly notify in writing the party who caused the subpoena or 11 12 order to issue in the other litigation that some or all of the material covered 13 by the subpoena or order is subject to this agreement. Such notification shall 14 15 include a copy of this agreement; and 16 (c) cooperate with respect to all reasonable procedures sought to be 17 18 pursued by the designating party whose confidential material may be 19 affected. 20 21 22 23 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a receiving party learns that, by inadvertence or otherwise, it has disclosed 24 25 26 confidential material to any person or in any circumstance not authorized under this agreement, the receiving party must immediately (a) notify in writing the 27 28 29 30 designating party of the unauthorized disclosures, (b) use its best efforts to STIPULATED PROTECTIVE ORDER - 9 1 retrieve all unauthorized copies of the protected material, (c) inform the person 2 3 4 5 6 7 or persons to whom unauthorized disclosures were made of all the terms of this agreement, and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 8 9 9. IN ADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 10 11 12 When a producing party gives notice to receiving parties that certain inadvertently produced material is subject to a claim of privilege or other 13 14 15 16 17 18 19 20 21 22 23 protection, the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review. The parties agree to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 10. NON TERMINATION AND RETURN OF DOCUMENTS Within 60 days after the termination of this action, including all appeals, 24 25 each receiving party must return all confidential material to the producing party, 26 27 28 29 30 STIPULATED PROTECTIVE ORDER 10 1 including all copies, extracts and summaries thereof. Alternatively, the parties 2 3 4 may agree upon appropriate methods of destruction. Notwithstanding this provision, counsel are entitled to retain one archival 5 6 7 copy of all documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition and trial exhibits, expert reports, attorney 8 9 10 work product, and consultant and expert work product, even if such materials contain confidential material. 11 12 The confidentiality obligations imposed by this agreement shall remain in 13 effect until a designating party agrees otherwise in writing or a court orders 14 15 16 otherwise. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD 17 18 Attorneys for Defendant 19 20 21 22 DATED: June 22, 2018 ___/s/_______________________________ KENT NEIL DOLL, JR., WSBA 40549 23 24 25 __/s/________________________________ KIRK A. EHLIS, WSBA 22908 26 27 28 29 30 STIPULATED PROTECTIVE ORDER 11 1 Attorneys for Plaintiffs 2 3 4 5 ___/s/_______________________________ SEANN M. MUMFORD, WSBA 43853 6 7 8 ___/s/______________________________ CHARLES M. TEBBUTT, WSBA 47255 9 10 11 12 ___/s/_______________________________ ANDREA K. RODGERS, WSBA 38683 13 14 15 __/s/_______________________________ TOBY J. MARSHALL, WSBA 32726 16 17 18 19 ___/s/_______________________________ BLYTHE H. CHANDLER, WSBA 43387 20 21 22 23 PURSUANT TO STIPULATION, IT IS SO ORDERED IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the 24 25 26 production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by the 27 28 29 30 STIPULATED PROTECTIVE ORDER 12 1 producing party of any privilege applicable to those documents, including the 2 3 4 attorney-client privilege, attorney work-product protection, or any other privilege or protection recognized by law. 5 6 DATED August 22, 2018. 7 8 9 THOMAS O. RICE 10 Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 STIPULATED PROTECTIVE ORDER 13 1 EXHIBIT A 2 3 4 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, ____________________________________ [print or type full name], of 5 6 7 ____________________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the 8 9 10 Stipulated Protective Order that was issued by the United States District Court for the Eastern District of Washington on _______________ in the case of 11 12 Community Association for Restoration of the Environment, Inc., a Washington 13 non-profit corporation; and Friends of Toppenish Creek, a Washington non- 14 15 16 profit corporation v. Snipes Mountain Dairy, Inc., a Washington corporation; Case No. 17-CV-03067. I agree to comply with and to be bound by all the terms 17 18 19 of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of 20 21 22 contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any 23 24 person or entity except in strict compliance with the provisions of this Order. 25 26 27 28 29 30 STIPULATED PROTECTIVE ORDER 14 1 I further agree to submit to the jurisdiction of the United States District Court 2 3 4 for the Eastern District of Washington for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur 5 6 7 after termination of this action. Date: __________________ 8 9 10 City and State where sworn and signed: ________________________________ Printed name: _______________________________ 11 12 Signature: __________________________________ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 STIPULATED PROTECTIVE ORDER 15

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