State of Washington et al v. Trump et al

Filing 50

ORDER GRANTING #49 DEFENDANTS' UNOPPOSED MOTION FOR ENTRY OF A PROTECTIVE ORDER. Signed by Chief Judge Stanley A Bastian. (LTR, Case Administrator)

Case 1:20-cv-03127-SAB

ECF No. 50

filed 09/03/20

PageID.327 Page 1 of 10

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Sep 03, 2020

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON, STATE OF
COLORADO, STATE OF CONNECTICUT,
STATE OF ILLINOIS, STATE OF
MARYLAND, STATE OF MICHGAN,
STATE OF MINNESOTA, STATE OF
NEVADA, STATE OF NEW MEXICO,
STATE OF OREGON, STATE OF RHODE
ISLAND, STATE OF VERMONT,
COMMONWEALTH OF VIRGINIA, and
STATE OF WISCONSIN,

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NO. 1:20-CV-03127-SAB
ORDER GRANTING
DEFENDANTS’ UNOPPOSED
MOTION FOR ENTRY OF A
PROTECTIVE ORDER

Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity
as President of the United States of America;
UNITED STATES OF AMERICA; LOUIS
DEJOY, in his official capacity as Postmaster
General; UNITED STATES POSTAL
SERVICE,
Defendants.
Before the Court is Defendants’ Unopposed Motion for Entry of a Protective
Order, ECF No. 49. Pursuant to Federal Rule of Civil Procedure 26(c), Defendants
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request entry of a protective order to permit Defendant United States Postal Service

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to disclose certain confidential information.

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Defendants have determined that some of the information responsive to
Plaintiffs’ Expedited Discovery Requests likely contain confidential commercial
information protected from general release pursuant to 39 U.S.C. § 410(c)(2).

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Defendants also seek a protective order in order to disclose information protected by

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the Trades Secret Act. See 18 U.S.C. § 1905. Good cause exists to grant

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Defendants’ motion.

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Accordingly, it is HEREBY ORDERED:
1. Defendants’ Unopposed Motion for Entry of a Protective Order, ECF No.
49, is GRANTED.
2. The Court enters the following Protective Order:
ORDER

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1.

This Protective Order (“Order”) protects confidential documents and

information that may be produced as part of the Expedited Discovery Response, or as
otherwise required, in the course of the proceedings in this Action and to set forth
mandatory procedures for persons who receive or review documents or information
produced subject to this Order.
2.

Confidential Information. USPS and its counsel are hereby authorized to

release confidential business information that is contained in the Expedited Discovery
Response.
3.

Definitions.
a.

Covered Documents. Those documents in the Expedited
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ORDER GRANTING UNOPPOSED MOTION FOR ENTRY OF A PROTECTIVE ORDER

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Discovery Response, or as otherwise required in the course of proceedings in this

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Action, that USPS or its counsel identifies as containing confidential business

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information by the designation “Confidential” are hereinafter referred to as “Covered
Documents.”
b.

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Covered Information. All information that USPS or its counsel

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identifies as being confidential business information as well as any information

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derived solely from Covered Documents, even if incorporated in another document,

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pleading, or referred to in testimony, is hereinafter referred to as “Covered

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Information.”
4.

Designations of Information as “Confidential”. USPS will designate as

“Confidential” only the material that it determines is confidential business

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information. If only some of the information on a page is confidential, then USPS

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will indicate which part is confidential and protected by this Order. If all the

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information on a page contains confidential business information, then USPS will

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designate the whole page as “confidential.”
5.

Explanation of “Confidential” Designations or Redactions. If Plaintiffs’

counsel, in good faith after reviewing the Expedited Discovery Response, notifies

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USPS which confidentiality designations or redactions are either not self-evident

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from the context of the Expedited Discovery Response or are challenged as not being

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confidential or properly redacted, USPS will promptly provide to Plaintiffs’ counsel

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explanations of the nature of any Redacted Information, and reasons that it believes
that Covered Documents, Covered Information, or Redacted Information require
confidentiality.
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ORDER GRANTING UNOPPOSED MOTION FOR ENTRY OF A PROTECTIVE ORDER

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6.

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Persons to Whom Disclosures May Be Made. Disclosure of Covered

Documents or Covered Information in the Expedited Discovery Response by
Plaintiffs’ counsel is strictly limited to
a. the Court; the Court’s staff; court reporters;
b. the Department of Justice;

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c. Plaintiffs’ counsel, including associated personnel necessary to assist

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Plaintiffs’ counsel in this litigation, such as litigation assistants,

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paralegals, secretarial or other clerical personnel, and litigation

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support services, including outside copying services;
d. 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);

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e. during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the
designating party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal confidential

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material must be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this agreement;

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f. the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the
information.

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7.

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Nondisclosure of Covered Documents and Covered Information.

Plaintiffs’ counsel may use Covered Documents or Covered Information produced
subject to this Order only for the purpose of this litigation (and all appeals thereof).
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Covered Documents and Covered Information To Be Returned.

Plaintiffs’ counsel shall return or destroy any and all Covered Documents or Covered

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Information to USPS’s counsel within ten (10) business days following the

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termination of this Action (including any appeals hereof). Any work product created

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or filed by Plaintiffs’ counsel that contain Covered Documents or Covered

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Information and are retained by Plaintiffs’ counsel as part of their litigation files
remain subject to the terms of this Order.
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Covered Documents and Covered Information To Be Filed Under Seal.

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Those portions of any filings with the Court that include Covered Documents or

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Covered Information produced subject to this Order shall be made under seal pursuant

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to the applicable rules of the Court.

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10. Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive the
designating party’s right to secure protection under this agreement for such material.

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Upon timely correction of a designation, the receiving party must make reasonable

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efforts to ensure that the material is treated in accordance with the provisions of this

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agreement.

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11. Dispute Resolution. In the event that any party to this Action disagrees at
any stage of these proceedings with the designation of Covered Documents or
Covered Information, the parties shall try first to resolve such dispute in good faith
on an informal basis.

If the parties cannot resolve a challenge without court
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intervention, the designating party may file and serve a motion to retain

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confidentiality. The burden of persuasion in any such motion shall be on the

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designating party. All parties shall continue to maintain the material in question as
confidential until the court rules on the challenge
12. Continued Effect. Insofar as the provisions of this Order restrict the

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communication and use of the documents produced thereunder, this Order shall

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continue to be binding after the conclusion of this litigation except (a) that there shall

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be no restriction on documents that are used as exhibits in court (unless such exhibits

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were filed under seal) and (b) that a party may seek the written permission of the
producing party or further order of the Court with respect to dissolution or
modification of this Order.

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13. Unauthorized Disclosure. Should any Covered Documents or Covered

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Information be disclosed, through inadvertence or otherwise, to any person not

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authorized to receive same under this Order, then the disclosing party shall use its

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best efforts to bind such person to the terms of this Order. In particular, the disclosing
party shall (a) promptly inform such person in writing of all the provisions of this
Order and use its best efforts to immediately retrieve all copies of the Covered

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Documents or Covered Information; (b) simultaneously serve, by electronic mail

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upon the USPS, copies of the inadvertently disclosed material or a full description of

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the inadvertently disclosed material; and (c) request such person to sign the agreement

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in the form attached hereto as Exhibit A. The executed agreement shall promptly be
served by electronic mail upon the USPS.
14. Nonparty Demand. If either party to this Action receives or is served with
a third-party subpoena, request for production, or some other legal demand seeking
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Covered Documents or Covered Information, that party shall give prompt actual

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written notice, within ten (10) days of receipt of such subpoena, demand, or legal

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process, to the opposing party. USPS may then object to the production of the
Covered Documents or Covered Information to the extent permitted by law. Should
the third-party seeking access to the Covered Documents or Covered Information take

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action to enforce such a subpoena, demand or other legal process, USPS has the

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affirmative obligation to initiate (or intervene in) a judicial proceeding to defend and

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substantiate any claim that the Covered Documents or Covered Information is not

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subject to disclosure.
15. Nothing in this Order shall bar amendment of this Order by agreement of
the parties or by Order of the Court. Any such amendment made by agreement of the
parties shall be made in writing.
16.

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This Order shall remain in full force and effect until modified,

superseded, or terminated on the record by agreement of the parties or by an Order of
the Court.
17. The parties agree to submit this Order for entry by the Court and to be
bound by its terms while waiting its entry by the Court.
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18. Nothing in this Order shall be construed as prohibiting or otherwise

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restricting USPS’ own use or disclosure of Covered Documents or Covered

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Information subject to this Order, including disclosure to the Department of Justice.
IT IS SO ORDERED. The District court is hereby directed to enter this Order
and to provide copies to counsel.
DATED this 3rd day of September 2020.

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Stanley A. Bastian

Chief United States District Judge

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EXHIBIT A

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Acknowledgment and Agreement to be Bound

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a.

My name is______. I am over the age of twenty-one years, of sound mind and

capable of making this Affidavit. I am personally acquainted with the facts stated
herein and know them to be true and correct. I have never been convicted of a felony

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or a crime involving moral turpitude.

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b.

My address is ______.

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c.

My present occupation is ________________, and I am currently

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employedby___________.
d.

I have received a copy of the Protective Order in this Action, and have carefully

read and understand its provisions.

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e.

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confidence, will not disclose to anyone other than those persons specifically

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authorized by the Protective Order, and will not copy or use for purposes other than

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I will comply with all of the provisions of the Protective Order. I will hold in

for this Action, any “Covered Documents or Covered Information” (as those terms
are defined in the Protective Order) which I receive in this Action.
f.

I further agree to submit to the jurisdiction of the United States District Court

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for the Eastern District of Washington for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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g.

I declare under penalty of perjury that the foregoing is true and correct.

Date:
City and State where sworn and signed:
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ORDER GRANTING UNOPPOSED MOTION FOR ENTRY OF A PROTECTIVE ORDER

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Printed name:

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ECF No. 50

Signature:

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ORDER GRANTING UNOPPOSED MOTION FOR ENTRY OF A PROTECTIVE ORDER