Contreras et al v. Heritage University

Filing 12

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

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Case 1:22-cv-03034-TOR ECF No. 12 filed 05/06/22 PageID.98 Page 1 of 13 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 9 10 YADIRA CONTRERAS, ERICA KRONECK, KYLE OLSON, AND HENDRY (“CODY”) RODMAN III, 11 Plaintiffs, 12 13 14 Case No.: 2:22-CV-3034 TOR STIPULATION AND PROTECTIVE ORDER vs. HERITAGE UNIVERSITY, 15 Defendant. 16 17 18 19 1. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, 20 21 proprietary, or private information for which special protection may be warranted. 22 Accordingly, the parties hereby stipulate to and petition the court to enter the 23 following Stipulated Protective Order. It does not confer blanket protection on all 24 25 disclosures or responses to discovery, the protection it affords from public disclosure 26 and use extends only to the limited information or items that are entitled to 27 28 STIPULATION AND PROTECTIVE ORDER - 1 Case 1:22-cv-03034-TOR 1 2 3 4 5 6 7 ECF No. 12 filed 05/06/22 PageID.99 Page 2 of 13 confidential treatment under the applicable legal principles, and it does not presumptively entitle parties to file confidential information under seal. 2. “CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things produced or otherwise exchanged: 8 (a) All medical and mental health records of the Plaintiffs that would 9 otherwise be confidential under the Health Insurance Portability and 10 11 12 13 Accountability Act of 1996 (HIPAA), including medical and mental heath records generated through the course of this litigation; (b) All educational records of the Plaintiffs that would otherwise be 14 15 confidential under the Family Education Records Privacy Act, (FERPA); 16 (c) All records that include the social security numbers of the Plaintiffs; 17 (d) All records that contain private financial information of the Plaintiffs, 18 19 20 21 including bank account information and/or income tax returns; (e) All records that contain service member records or official military personnel files; 22 23 24 25 (f) Any records or communication maintained by the Defendant about the Plaintiffs that contain information about other Heritage University Students that would not be subject to disclosures to third parties under 26 27 28 STIPULATION AND PROTECTIVE ORDER - 2 Case 1:22-cv-03034-TOR 1 filed 05/06/22 PageID.100 Page 3 of 13 FERPA personnel records, trade secret information, personal health 2 information, and educational records subject to FERPA; 3 (g) Any portions of personnel files of current or former Heritage University. 4 5 ECF No. 12 3. 6 SCOPE The protections conferred by this agreement cover not only confidential 7 8 material (as defined above), but also (1) any information copied or extracted from 9 confidential material; (2) all copies, excerpts, summaries, or compilations of 10 11 12 confidential material; and (3) any testimony, conversations, or presentations by parties or their counsel that might reveal confidential material. 13 However, the protections conferred by this agreement do not cover 14 15 information that is in the public domain or becomes part of the public domain 16 through trial or otherwise. 17 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 18 19 4.1 Basic Principles. A receiving party may use confidential material that 20 is disclosed or produced by another party or by a non-party in connection with this 21 case only for prosecuting, defending, or attempting to settle this litigation. 22 23 24 25 Confidential material may be disclosed only to the categories of persons and under the conditions described in this agreement. Confidential material must be stored and maintained by a receiving party at a location and in a secure manner that ensures that 26 27 access is limited to the persons authorized under this agreement. 28 STIPULATION AND PROTECTIVE ORDER - 3 Case 1:22-cv-03034-TOR 1 2 3 4 4.2 7 8 filed 05/06/22 PageID.101 Page 4 of 13 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the designating party, a receiving party may disclose any confidential material only to: 5 6 ECF No. 12 (a) the receiving party’s counsel of record in this action, as well as employees of counsel to whom it is reasonably necessary to disclose the information for this litigation; 9 (b) the officers, directors, and employees (including in house 10 11 counsel) of the receiving party to whom disclosure is reasonably necessary for this 12 litigation, unless the parties agree that a particular document or material produced is 13 for Attorney’s Eyes Only and is so designated; 14 (c) 15 experts and consultants to whom disclosure is reasonably 16 necessary for this litigation and who have signed the “Acknowledgment and 17 Agreement to Be Bound” (Exhibit A); 18 (d) 20 21 the court, court personnel, and court reporters and their staff; (e) 19 copy or imaging services retained by counsel to assist in the duplication of confidential material, provided that counsel for the party retaining the 22 23 24 25 copy or imaging service instructs the service not to disclose any confidential material to third parties and to immediately return all originals and copies of any confidential material; 26 27 28 STIPULATION AND PROTECTIVE ORDER - 4 Case 1:22-cv-03034-TOR 1 2 3 (f) ECF No. 12 filed 05/06/22 PageID.102 Page 5 of 13 during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and 4 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating 5 party or ordered by the court. Pages of transcribed deposition testimony or exhibits 6 7 to depositions that reveal confidential material must be separately bound by the court 8 reporter and may not be disclosed to anyone except as permitted under this 9 agreement; 10 (g) 11 12 13 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 4.3 Filing Confidential Material. Before filing confidential material or 14 15 discussing or referencing such material in court filings, the filing party shall confer 16 with the designating party to determine whether the designating party will remove 17 the confidential designation, whether the document can be redacted, or whether a 18 19 motion to seal or stipulation and proposed order is warranted. During the meet and 20 confer process, the designating party must identify the basis for sealing the specific 21 confidential information at issue, and the filing party shall include this basis in its 22 23 motion to seal, along with any objection to sealing the information at issue. Failure 24 to satisfy this requirement will result in the motion to seal being denied, in 25 accordance with the strong presumption of public access to the Court’s files. 26 27 28 STIPULATION AND PROTECTIVE ORDER - 5 Case 1:22-cv-03034-TOR 1 2 3 5. ECF No. 12 filed 05/06/22 PageID.103 Page 6 of 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 4 Each party or non-party that designates information or items for protection under 5 this agreement must take care to limit any such designation to specific material that 6 7 qualifies under the appropriate standards. The designating party must designate for 8 protection only those parts of material, documents, items, or oral or written 9 communications that qualify, so that other portions of the material, documents, 10 11 12 13 items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this agreement. Mass, indiscriminate, or routinized designations are prohibited. Designations 14 15 that are shown to be clearly unjustified or that have been made for an improper 16 purpose (e.g., to unnecessarily encumber or delay the case development process or 17 to impose unnecessary expenses and burdens on other parties) expose the 18 19 designating party to sanctions. 20 If it comes to a designating party’s attention that information or items that it 21 designated for protection do not qualify for protection, the designating party must 22 23 24 25 promptly notify all other parties that it is withdrawing the mistaken designation. 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 otherwise 26 27 stipulated or ordered, disclosure or discovery material that qualifies for protection 28 STIPULATION AND PROTECTIVE ORDER - 6 Case 1:22-cv-03034-TOR 1 2 3 4 5 6 7 ECF No. 12 filed 05/06/22 PageID.104 Page 7 of 13 under this agreement must be clearly so designated before or when the material is disclosed or produced. (a) Information in documentary form: (e.g., paper or electronic documents and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the designating party must affix the word 8 “CONFIDENTIAL” to each page that contains confidential material. If only a 9 portion or portions of the material on a page qualifies for protection, the producing 10 11 12 13 party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) Testimony given in deposition or in other pretrial proceedings: 14 15 the parties and any participating non-parties must identify on the record, during the 16 deposition or other pretrial proceeding, all protected testimony, without prejudice to 17 their right to so designate other testimony after reviewing the transcript. Any party 18 19 or non-party may, within fifteen days after receiving the transcript of the deposition 20 or other pretrial proceeding, designate portions of the transcript, or exhibits thereto, 21 as confidential. If a party or non-party desires to protect confidential information at 22 23 24 25 26 27 trial, the issue should be addressed during the pre-trial conference. (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 or item is stored the word “CONFIDENTIAL.” If only a portion or 28 STIPULATION AND PROTECTIVE ORDER - 7 Case 1:22-cv-03034-TOR 1 2 3 6 7 filed 05/06/22 PageID.105 Page 8 of 13 portions of the information or item warrant protection, the producing party, to the extent practicable, shall identify the protected portion(s). 5.3 4 5 ECF No. 12 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 8 material. Upon timely correction of a designation, the receiving party must make 9 reasonable efforts to ensure that the material is treated in accordance with the 10 11 12 13 provisions of this agreement. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a 14 15 designation of confidentiality at any time. Unless a prompt challenge to a 16 designating party’s confidentiality designation is necessary to avoid foreseeable, 17 substantial unfairness, unnecessary economic burdens, or a significant disruption or 18 19 delay of the litigation, a party does not waive its right to challenge a confidentiality 20 designation by electing not to mount a challenge promptly after the original 21 designation is disclosed. 22 23 24 25 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute regarding confidential designations without court involvement. Any motion regarding confidential designations or for a protective order must include a 26 27 certification, in the motion or in a declaration or affidavit, that the movant has 28 STIPULATION AND PROTECTIVE ORDER - 8 Case 1:22-cv-03034-TOR 1 2 3 ECF No. 12 filed 05/06/22 PageID.106 Page 9 of 13 engaged in a good faith meet and confer conference with other affected parties in an effort to resolve the dispute without court action. The certification must list the date, 4 manner, and participants to the conference. A good faith effort to confer requires a 5 face-to-face meeting or a telephone conference. 6 6.3 7 Judicial Intervention. If the parties cannot resolve a challenge without 8 court intervention, the designating party may file and serve a motion to retain 9 confidentiality. The burden of persuasion in any such motion shall be on the 10 11 designating party. Frivolous challenges, and those made for an improper purpose 12 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 13 expose the challenging party to sanctions. All parties shall continue to maintain the 14 15 material in question as confidential until the court rules on the challenge. 16 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 17 IN OTHER LITIGATION 18 19 If a party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this action as 21 “CONFIDENTIAL,” that party must: 22 23 24 25 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or 26 27 order to issue in the other litigation that some or all of the material covered by the 28 STIPULATION AND PROTECTIVE ORDER - 9 Case 1:22-cv-03034-TOR 1 2 3 6 7 filed 05/06/22 PageID.107 Page 10 of 13 subpoena or order is subject to this agreement. Such notification shall include a copy of this agreement; and (c) 4 5 ECF No. 12 cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 8 If a receiving party learns that, by inadvertence or otherwise, it has disclosed 9 confidential material to any person or in any circumstance not authorized under this 10 11 agreement, the receiving party must immediately (a) notify in writing the designating 12 party of the unauthorized disclosures, (b) use its best efforts to retrieve all 13 unauthorized copies of the protected material, (c) inform the person or persons to 14 15 whom unauthorized disclosures were made of all the terms of this agreement, and 16 (d) request that such person or persons execute the “Acknowledgment and 17 Agreement to Be Bound” that is attached hereto as Exhibit A. 18 19 20 21 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a producing party gives notice to receiving parties that certain 22 23 24 25 inadvertently produced material is subject to a claim of privilege or other 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 26 27 may be established in an e-discovery order or agreement that provides for production 28 STIPULATION AND PROTECTIVE ORDER - 10 Case 1:22-cv-03034-TOR 1 2 3 4 5 6 7 ECF No. 12 filed 05/06/22 PageID.108 Page 11 of 13 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, each receiving party must return all confidential material to the producing party, including 8 all copies, extracts and summaries thereof. Alternatively, the parties may agree upon 9 appropriate methods of destruction. 10 11 Notwithstanding this provision, counsel are entitled to retain one archival 12 copy of all documents filed with the court, trial, deposition, and hearing transcripts, 13 correspondence, deposition and trial exhibits, expert reports, attorney work product, 14 15 16 17 and consultant and expert work product, even if such materials contain confidential material. The confidentiality obligations imposed by this agreement shall remain in 18 19 20 effect until a designating party agrees otherwise in writing or a court orders otherwise. 21 22 23 24 25 26 27 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: May 4, 2022 s/ Lara Hruska_____________________ Lara Hruska, WSBA# 46531 Cedar Law PLLC 113 Cherry St., PMB 96563 Seattle, WA 98104 (206) 607-8277 Counsel for Plaintiffs 28 STIPULATION AND PROTECTIVE ORDER - 11 Case 1:22-cv-03034-TOR ECF No. 12 filed 05/06/22 PageID.109 Page 12 of 13 1 2 DATED: May 5, 2022 3 4 5 6 7 8 9 s/Paul J. Triesch Paul J. Triesh, WSBA# 17445 Keating, Bucklin & McCormack, Inc., P.S. 801 Second Avenue, Suite 1210 Seattle, WA 98104 (206) 623-8861 Attorney for Defendant PURSUANT TO STIPULATION, IT IS SO ORDERED. 10 11 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the 12 production of any documents in this proceeding shall not, for the purposes of this 13 proceeding or any other federal or state proceeding, constitute a waiver by the 14 15 producing party of any privilege applicable to those documents, including the 16 attorney-client privilege, attorney work-product protection, or any other privilege or 17 protection recognized by law. 18 19 DATED May 6, 2022. 20 21 22 23 THOMAS O. RICE United States District Court Judge 24 25 26 27 28 STIPULATION AND PROTECTIVE ORDER - 12 Case 1:22-cv-03034-TOR ECF No. 12 filed 05/06/22 PageID.110 Page 13 of 13 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 ____________________________________ [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the Stipulation 6 and Protective Order that was issued by the United States District Court for the 7 Eastern District of Washington in the case of Yadira Contreras, Erica Kroneck, Kyle 8 Olson, and Hendry “Cody” Rodman III v. Heritage University, CASE NO. 22-cv- 9 03034 TOR. I agree to comply with and to be bound by all the terms of this 10 Stipulation and Protective Order and I understand and acknowledge that failure to 11 so comply could expose me to sanctions and punishment in the nature of contempt. 12 I solemnly promise that I will not disclose in any manner any information or item 13 that is subject to this Stipulation and Protective Order to any person or entity except 14 in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Eastern District of Washington for the purpose of enforcing the terms of this 17 Stipulation and Protective Order, even if such enforcement proceedings occur after 18 termination of this action. 19 20 Date: 21 City and State where sworn and signed: 22 Printed name: 23 Signature: 24 25 26 27 28 STIPULATION AND PROTECTIVE ORDER - 13

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