Contreras et al v. Heritage University

Filing 12

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

Case 1:22-cv-03034-TOR

ECF No. 12

filed 05/06/22

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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YADIRA CONTRERAS, ERICA
KRONECK, KYLE OLSON, AND
HENDRY (“CODY”) RODMAN III,

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Plaintiffs,

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Case No.: 2:22-CV-3034 TOR

STIPULATION AND
PROTECTIVE ORDER

vs.
HERITAGE UNIVERSITY,

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Defendant.

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1.

PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection may be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. It does not confer blanket protection on all

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disclosures or responses to discovery, the protection it affords from public disclosure

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and use extends only to the limited information or items that are entitled to

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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:

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(a) All medical and mental health records of the Plaintiffs that would

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otherwise be confidential under the Health Insurance Portability and

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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

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confidential under the Family Education Records Privacy Act, (FERPA);

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(c) All records that include the social security numbers of the Plaintiffs;

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(d) All records that contain private financial information of the Plaintiffs,

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including bank account information and/or income tax returns;
(e) All records that contain service member records or official military
personnel files;

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(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

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FERPA personnel records, trade secret information, personal health

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information, and educational records subject to FERPA;

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(g) Any portions of personnel files of current or former Heritage University.

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3.

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SCOPE
The protections conferred by this agreement cover not only confidential

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material (as defined above), but also (1) any information copied or extracted from

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confidential material; (2) all copies, excerpts, summaries, or compilations of

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confidential material; and (3) any testimony, conversations, or presentations by
parties or their counsel that might reveal confidential material.

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However, the protections conferred by this agreement do not cover

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information that is in the public domain or becomes part of the public domain

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through trial or otherwise.

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4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

Basic Principles. A receiving party may use confidential material that

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is disclosed or produced by another party or by a non-party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation.

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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

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access is limited to the persons authorized under this agreement.

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4.2

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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:

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(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;

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(b)

the officers, directors, and employees (including in house

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counsel) of the receiving party to whom disclosure is reasonably necessary for this

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litigation, unless the parties agree that a particular document or material produced is

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for Attorney’s Eyes Only and is so designated;

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(c)

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experts and consultants to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d)

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the court, court personnel, and court reporters and their staff;

(e)

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copy or imaging services retained by counsel to assist in the

duplication of confidential material, provided that counsel for the party retaining the

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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;

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(f)

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during their depositions, witnesses in the action to whom

disclosure is 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

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party or ordered by the court. Pages of transcribed deposition testimony or exhibits

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to depositions that reveal confidential material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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agreement;

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(g)

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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

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discussing or referencing such material in court filings, the filing party shall confer

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with the designating party to determine whether the designating party will remove

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the confidential designation, whether the document can be redacted, or whether a

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motion to seal or stipulation and proposed order is warranted. During the meet and

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confer process, the designating party must identify the basis for sealing the specific

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confidential information at issue, and the filing party shall include this basis in its

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motion to seal, along with any objection to sealing the information at issue. Failure

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to satisfy this requirement will result in the motion to seal being denied, in

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accordance with the strong presumption of public access to the Court’s files.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each party or non-party that designates information or items for protection under

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this agreement must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The designating party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify, so that other portions of the material, documents,

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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

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or delay the case development process or

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to impose unnecessary expenses and burdens on other parties) expose the

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designating party to sanctions.

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If it comes to a designating party’s attention that information or items that it

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designated for protection do not qualify for protection, the designating party must

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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

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stipulated or ordered, disclosure or discovery material that qualifies for protection

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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

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“CONFIDENTIAL” to each page that contains confidential material. If only a

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portion or portions of the material on a page qualifies for protection, the producing

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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:

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the parties and any participating non-parties must identify on the record, during the

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deposition or other pretrial proceeding, all protected testimony, without prejudice to

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their right to so designate other testimony after reviewing the transcript. Any party

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or non-party may, within fifteen days after receiving the transcript of the deposition

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or other pretrial proceeding, designate portions of the transcript, or exhibits thereto,

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as confidential. If a party or non-party desires to protect confidential information at

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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

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portions of the information or item warrant protection, the producing party, to the
extent practicable, shall identify the protected portion(s).
5.3

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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

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

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reasonable efforts to ensure that the material is treated in accordance with the

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provisions of this agreement.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any party or non-party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a

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designating party’s confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption or

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delay of the litigation, a party does not waive its right to challenge a confidentiality

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designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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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

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certification, in the motion or in a declaration or affidavit, that the movant has

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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,

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manner, and participants to the conference. A good faith effort to confer requires a

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face-to-face meeting or a telephone conference.

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6.3

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Judicial Intervention. If the parties cannot resolve a challenge without

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court 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. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the challenging party to sanctions. All parties shall continue to maintain the

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material in question as confidential until the court rules on the challenge.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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If a party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that party must:

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(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

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this agreement. Such notification shall include a copy
of this agreement; and
(c)

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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

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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confidential material to any person or in any circumstance not authorized under this

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agreement, the receiving party must immediately (a) notify in writing the designating

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party of the unauthorized disclosures, (b) use its best efforts to retrieve all

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unauthorized copies of the protected material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this agreement, and

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(d) request that such person or persons execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL
When a producing party gives notice to receiving parties that certain

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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

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may be established in an e-discovery order or agreement that provides for production

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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

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all copies, extracts and summaries thereof. Alternatively, the parties may agree upon

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appropriate methods of destruction.

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Notwithstanding this provision, counsel are entitled to retain one archival

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copy of all documents filed with the court, trial, deposition, and hearing transcripts,

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correspondence, deposition and trial exhibits, expert reports, attorney work product,

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and consultant and expert work product, even if such materials contain confidential
material.
The confidentiality obligations imposed by this agreement shall remain in

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effect until a designating party agrees otherwise in writing or a court orders
otherwise.

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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
[phone]
[e-mail]
Counsel for Plaintiffs

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DATED: May 5, 2022

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s/Paul J. Triesch
Paul J. Triesh, WSBA# 17445
Keating, Bucklin & McCormack, Inc.,
P.S.
801 Second Avenue, Suite 1210
Seattle, WA 98104
[phone]
[e-mail]
Attorney for Defendant

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the

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production of any documents in this proceeding shall not, for the purposes of this

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proceeding or any other federal or state proceeding, constitute a waiver by the

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producing party of any privilege applicable to those documents, including the

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attorney-client privilege, attorney work-product protection, or any other privilege or

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protection recognized by law.

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DATED May 6, 2022.

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THOMAS O. RICE
United States District Court Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ____________________________________ [print or type full name], of

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____________________________________ [print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand the Stipulation

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and Protective Order that was issued by the United States District Court for the

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Eastern District of Washington in the case of Yadira Contreras, Erica Kroneck, Kyle

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Olson, and Hendry “Cody” Rodman III v. Heritage University, CASE NO. 22-cv-

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03034 TOR. I agree to comply with and to be bound by all the terms of this

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Stipulation and Protective Order and I understand and acknowledge that failure to

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so comply could expose me to sanctions and punishment in the nature of contempt.

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I solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Stipulation and Protective Order to any person or entity except

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in strict compliance with the provisions of this Order.

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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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Stipulation and Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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