Thomas v. Colville City of et al

Filing 18

ORDER GRANTING 17 STIPULATED MOTION FOR PROTECTIVE ORDER. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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GEORGE E. THOMAS,
NO: 13-CV-0120-TOR

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Plaintiff,
PROTECTIVE ORDER

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v.
CITY OF COLVILLE, a Municipal
Corporation, COLVILLE CITY
POLICE DEPARTMENT; REX
NEWPORT, and JANE DOE,

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Defendants.
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BEFORE THE COURT is a Stipulated Protective Order (ECF No. 17),

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which the parties have petitioned the Court to enter. Pursuant to the parties’

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stipulation, IT IS HEREBY ORDERED:

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1.

PURPOSES AND LIMITATIONS

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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. The parties acknowledge that this agreement

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is consistent with Fed. R. Civ. P. 26(c). It does not confer blanket protection on all

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disclosure 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

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presumptively entitle parties to file confidential information under seal.

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2. “CONFIDENTIAL” MATERIAL

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“Confidential” material shall include the following documents and tangible

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things produced or otherwise exchanged: Colville City Police Department Personnel

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File for Officer Rex Newport; Colville City Police Department training records;

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other private data of Colville City police officers; plaintiffs’ medical records;

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financial records; and other sensitive materials of a private, non-public nature that

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may be produced in discovery. These documents contain private and confidential

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information and sensitive law enforcement information that is not otherwise available

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to the public, the disclosure of which would hamper effective law enforcement.

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3. SCOPE

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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

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parties or their counsel that might reveal confidential material.

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protections conferred by this agreement do not cover information that is in the public

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domain or becomes part of the public domain through trial or otherwise.

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However, the

4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1 Basic Principles. A receiving party may use confidential material

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

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this 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

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the conditions described in this agreement. Confidential material must be stored and

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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 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the Court or permitted in writing by the designating party, a

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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

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employees of counsel to whom it is reasonably necessary to disclose the information

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for this litigation;

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(b)

the officers, directors, and employees (including in house counsel) of

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the receiving party to whom disclosure is reasonably necessary for this litigation,

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

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Attorney’s Eyes Only and is so designated;

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(c)

experts and consultants to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgement and Agreement to Be

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Bound” (Exhibit A);

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(d)

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

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(e)

copy or imaging services retained by counsel to assist in the

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supplication 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

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to third parties and to immediately return all originals and copies of any confidential

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material;

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(f)

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

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered

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by the Court. Pages of transcribed depositions testimony or exhibits to depositions

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that reveal confidential material must be separately bound by the court reporter and

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may not be disclosed to anyone except as permitted under this agreement;

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(g)

the author or recipient of a document containing the information to a

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

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5. DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for

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Protection.

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

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protection under this agreement must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The designating

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party must designate for protection only those parts of material, documents, items,

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oral or written communications that qualify, so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this agreement.

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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 to

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

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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.

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5.2

Manner and Timing of Designations.

Except as otherwise

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provided in this agreement (see, e.g., second paragraph of section 5.2(a) below), or as

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

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protection under this agreement must be clearly so designated before or when the

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material is disclosed or produced.

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(a) Information in documentary form: (e.g., paper or electronic

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documents and 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

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markings in the margins).

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(b)

Testimony given in deposition or in other pretrial or trial

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proceedings: the parties must identify on the record, during the deposition, hearing,

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or other proceeding, all protected testimony, without prejudice to their right to so

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designate other testimony after reviewing the transcript. Any party or non-party may,

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within fifteen days after receiving a deposition transcript, designate portions of the

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transcript, or exhibits thereto, as confidential.

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(c)

Other tangible items: the producing party must affix in a

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prominent place on the exterior of the container or containers in which the

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information or items 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

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extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failure to Designate.

If timely corrected, an

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inadvertent failure to designate qualified information or items does not, standing

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alone, waive the designating party’s right to secure protection under this agreement

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

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

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provisions of this agreement.

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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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

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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

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resolve any dispute regarding confidential designations without Court involvement.

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Any motion regarding confidential designations or for a protective order must

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

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has engaged in a good faith meet and confer conference with other affected parties in

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an effort to resolve the dispute without Court action. The certification must list the

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date, manner, and participants to the conference. A food faith effort to confer

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requires a face-to-face meeting or a telephone conference.

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6.3

Judicial Intervention. If the parties cannot resolve a challenge

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without Court intervention, the designating party may file and serve a motion to

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retain confidentiality under Local Civil Rule 7 (and in compliance with Local Civil

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rule 5(g), if applicable). 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.
7. PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED 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

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

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of this agreement; and

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(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the designating party whose confidential material may be affected.

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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

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(a)

(b)
protected material,

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use its best efforts to retrieve all unauthorized copies of the

disclosures,

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notify in writing the designating party of the unauthorized

(c)

inform the person or persons to 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

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“Acknowledgement and Agreement to Be Bound” that is attached hereto as Exhibit

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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,

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the obligations of the receiving parties are those set forth in Federal Rule of Civil

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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. Parties shall confer on an appropriate non-waiver

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order under Fed.R.Evid. 502.

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10. NONTERMINATION AND RETURN OF DOCUMENT

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Within 60 days after termination of this action, including all appeals, each

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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 copy

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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

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material.

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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

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otherwise.

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IT IS SO ORDERED:
The District Court Executive is hereby directed to enter this Order and
provide copies to counsel.
DATED November 13, 2013.

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THOMAS O. RICE
United States District Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ________________________________, of _________________________,

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declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the

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Eastern District of Washington on ___________ in the case of Thomas v. City of
Colville, et al., U.S. District Court (E.D. Wash.) No. CV-13-120-TOR. I agree to
comply with and to be bound by all the terms of this Stipulated Protective Order and
I understand and acknowledge that failure to so comply could expose me to sanctions

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and punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Stipulated Protective
Order to any person or entity except in strict compliance with the provisions of this

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Order.

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I further agree to submit to the jurisdiction of the United States District Court
for the Eastern District of Washington for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action.
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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