Globe Tire Distributors Inc v. Carlisle Transportation Products Inc et al

Filing 12

STIPULATED PROTECTIVE ORDER; granting 11 Agreed Motion for Protective Order. Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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7

No.

GLOBE TIRE DISTRIBUTORS, INC., a
Washington corporation,

CV-13-3013-EFS

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STIPULATED PROTECTIVE ORDER

Plaintiff,
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v.
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CARLISLE TRANSPORTATION PRODUCTS,
INC., a foreign corporation,
Defendant.

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1.

Purposes And Limitations

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Discovery in this action is likely to involve production of

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confidential, proprietary, or private information for which special

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protection may be warranted. Accordingly, the parties hereby stipulate

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to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this agreement is consistent with

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LCR 26(c). It does not confer blanket protection on all disclosures or

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responses

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disclosure and use extends only to the limited information or items

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that are entitled to confidential treatment under the applicable legal

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principles, and it does not presumptively entitle parties to file

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confidential information under seal.

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//

to

discovery,

the

STIPULATED PROTECTIVE ORDER - 1

protection

it

affords

from

public

2.

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“Confidential” Material

“Confidential” material shall include the following documents

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and

tangible

things

produced

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Transportation Products internal pricing documents.
3.

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The

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protections

conferred

or

otherwise

exchanged:

Carlisle

Scope
by

this

agreement

cover

not

only

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confidential material (as defined above), but also (1) any information

8

copied

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excerpts, summaries, or compilations of confidential material; and (3)

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any testimony, conversations, or presentations by parties or their

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counsel

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protections conferred by this agreement do not cover information that

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is in the public domain or becomes part of the public domain through

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trial or otherwise.

or

extracted

that

4.

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4.1

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might

from

confidential

reveal

material;

confidential

(2)

material.

all

copies,

However,

the

Access To And Use Of Confidential Material

Basic Principles. A receiving party may use confidential

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material that is disclosed or produced by another party or by a non-

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party in connection with this case only for prosecuting, defending, or

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attempting to settle this litigation. Confidential material may be

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disclosed only to the categories of persons and under the conditions

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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

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that ensures that access is limited to the persons authorized under

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this agreement.

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//

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/

STIPULATED PROTECTIVE ORDER - 2

1

4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise

ordered

by

the

court

or

permitted

in

writing

by

the

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designating party, a receiving party may disclose any confidential

4

material only to:

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(a) the receiving party’s counsel of record in this action, as

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well as employees of counsel to whom it is reasonably necessary to

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disclose the information for this litigation;

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

of

the

for

receiving

this

party

litigation,

to

whom

unless

disclosure

the

parties

is

reasonably

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necessary

agree

that

a

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particular document or material produced is for Attorney’s Eyes Only

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and is so designated;

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(c) experts and consultants to whom disclosure is reasonably

14

necessary for this litigation and who have signed the “Acknowledgment

15

and Agreement to Be Bound” (Exhibit A);

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(d) the court, court personnel, and court reporters and their
staff;

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(e) copy or imaging services retained by counsel to assist in

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the duplication of confidential material, provided that counsel for

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the party retaining the copy or imaging service instructs the service

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not to disclose any confidential material to third parties and to

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immediately

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material;

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return

all

originals

and

copies

of

any

confidential

(f) during their depositions, witnesses in the action to whom

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disclosure

is

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“Acknowledgment

reasonably
and

necessary

Agreement

STIPULATED PROTECTIVE ORDER - 3

to

Be

and

who

Bound”

have

(Exhibit

signed
A),

the

unless

1

otherwise agreed by the designating party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions

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that reveal confidential material must be separately bound by the

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court reporter and may not be disclosed to anyone except as permitted

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under this agreement;
(g)

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the

author

or

recipient

of

a

document

containing

the

7

information or a custodian or other person who otherwise possessed or

8

knew the information.
4.3

9

Filing

Confidential

Material.

Before

filing

confidential

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material or discussing or referencing such material in court filings,

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the filing party shall confer with the designating party to determine

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whether

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

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to seal or stipulation and proposed order is warranted. Local Civil

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Rule 5(g)1 sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the

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court to file material under seal.

the

designating

5.

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5.1

19

party

will

remove

the

confidential

Designating Protected Material

Exercise of Restraint and Care in Designating Material for

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Protection. Each party or non-party that designates information or

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items for protection under this agreement must take care to limit any

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such

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appropriate

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

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written communications that qualify, so that other portions of the

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1

designation

to

standards.

specific
The

material

designating

that
party

qualifies
must

under

the

designate

for

For the purposes of this Order, Local Civil Rule refers to the Local Rules
for the United States District Court for the Western District of Washington.

STIPULATED PROTECTIVE ORDER - 4

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material, documents, items, or communications for which protection is

2

not warranted are not swept unjustifiably within the ambit of this

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agreement.

4

Mass, indiscriminate, or routinized designations are prohibited.

5

Designations that are shown to be clearly unjustified or that have

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been made for an improper purpose (e.g., to unnecessarily encumber or

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delay the case development process or to impose unnecessary expenses

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and

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sanctions.

burdens

on

other

parties)

expose

the

designating

party

to

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

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11

or

12

protection,

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parties that it is withdrawing the mistaken designation.

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items

5.2

that

it

the

designated

designating

Manner

and

for

party

Timing

of

protection
must

do

promptly

Designations.

not

qualify

notify

Except

as

all

for

other

otherwise

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provided in this agreement (see, e.g., second paragraph of section

16

5.2(a) below), or as otherwise stipulated or ordered, disclosure or

17

discovery material that qualifies for protection under this agreement

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must be clearly so designated before or when the material is disclosed

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or produced.

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

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documents

and

deposition

exhibits,

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depositions or other pretrial or trial proceedings), the designating

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party must affix the word “CONFIDENTIAL” to each page that contains

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confidential material. If only a portion or portions of the material

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on a page qualifies for protection, the producing party also must

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STIPULATED PROTECTIVE ORDER - 5

but

excluding

transcripts

of

1

clearly identify the protected portion(s) (e.g., by making appropriate

2

markings in the margins).
(b) Testimony given in deposition or in other pretrial or trial

3
4

proceedings:

the

parties

must

identify

on

the

record,

during

the

5

deposition, hearing, or other proceeding, all protected testimony,

6

without prejudice to their right to so designate other testimony after

7

reviewing the transcript. Any party or non-party may, within fifteen

8

days after receiving a deposition transcript, designate portions of

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the 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

12

which the information or item is stored the word “CONFIDENTIAL.” If

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only

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protection, the producing party, to the extent practicable, shall

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identify the protected portion(s).

a

portion

or

portions

of

the

information

or

item

warrant

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5.3 Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does

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not, standing alone, waive the designating party’s right to secure

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protection

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correction of a designation, the receiving party must make reasonable

21

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.
6.1

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25

a

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challenge

under

this

agreement

for

such

material.

Upon

timely

Challenging Confidentiality Designations

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

designation
to

of
a

confidentiality

designating

party’s

STIPULATED PROTECTIVE ORDER - 6

at

any

time.

Unless

confidentiality

a

prompt

designation

is

1

necessary to avoid foreseeable, substantial unfairness, unnecessary

2

economic

3

litigation,

4

confidentiality

5

promptly after the original designation is disclosed.
6.2

6

burdens,
a

or

party

a

significant

does

designation

disruption

not

waive

by

its

electing

or

right

not

to

delay

to

mount

of

the

challenge
a

a

challenge

Meet and Confer. The parties must make every attempt to

7

resolve any dispute regarding confidential designations without court

8

involvement. Any motion regarding confidential designations or for a

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protective order must include a certification, in the motion or in a

10

declaration or affidavit, that the movant has engaged in a good faith

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meet and confer conference with other affected parties in an effort to

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resolve the dispute without court action. The certification must list

13

the date, manner, and participants to the conference. A good faith

14

effort

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conference.

to

6.3

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confer

Judicial

requires

a

face-to-face

Intervention.

If

the

meeting

parties

or

a

cannot

telephone

resolve

a

17

challenge without court intervention, the designating party may file

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and serve a motion to retain confidentiality under Local Civil Rule 7

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(and in compliance with Local Civil Rule 5(g), if applicable). The

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burden of persuasion in any such motion shall be on the designating

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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

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parties) may expose the challenging party to sanctions. All parties

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shall continue to maintain the material in question as confidential

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until the court rules on the challenge.

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//

STIPULATED PROTECTIVE ORDER - 7

7.

1

Protected Material Subpoenaed Or Ordered Produced In Other
Litigation

2
If a party is served with a subpoena or a court order issued in
3
other litigation that compels disclosure of any information or items
4
designated in this action as “CONFIDENTIAL,” that party must:
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(a) promptly notify the designating party in writing and include
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a copy of the

subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena
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or order to issue in the other litigation that some or all of the
9
material

covered

by

the

subpoena

or

order

is

subject

to

this

10
agreement. Such notification shall include a copy of this agreement;
11
and
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(c) cooperate with respect to all reasonable procedures sought
13
to be pursued by the designating party whose confidential material may
14
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,
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it

has

disclosed

confidential

material

to

any

person

or

in

any

18
circumstance not authorized under this agreement, the receiving party
19
must immediately (a) notify in writing the designating party of the
20
unauthorized disclosures, (b) use its best efforts to retrieve all
21
unauthorized copies of the protected material, (c) inform the person
22
or persons to whom unauthorized disclosures were made of all the terms
23
of this agreement, and (d) request that such person or persons execute
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the “Acknowledgment and Agreement to Be Bound” that is attached hereto
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as Exhibit A.
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STIPULATED PROTECTIVE ORDER - 8

9.

1

Inadvertent Production Of Privileged Or Otherwise Protected
Material

2
When a producing party gives notice to receiving parties that
3
certain

inadvertently

produced

material

is

subject

to

a

claim

of

4
privilege

or

other

protection,

the

obligations

of

the

receiving

of

Civil

Procedure

to

modify

whatever

5
parties

are

those

set

forth

This

provision

in

Federal

Rule

6
26(b)(5)(B).

is

not

intended

7
procedure may be established in an e-discovery order or agreement that
8
provides for production without prior privilege review. Parties shall
9
confer on an appropriate non-waiver order under Fed. R. Evid. 502.
10
10.

Non Termination And Return Of Documents

11
Within 60 days after the termination of this action, including
12
all

appeals,

each

receiving

party

must

return

all

confidential

13
material to the producing party, including all copies, extracts and
14
summaries

thereof.

Alternatively,

the

parties

may

agree

upon

15
appropriate methods of destruction.
16
Notwithstanding this provision, counsel are entitled to retain
17
one

archival

copy

of

all

documents

filed

with

the

court,

trial,

18
deposition, and hearing transcripts, correspondence, deposition and
19
trial exhibits, expert reports, attorney work product, and consultant
20
and expert work product, even if such materials contain confidential
21
material.
22
The confidentiality obligations imposed by this agreement shall
23
remain in effect until a designating party agrees otherwise in writing
24
or a court orders otherwise.
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//
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STIPULATED PROTECTIVE ORDER - 9

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IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

28th

day of January 2014.

4
5

s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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STIPULATED PROTECTIVE ORDER - 10

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

3

_____________________________

6

Stipulated

7

District Court for the Eastern District of Washington on [date] in the

8

case

9

Products, Inc., Cause No. 13-3013 EFS. I agree to comply with and to

10

be bound by all the terms of this Stipulated Protective Order and I

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understand and acknowledge that failure to so comply could expose me

12

to sanctions and punishment in the nature of contempt. I solemnly

13

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

14

that is subject to this Stipulated Protective Order to any person or

15

entity except in strict compliance with the provisions of this Order.

Globe

Tire

Distributors,

was

address],

issued

Inc.

v.

by

the

Carlisle

declare

name],

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

full

full

5

Order

type

type

of_________________

Protective

or

or

4

of

[print

[print

United

under

States

Transportation

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I further agree to submit to the jurisdiction of the United

17

States District Court for the Eastern District of Washington for the

18

purpose of enforcing the terms of this Stipulated Protective Order,

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even if such enforcement proceedings occur after termination of this

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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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Q:\EFS\Civil\2013\3013.stip.prot.order.lc2.docx

STIPULATED PROTECTIVE ORDER - 11