Bonivert v. Clarkston, City of et al

Filing 25

ORDER granting 23 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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RYAN J. BONIVERT,
NO: 2:14-CV-0056-TOR

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Plaintiff,
PROTECTIVE ORDER

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v.
CITY OF CLARKSTON, et al.,

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Defendants.

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BEFORE THE COURT is the parties’ Stipulated Motion for a Protective

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Order (ECF No. 23). For good cause shown, the motion is granted.

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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. It does not confer blanket protection on all

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disclosures or responses to discovery; the protection it affords from public

PROTECTIVE ORDER ~ 1

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

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to 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: (1) plaintiff Ryan Bonivert’s medical

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records and medical billing records. If appropriate, this stipulation may also be

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applied to other sensitive or confidential items that may be produced in the future.

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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. However, the

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

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

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4.

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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
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

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

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and maintained by a receiving party at a location and in a secure manner that

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ensures that 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

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

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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

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is for Attorney’s Eyes Only and is so designated;

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(c)

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)

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 the

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

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the copy or imaging service instructs the service not to disclose any confidential

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

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confidential material;

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(f)

during their depositions, witnesses in the action to whom

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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.

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exhibits to depositions that reveal confidential material must be separately bound

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

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this agreement;

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(g)

Pages of transcribed deposition testimony or

the author or recipient of a document containing the

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

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information.

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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.

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5.

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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

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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

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

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designating party to sanctions. If it comes to a designating party’s attention that

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information or items that it designated for protection do not qualify for protection,

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the designating party must promptly notify all other parties that it is withdrawing

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the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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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 deposition exhibits, but excluding transcripts of depositions or

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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

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appropriate 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

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may, within fifteen days after receiving a deposition transcript, designate portions

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of 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 which the

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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

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

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive

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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.

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6.

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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

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

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

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original designation is disclosed.

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6.2

Meet and Confer. The parties must make every attempt to resolve any

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dispute regarding confidential designations without court involvement. Any motion

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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

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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 good 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 without

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court intervention, the designating party may file and serve a motion to retain

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confidentiality under Local Civil Rule 7. The burden of persuasion in any such

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motion shall be on the designating party. Frivolous challenges, and those made for

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an improper purpose (e.g., to harass or impose unnecessary expenses and burdens

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on other parties) may expose the challenging party to sanctions. All parties shall

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continue to maintain the material in question as confidential until the court rules on

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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: (a) promptly notify the designating party in

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writing and include a copy of the subpoena or court order; (b) promptly notify in

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writing the party who caused the subpoena or order to issue in the other litigation

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that some or all of the material covered by the subpoena or order is subject to this

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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

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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

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

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

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

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

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and (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

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PROTECTED MATERIAL

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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

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protection, the obligations of the receiving parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order or agreement that

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provides for production without prior privilege review. Parties shall confer on an

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appropriate non-waiver order under Fed. R. Evid. 502.

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10.

NON-TERMINATION AND RETURN OF DOCUMENTS

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

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each receiving party must return all confidential material to the producing party,

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

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agree upon appropriate methods of destruction. Notwithstanding this provision,

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counsel are entitled to retain one archival copy of all documents filed with the

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court, trial, deposition, and hearing transcripts, correspondence, deposition and

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trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain confidential 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.

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The District Court Executive is hereby directed to enter this Order and

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provide copies to counsel.
DATED August 21, 2014.

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THOMAS O. RICE
United States District Judge

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PROTECTIVE ORDER ~ 10

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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 under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Eastern District of

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Washington on _________ [date] in the case of Ryan J. Bonivert v. City of

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Clarkston, et al, 2:14-cv-00056-TOR. I agree to comply with and to be bound by

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all the terms of this Stipulated Protective Order and I understand and acknowledge

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that failure to so comply could expose me to sanctions and punishment in the

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nature of contempt. I solemnly promise that I will not disclose in any manner any

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

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or entity except 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

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

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action.

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Date: _________________________________

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City and State where sworn and signed: _________________________________
Printed name: ______________________________

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Signature: __________________________________

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