ASC Machine Tools, Inc. v. The Hanover Insurance Group

Filing 17

STIPULATED PROTECTIVE ORDER granting 16 Stipulated Motion for Protective Order. Signed by Judge Salvador Mendoza, Jr. (SK, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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May 05, 2017
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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SEAN F. MCAVOY, CLERK

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ASC MACHINE TOOLS, INC., a
Washington corporation,

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Plaintiff,

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STIPULATED PROTECTIVE
ORDER

v.

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No. 2:16-CV-0425-SMJ

THE HANOVER AMERICAN
INSURANCE COMPANY, a Delaware
corporation,
Defendant.

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Before the Court, without oral argument, is the parties’ Stipulated Motion for

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a Protective Order. ECF No. 16. Having reviewed the pleadings and file in this

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matter, the Court is fully informed and GRANTS the motion. Pursuant to FRCP

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26(c) and the stipulation of the parties, the Court hereby enters the following

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Protective Order:

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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 have stipulated to the following Stipulated Protective

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Order. ECF No. 16. This Order does not confer blanket protection on all

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disclosures or responses to discovery. The protection it affords from public

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

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entitled to confidential treatment under the applicable legal principles, and it does

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not presumptively entitle parties to file confidential information under seal.

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2.

“Confidential” material shall include the following documents and tangible

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“CONFIDENTIAL” MATERIAL

things produced or otherwise exchanged:
 Tax Returns;

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 Business Models;

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 Rate and Pricing Information;

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 Customer or Marketing Information;

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 Confidential Commercial Information; and

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 Proprietary Information.

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3.

SCOPE
The protections conferred by this Order cover not only confidential material

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(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 Order 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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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 Order. 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

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that access is limited to the persons authorized under this Order.
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

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

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disclosure is reasonably necessary and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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designating party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal confidential material must be

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separately bound by the court reporter and may not be disclosed to anyone except

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as permitted under this Order;

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(g) the author or recipient of a document containing the information

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

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4.3

Filing Confidential Material. Before filing confidential material or

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

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

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

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whether a 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

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

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protection under this Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. The designating party must

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designate for 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 material,

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

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not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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

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an improper purpose (e.g., to unnecessarily encumber or delay the case

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development process or to impose unnecessary expenses and burdens on other

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parties) expose the 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.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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

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under this Order must be clearly designated as such before or when the material is

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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,

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hearing, or other proceeding, all protected testimony, without prejudice to their

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

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non-party may, within fifteen business days after receiving a deposition transcript,

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designate portions of the transcript, or exhibits thereto, as confidential.

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(c) Other tangible items: the producing party must affix in a
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).
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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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 Order 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 Order.

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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

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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

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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

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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.
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 under Local Civil Rule 7.1. 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

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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

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litigation that compels disclosure of any information or items designated in this

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action as “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;

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(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 Order. Such notification shall include a copy

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of this Order; and
(c) cooperate with respect to all reasonable procedures sought to be

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

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8.

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

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

disclosed confidential material to any person or in any circumstance not

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authorized under this Order, the receiving party must immediately (a) notify in

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writing the designating party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the protected material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request that such person or persons execute the

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“Acknowledgment 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

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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.

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NON TERMINATION AND RETURN OF DOCUMENTS
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

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may agree upon appropriate methods of destruction.
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

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transcripts, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, and consultant and expert work product, even if such materials

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contain confidential material.

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The confidentiality obligations imposed by this Order shall remain in effect
until a designating party agrees otherwise in writing or a court orders otherwise.
IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and

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STIPULATED
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provide copies to all counsel.
DATED this 5th day of May 2017.

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__________________________
SALVADOR MENDOZA, JR.
United States District Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________ [print or type full name], of _______________
[print or type full address], 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 Eastern District of Washington on ________

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in the case of ASC Machine Tools, Inc. v. Hanover American Ins. Co., Case No.

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2:16-cv-0425 SMJ. I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so

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

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solemnly promise that I will not disclose in any manner any information or item
that is subject to this Stipulated Protective Order to any person or entity except in

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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

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

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occur after termination of this action.

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Date: _________________________________
City and State where sworn and signed: _________________________________

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Printed name: ______________________________
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Signature: __________________________________

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Q:\SMJ\Civil\2016\ASC Machine Tools Inc. v. The Hanover Insurance Group-0425\stipulated protective order.lc2.docx

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