San Juan Sun Grown LLC et al v. Chelan County

Filing 11

STIPULATED PROTECTIVE ORDER. Signed by Judge Salvador Mendoza, Jr. (SK, Case Administrator)

1
2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

3
4
5

SAN JUAN SUN GROWERS LLC, a
Washington limited liability company;
and ALEX KWON, an individual,

6
Plaintiffs,

No. 2:17-CV-00026-SMJ

STIPULATED PROTECTIVE
ORDER

7
v.
8
9

CHELAN COUNTY WASHINGTON,
a municipal corporation,
Defendant.

10
11

Pursuant to FRCP 26(c) and the stipulation of the parties, the Court hereby

12
13

enters the following Protective Order:

14

I.

PURPOSES AND LIMITATIONS

15

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

16

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

17

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

18

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

19

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

20

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

ORDER - 1

1

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

2

not presumptively entitle parties to file confidential information under seal.

3

2.

“CONFIDENTIAL” MATERIAL

4

“Confidential” material shall include the following documents and tangible

5

things produced or otherwise exchanged: Plaintiffs’ personal and corporate

6

financial records, business strategies, and methods.

7

3.

SCOPE

8

The protections conferred by this agreement cover not only confidential

9

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

10

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

11

confidential material; and (3) any testimony, conversations, or presentations by

12

parties or their counsel that might reveal confidential material. However, the

13

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

14

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

15

4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

16

4.1 Basic Principles. A receiving party may use confidential material that is

17

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

18

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

19

Confidential material may be disclosed only to the categories of persons and under

20

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

ORDER - 2

1

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

2

ensures that access is limited to the persons authorized under this agreement.

3

4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

4

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

5

receiving party may disclose any confidential material only to:

6

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

7

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

8

information for this litigation;

9

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

10

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

11

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

12

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

13

(c) experts and consultants to whom disclosure is reasonably

14

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

15

Agreement to Be Bound” (Exhibit A);

16

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

17

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

18

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

19

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

20

ORDER - 3

1

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

2

confidential material;

3

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

4

disclosure is reasonably necessary and who have signed the “Acknowledgment

5

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

6

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

7

testimony or exhibits to depositions that reveal confidential material must be

8

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

9

as permitted under this agreement;
(g) the author or recipient of a document containing the information

10
11

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

12

4.3 Filing Confidential Material. Before filing confidential material or

13

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

14

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

15

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

16

whether a motion to seal or stipulation and proposed order is warranted.

17

5.

DESIGNATIVE PROTECTED MATERIAL

18

5.1 Exercise of Restraint and Care in Designating Material for Protection.

19

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

20

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

ORDER - 4

1

that qualifies under the appropriate standards. The designating party must

2

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

3

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

4

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

5

not swept unjustifiably within the ambit of this agreement.

6

Mass,

indiscriminate,

or

routinized

designations

are

prohibited.

7

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

8

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

9

development process or to impose unnecessary expenses and burdens on other

10

parties) expose the designating party to sanctions.

11

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

12

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

13

promptly notify all other parties that it is withdrawing the mistaken designation.

14

5.2 Manner and Timing of Designations. Except as otherwise provided in

15

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

16

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

17

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

18

material is disclosed or produced.

19

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

20

documents and deposition exhibits, but excluding transcripts of depositions or

ORDER - 5

1

other pretrial or trial proceedings), the designating party must affix the word

2

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

3

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

4

party also must clearly identify the protected portion(s) (e.g., by making

5

appropriate markings in the margins).

6

(b) Testimony given in deposition or in other pretrial or trial

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

information or item is stored the word “CONFIDENTIAL.” If only a portion or

15

portions of the information or item warrant protection, the producing party, to the

16

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

17

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

18

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

19

the designating party’s right to secure protection under this agreement for such

20

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

ORDER - 6

1

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

2

provisions of this agreement.

3

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

4

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

5

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

6

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

7

substantial unfairness, unnecessary economic burdens, or a significant disruption

8

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

9

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

10

original designation is disclosed.

11

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

12

dispute regarding confidential designations without court involvement. Any

13

motion regarding confidential designations or for a protective order must include a

14

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

15

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

16

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

17

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

18

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

19

6.3 Judicial Intervention. If the parties cannot resolve a challenge without

20

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

ORDER - 7

1

confidentiality under Local Rule 7.1. The burden of persuasion in any such motion

2

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

3

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

4

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

5

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

6

on the challenge.

7

7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

8
9

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

10

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

11

action as “CONFIDENTIAL,” that party must:
(a) promptly notify the designating party in writing and include a

12
13

copy of the subpoena or court order;

14

(b) promptly notify in writing the party who caused the subpoena or

15

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

16

subpoena or order is subject to this agreement. Such notification shall include a

17

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

18
19

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

20

ORDER - 8

1

8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

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

3

disclosed confidential material to any person or in any circumstance not

4

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

5

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

6

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

7

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

8

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

9

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

10

A.

11

9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

12
When a producing party gives notice to receiving parties that certain
13
inadvertently produced material is subject to a claim of privilege or other
14
protection, the obligations of the receiving parties are those set forth in Federal
15
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
16
whatever procedure may be established in an e-discovery order or agreement that
17
provides for production without prior privilege review. Parties shall confer on an
18
appropriate non-waiver order under Fed. R. Evid. 502.
19
10.

NON TERMINATION AND RETURN OF DOCUMENTS

20

ORDER - 9

1

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

2

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

3

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

4

may agree upon appropriate methods of destruction.

5

Notwithstanding this provision, counsel are entitled to retain one archival

6

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

7

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

8

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

9

contain confidential material.

10

The confidentiality obligations imposed by this agreement shall remain in

11

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

12

otherwise.

13
14
15

IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order
and provide copies to all counsel.
DATED this 4th day of April 2017.

16
__________________________
SALVADOR MENDOZA, JR.
United States District Judge

17
18
19
20

ORDER - 10