Hugler v. DeWalt et al

Filing 53


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1 2 3 4 5 6 7 UNITED STASTES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON R. ALEXANDER ACOSTA, U.S. Secretary of Labor, Plaintiff, 8 9 10 11 12 13 14 15 v. JAMES DEWALT; ROBERT G. BAKIE; JACK L. FALLIS, JR.; JEFFREY A. BARTON; ASSOCIATED INDUSTRIES MANAGEMENT SERVICES, INC.; THE ASSOCIATED INDUSTRIES OF THE INLAND NORTHWEST; and THE ASSOCIATED EMPLOYERS HEALTH AND WELFARE TRUST, Civil Action No. 2:17-cv-00082-TOR STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION Hon. Thomas O. Rice Defendants. 16 17 18 All parties in this action have agreed to the terms of this Stipulated Protective 19 Order (the “Order”); pursuant to that stipulation and Federal Rule of Civil Procedure 20 26(c), the Court hereby enters the following protective order: 21 22 1. Scope. This Order applies as of the start of discovery in this litigation on October 26, 2017, the date of the parties’ scheduling conference under 23 Fed.R.Civ.P. 26(f). See ECF # 33 at 1. STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 1 2 3 2. Confidential Information. As used in this Order, “Confidential Information” means information that a Designating Party marks as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” and that falls within 4 one or more of the following categories: (a) information prohibited by statute from 5 6 disclosure; (b) information that reveals trade secrets; (c) other commercially sensitive 7 information that the Designating Party has maintained as confidential and whose 8 disclosure could cause financial or business-related injury to the Designating Party; 9 (d) medical information concerning any individual; (e) personal identity information; 10 (f) income tax returns (including attached schedules and forms), W-2 forms and 1099 11 forms; or (g) personnel or employment records. 12 13 (a) Confidential Information includes both (1) information in documents, 14 including deposition transcripts, marked as “CONFIDENTIAL – SUBJECT 15 TO PROTECTIVE ORDER” and falling within one or more of the preceding 16 categories and (2) information, derived from such documents, that discloses 17 (including summarizes) the substance of such information. 18 19 20 21 22 23 (b) Information or documents that are available to the public cannot be designated as Confidential Information. (c) Indices or lists that do not identify the substance of Confidential Information are not Confidential Information. (d) Confidential Information cannot include information that plaintiff STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 2 1 Secretary received before the date of this Order. 2 3. Designation of Documents. 3 (a) “Designating Party” means a named party to this litigation who 4 5 6 7 8 9 10 designates Confidential Information in accordance with this Order. Only a named party to this litigation can be a Designating Party. (b) In accordance with § 3 or § 4 below, a Designating Party may designate a document being produced through discovery as Confidential Information by placing or affixing the words, “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” on the document and on all copies in a manner that 11 12 will not interfere with the document’s legibility. As used in this Order, 13 “copies” includes electronic and non-electronic images, duplicates, extracts, 14 summaries, or descriptions that contain the Confidential Information. 15 (c) Applying the marking, “CONFIDENTIAL – SUBJECT TO 16 PROTECTIVE ORDER,” protects or otherwise classifies a document only to 17 the extent provided in this Order. 18 19 (d) Except as provided in § 4 below concerning deposition transcripts, a 20 Designating Party must diligently attempt to identify and, if desired, designate 21 Confidential Information before, in this action, producing any documents that 22 contain Confidential Information. 23 (e) Plaintiff Secretary of Labor (“Secretary”) has agreed that, by marking a STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 3 1 document as Confidential Information, the Designating Party thereby requests 2 that the Secretary treat the Confidential Information as exempt from the 3 Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”), under FOIA 4 Exemption 4 (for “trade secrets and . . . commercial or financial 5 6 information . . [that is] privileged or confidential”) and/or Exemption 6 (for 7 personal information of which disclosure “would constitute an unwarranted 8 invasion of personal privacy”). 5 U.S.C. § 552(b)(4), (6). 9 10 (f) Where a Designating Party designates all or part of a document (including a deposition transcript) as Confidential Information, that designation 11 operates as a representation by that Designating Party’s counsel of record in 12 13 this action that the designated material contains Confidential Information as 14 defined by § 2 above in this Order. 15 4. Designation of Deposition Testimony. To be eligible to designate any part 16 17 of a deposition transcript as Confidential Information, the Designating Party must obtain a copy of the deposition transcript within sixteen calendar days after the 18 19 20 testimony is recorded at the deposition. The deposition testimony shall be treated as Confidential Information until the expiration of ten calendar days after the 21 Designating Party receives a copy of the deposition transcript. Within this ten-day 22 period, a Designating Party may serve a Notice of Designation to all parties of record 23 as to the specific portions of the testimony that are designated Confidential STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 4 1 Information, and thereafter only those portions identified in the Notice of Designation 2 shall be protected by the terms of this Order. A Designating Party may consent to 3 withdraw a confidentiality designation from any portion of a deposition transcript. 4 5 6 5. Protection of Confidential Information. (a) General Protections. Confidential Information can only be used 7 or disclosed by the parties, the parties’ counsel, or any other persons 8 identified in subparagraph 5.b only for conduct of this litigation, 9 10 including any appeal thereof. (b) Permitted Disclosures. The parties, parties’ counsel, any 11 12 person who has signed a copy of this Order’s Exhibit A (titled 13 “Acknowledgment and Agreement to be Bound”), and deposition 14 witnesses personally served with a copy of this Order shall not disclose 15 and shall not either knowingly or negligently permit the disclosure of 16 17 any Confidential Information to any person or entity other than those in subparagraphs (i) - (ix) below. 18 19 20 21 22 23 (i) Counsel. Parties’ counsel and counsel’s employees who have responsibility concerning this action; (ii) Parties. Individual parties and a party’s employees, but only to the extent counsel determines in good faith that the employee’s assistance is reasonably necessary to conduct of this STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 5 1 litigation. For the Secretary, “party’s employees” shall mean 2 employees of the Department of Labor; 3 (iii) The Court and Its Personnel; 4 5 (iv) Court Reporters and Recorders. Court reporters and 6 recorders engaged for depositions, hearings, court-sponsored 7 conferences, or similar matters; 8 9 (v) Contractors. Those persons specifically engaged for the limited purpose of copying, organizing, or processing documents, 10 including outside vendors hired to process electronically stored 11 12 documents; 13 (vi) Consultants and Experts. Consultants, investigators, or 14 experts employed by the parties or counsel for the parties to assist 15 in the preparation and trial of this action, but only after such 16 persons have signed a copy of this Order’s Attachment A, titled 17 Acknowledgment and Agreement to Be Bound; 18 19 (vii) Witnesses at Depositions. During their depositions, 20 witnesses in this action to whom disclosure is reasonably 21 necessary and who have been served with a copy of this Order. 22 Witnesses shall not retain a copy of documents containing 23 Confidential Information, except that witnesses may receive a STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 6 1 copy of all exhibits marked at their depositions in connection with 2 review of the witness’s deposition transcript. 3 (viii) Author or Recipient. An author or recipient of the 4 document (not including a person who first received the document 5 6 7 8 9 10 as a result of this litigation); and (ix) Others by Consent. Other persons only by written consent of the Designating Party or upon this Court’s order. (c) Control of Documents. The parties and their counsel shall make reasonable efforts to prevent unauthorized or inadvertent disclosure of 11 12 13 Confidential Information. For three years after this case terminates, counsel shall maintain the originals of their copies of this Order’s 14 Attachment A, titled Acknowledgment and Agreement to Be Bound, 15 signed by persons acknowledging their obligations under this Order. 16 17 (d) Designating Party’s Use of Its Own Confidential Information. This Order does not restrict any Designating Party from using or 18 19 20 disclosing its own Confidential Information for any purpose. (e) Other Agreements Not Foreclosed. This Order does not 21 foreclose either the parties’ agreements to keep confidential other 22 documents, information, things, or any party’s application to the Court 23 for protection of other documents, information, or things. STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 7 1 2 3 6. Waiver and Nonwaiver of Protection. (a) Each party has agreed that it will not assert that a Designating Party has waived any protection under this Order where: 4 5 6 (i) before producing the Confidential Information in question, the Designating Party had diligently reviewed its records to 7 identify documents eligible for designation as Confidential 8 Information; and 9 10 (ii) for documents other than deposition transcripts, upon learning that it either has not designated particular eligible 11 12 13 documents as Confidential Information or has designated particular Confidential Information erroneously, the Designating 14 Party either timely designates the particular documents as 15 Confidential Information or timely corrects its pre-existing 16 designation. 17 (b) Where a party fails to designate eligible documents other than 18 deposition transcripts as Confidential Information in circumstances other 19 20 21 22 23 than those defined in § 6(a)(i) and § 6(a)(ii) above, this Order does not protect those undesignated documents. (c) If a party does not designate particular deposition testimony as Confidential Information in accordance with § 4 above, that deposition STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 8 1 testimony cannot thereafter be designated as Confidential Information. 2 (d) If a Designating Party files Confidential Information not under 3 seal and without redaction in a court filing, the Designating Party 4 thereby abandons its designation of that Confidential Information. 5 6 (e) This Order will not be deemed violated by a failure to maintain 7 documents’ confidentiality during a time when those documents were 8 not designated as Confidential Information. 9 10 7. Filing of Confidential Information. This Order does not authorize any document’s filing under seal. Where a party wishes to file with the Court under seal 11 12 13 any Confidential Information or any material referring to Confidential Information, the filing party must obtain the Court’s permission to do so. Before moving the Court 14 for permission to file Confidential Information under seal, the filing party must meet 15 and confer with the Designating Party to determine whether the Designating Party 16 will remove the confidential designation, whether the document can be redacted, or 17 whether a motion or stipulation to seal is warranted. As stated in the scheduling order 18 entered as ECF #36 in this action, “‘compelling reasons’ must be shown to seal 19 20 records attached to a dispositive motion, and ‘good cause’ must be shown to seal 21 records attached to a non-dispositive motion. Kamakana v. City and County of 22 Honolulu, 447 F.3d 1172, 1178–80 (9th Cir. 2006).” 23 8. No Greater Protection of Specific Documents. Except on privilege or STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 9 1 work product grounds, which this Order does not address, no party may withhold 2 discoverable information on the ground that it requires protection greater than this 3 Order affords, unless the Court enters an order providing such greater protection. 4 9. Challenges to Designation of Confidential Information. 5 6 (a) Meet and Confer. A party challenging a Confidential 7 Information designation must do so in good faith. Before filing any 8 motion challenging the designation, the party must first confer directly 9 with the Designating Party’s counsel. In conferring, the challenging 10 party must explain the basis for its challenge and must give the 11 Designating Party an opportunity to review, explain, and reconsider the 12 13 challenged designation. The Designating Party must respond to the 14 challenge within five (5) business days after first being notified of the 15 challenge. 16 17 (b) Telephonic Conferences With the Court. Without filing a motion but only after complying with § 9(a) above, counsel may contact 18 chambers to schedule a telephonic conference to obtain an expedited 19 20 ruling on designation challenges. 21 (c) Judicial Intervention. A party may challenge a confidentiality 22 designation by filing and serving a motion that identifies the challenged 23 material and sets forth in detail the basis for the challenge. Each such STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 10 1 motion must be accompanied by a competent declaration that explains 2 how the movant has complied with this Order’s meet-and-confer 3 requirements. The Designating Party retains the burden of persuasion in 4 any such motion. Until the Court rules on the challenge, all parties shall 5 6 7 continue to treat the disputed material as Confidential Information. 10. Use of Confidential Information on Motion, at a Hearing, or at Trial. 8 Nothing in this Order shall be construed to affect the Court’s use of any document, 9 material, or information at any trial or hearing, and further Court orders may govern 10 the use of Confidential Information at a hearing or at trial. 11 12 13 11. Confidential Information Subpoenaed or Ordered Produced in Other Litigation. (a) If a receiving party is served with a subpoena or a court order 14 issued in other litigation for disclosure of Confidential Information, the 15 16 receiving party must immediately thereafter notify the Designating Party 17 in writing and provide the Designating Party with a copy of the 18 subpoena or court order. 19 20 (b) Immediately after being served with such a subpoena or court order, the receiving party must in writing inform the party who issued 21 the subpoena or who seeks to enforce the court order that this Order 22 23 applies to some or all of the material covered by the subpoena or court STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 11 1 order. Also immediately after being served with such a subpoena or 2 court order, the receiving party must deliver a copy of this Order 3 promptly to the party who issued the subpoena or who seeks to enforce 4 the court order. 5 6 (c) The receiving party must cooperate with respect to all reasonable 7 procedures sought to be pursued by the Designating Party whose 8 Confidential Information may be affected. 9 10 (d) The purpose of imposing these duties is to alert the interested persons to this Order’s existence and to afford the Designating Party in 11 this case an opportunity to protect its Confidential Information in the 12 13 court from which the subpoena or order issued. The Designating Party 14 shall bear the burden and the expense of seeking protection of its 15 Confidential Information in that court, and nothing in these provisions 16 should be construed as authorizing or encouraging a receiving party in 17 this action to disobey another court’s lawful directive. The obligations 18 set forth in this paragraph apply to a receiving party as long as it has 19 20 possession, custody, or control of Confidential Information. 21 12. Challenges to Sealing Orders. A party or interested member of the 22 public has a right to challenge the sealing of particular documents that have been filed 23 under seal, and the Designating Party asserting confidentiality will have the burden of STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 12 1 2 3 demonstrating the propriety of filing under seal. 13. Obligations on Conclusion of Litigation. (a) Order Continues in Force. Unless otherwise ordered, this 4 5 6 7 Order shall remain in force after one or more final judgments have resolved all claims in this case and are no longer appealable. (b) Retention of Jurisdiction. This Court retains jurisdiction to 8 enforce this Order after one or more final judgments have resolved all 9 claims in this case and are no longer appealable. 10 (c) Obligations. Within sixty (60) days after one or more final 11 12 13 judgments have resolved all claims in this case and are no longer appealable, the receiving party shall destroy all documents marked 14 “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” under this 15 Order, unless the document has been offered into evidence, filed without 16 restriction as to disclosure, or the designation as Confidential 17 Information has been waived by the Designating Party or removed by 18 order of the Court. 19 20 21 (d) Retention of Work Product and One Set of Filed Documents. Notwithstanding § 13(c) above, counsel may retain: 22 (i) attorney work product, including an index that refers or 23 relates to designated Confidential Information, so long as that STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 13 1 work product does not duplicate verbatim substantial portions of 2 Confidential Information; and 3 (ii) one complete set of all documents filed with the Court, 4 including those filed under seal. 5 (e) Use in Subsequent Litigation. An attorney may use his or her work 6 7 product in subsequent litigation, provided that its use does not disclose or use 8 Confidential Information. 9 (f) Deletion of Documents Filed Under Seal From the Electronic Case 10 Filing (ECF) System. Nothing in this Order shall be interpreted to direct the 11 Court’s maintenance or disposition of Confidential Information filed under 12 seal. Filings under seal shall be deleted from the Court’s ECF system only 13 14 pursuant to the Court’s procedures or upon order of the Court. 15 14. Secretary’s Responsibilities Under ERISA § 506(b). Nothing in this 16 agreement shall preclude or limit the Secretary’s use or disclosure of Confidential 17 Information in fulfilling his responsibilities under ERISA § 506(b), 29 U.S.C. § 18 1106(b). 19 20 // 21 // 22 // 23 STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 14 1 2 3 15. Persons Bound. This Order shall take effect when entered and shall be binding upon all counsel of record and their law firms, the parties, and other persons made subject to this Order by its terms. 4 5 6 SO ORDERED. ENTERED this 9th day of August, 2018 7 8 9 10 _______________________________ THOMAS O. RICE Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 15 1 2 FOR DEFENDANTS JAMES DEWALT, ET AL.: FOR R. ALEXANDER ACOSTA, U.S. SECRETARY OF LABOR: 3 4 5 6 7 8 9 10 KATE O’SCANNLAIN Solicitor of Labor /s/ Amanda S. Amert_____________ AMANDA S. AMERT Jonathan A. Enfield Jenner & Block LLP 353 N. Clark Street Chicago, Illinois 60654‐3456 (312) 222‐9350 G. WILLIAM SCOTT Associate Solicitor for Plan Benefits Security ROBERT FURST Counsel for Litigation Christopher J. Rillo Jenner & Block LLP 50 California Street, 15th Floor San Francisco, CA 94111 /s/ Peter Dolan______________ PETER DOLAN, Senior Trial Attorney EIRIK CHEVERUD, Trial Attorney MARC SARATA, Trial Attorney 11 12 13 14 15 16 Thomas W. McLane Law Firm of Thomas W. McLane PLLC 103 E. Indiana Avenue, Suite A Spokane, WA 99201 (509) 290-6968 Plan Benefits Security Division Office of the Solicitor, U.S. Dept. of Labor 200 Constitution Ave., N.W., Rm N-4611 Washington, D.C. 20013 (202) 693-5612 Attorneys for Defendants Attorneys for Plaintiff 17 18 19 20 21 22 23 STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION 16 1 ATTACHMENT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _______________________________________ [print or type full name], 4 of _______________________________________________________________ 5 _____________________________________________ [print or type full address] 6 7 8 9 declare under penalty of perjury that I have received and read in its entirety the Stipulated Protective Order re: Confidential Information, issued on August 9, 2018 as ECF # 53 by the U.S. District Court for the Eastern District of Washington in R. Alexander Acosta v. James DeWalt, et al., Case No. 2:17-cv-00082-TOR. I have read and I understand the Protective Order’s terms and agree to be bound by 10 those terms. I understand that the Protective Order’s terms obligate me to use 11 materials designated as Confidential Information in accordance with the Protective 12 13 Order solely for the purposes of the indicated litigation and not to disclose any such Confidential Information to any other person, firm, or concern not authorized by the Protective Order. I understand that violation of the Protective Order may result in 14 15 penalties for contempt of court. I submit to the jurisdiction of the U.S. District Court for the Eastern District of 16 Washington in matters relating to the Protective Order, even if such proceedings 17 occur after this litigation’s termination. 18 19 Date: ______________________ City and State where sworn and signed: ___________________________________ 20 21 Printed Name: _________________________________________ 22 23 Signature: _____________________________________________ STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION i

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