Shaw v. American Family Mutual Insurance Company

Filing 17

PROTECTIVE ORDER Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)

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

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Jul 30, 2018

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UNITED STATES DISTRICT COURT
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SEAN F. MCAVOY, CLERK

EASTERN DISTRICT OF WASHINGTON

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JARED SHAW, an unmarried
individual,

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Plaintiff,

PROTECTIVE ORDER

v.

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NO: 2:17-CV-432-RMP

AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,

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Defendant.
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PROTECTIVE ORDER
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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. The parties acknowledge that this
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agreement is consistent with LCR 26(c). It does not confer blanket protection on
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all 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 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.

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“CONFIDENTIAL” MATERIAL
“Confidential” material shall include, but is not limited to, the following

documents and tangible things produced or otherwise exchanged:

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(a)

American Family’s claims manuals;

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(b)

American Family’s course and training materials; and

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(c)

American Family’s confidential and proprietary information that may

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be included within documents produced pursuant to Plaintiff’s

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discovery requests.
3.

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SCOPE
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

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

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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 counsel) of

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the receiving party to whom disclosure is reasonably necessary for this litigation,

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unless the parties agree that a particular document or material produced is for

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Attorney’s Eyes Only and is so designated;

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(c)

experts and consultants to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgement and Agreement to

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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 of 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 disclosure is

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reasonably necessary and who had signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the designating party or

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ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal confidential material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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agreement;

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(g)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or know the 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. Local Civil Rule

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5(g) sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the court to file material under seal.

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5.

DESIGNATING PROTECTED MATERIAL

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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.

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

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

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process or to impose unnecessary expenses and burdens on other parties) expose

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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 agreement (see, e.g., second paragraph 5.2(a) below), or as otherwise

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

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under this agreement must be clearly designated 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

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

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word “CONFIDENTIAL” to each page that contains confidential material.

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If only a portion or portions of the material on a page qualifies for

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protection, the producing party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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(b)

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the parties must identify on the record, during the deposition, hearing, or

Testimony given in deposition or in other pretrial or trial proceedings:

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other proceeding, all protected testimony, without prejudice to their right to

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

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non-party may, within fifteen 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)

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

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

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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

Other tangible items: the producing party must affix in a prominent

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 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

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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 engaged

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

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to resolve the dispute without court action. The certification must list the date,

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

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face-to-face meeting or a telephone conference.

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6.3

Judicial Intervention. If the parties cannot resolve a challenge without

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 on

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the challenge.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
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:
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(a)

promptly notify the designating party in writing and include a copy of

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the subpoena or court order;
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(b)

promptly notify in writing the party who caused the subpoena or order

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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 agreement. Such notification shall
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include a copy of this agreement; and
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(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
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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 “Acknowledgement 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
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
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may agree upon appropriate methods of destruction.
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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 transcripts,

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

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

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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 STIPULATED, THROUGH COUNSEL OF RECORD.
PURSUANT TO STIPULATION, IT IS SO ORDERED.

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IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the
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production of any documents in this proceeding shall not, for the purposes of this
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proceeding or any other proceeding in any other court, constitute a waiver by the
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producing party of any privilege applicable to those documents, including the
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attorney-client privilege, attorney work-product protection, or any other privilege
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or protection recognized by law.
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The District Court Clerk is hereby directed to enter this Order and provide
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copies to counsel.
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DATED July 30, 2018.
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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Court

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EXHIBIT A
ACKNOWLEDGEMENT 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

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the 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 Western

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District of Washington on ______________ [date] in the case of Shaw v. American

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Family, USDC Cause No. 2:17-cv-00432-RMP. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment

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

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

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

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Stipulated Protective Order, even if such enforcement proceedings occur after the
termination of this action.

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Date: _________________________________

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City and State where sworn and signed: _______________________________

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Printed name: ________________________________
Signature: _______________________________

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