Lebsack v. Union Pacific Railroad Company

Filing 16

STIPULATED PROTECTIVE ORDER. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)

1
2
3
4
5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

6
7
8

MATTHEW L. LEBSACK,

Case No. 2:18-CV-0019-TOR

9

Plaintiff,

10
11

v.

12
13
14

UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation,

15
16

Defendant.
1.

17
18
19
20
21
22
23
24
25
26
27

STIPULATED PROTECTIVE
ORDER

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

proprietary, or private information for which special protection may be warranted.
Accordingly, the parties hereby stipulate to and petition the court to enter the following
Stipulated Protective Order. This agreement does not confer blanket protection on all
disclosures or responses to discovery, the protection it affords from public disclosure
and use extends only to the limited information or items that are entitled to confidential
treatment under the applicable legal principles, and it does not presumptively entitle
parties to file confidential information under seal.
2.

“CONFIDENTIAL” MATERIAL
“Confidential” material shall include the following documents and tangible

things produced or otherwise exchanged:

28

STIPULATED PROTECTIVE ORDER - 1

1

a. Any and all documents referring or related to confidential and

2

proprietary human resources or business information; financial

3

records of the parties; compensation of Defendant’s current or

4

former personnel; policies, procedures or training materials of

5

Defendant; or Defendant’s organizational structure;

6

b. Any documents from the personnel, medical or workers’

7

compensation file of any current or former employee or contractor;

8

c. Any documents relating to the medical or health information of any
of Defendant’s current or former employees or contractors;

9

d. Any portions of depositions (audio or video) where Confidential

10

Information is disclosed or used as exhibits.

11
12

3.

SCOPE

13

The protections conferred by this agreement cover not only confidential material

14

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

15

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

16

and (3) any testimony, conversations, or presentations by parties or their counsel that

17

might reveal confidential material.

18

However, the protections conferred by this agreement do not cover information

19

that is in the public domain or becomes part of the public domain through trial or

20

otherwise.

21

4.

22

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

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

23

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

24

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

25

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

26

described in this agreement. Confidential material must be stored and maintained by a

27
28

STIPULATED PROTECTIVE ORDER - 2

1

receiving party at a location and in a secure manner that ensures that access is limited

2

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:
(a)

6

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 information

8

for this litigation;
(b)

9

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

10

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

11

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

12

Attorney’s Eyes Only and is so designated;
(c)

13

experts and consultants to whom disclosure is reasonably necessary

14

for this litigation and who have signed the “Acknowledgment and Agreement to Be

15

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 the

19

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

20

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

21

material;

22

(f)

during their depositions, witnesses in the action to whom disclosure

23

is reasonably necessary and who have signed the “Acknowledgment and Agreement to

24

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

25

the court. Pages of transcribed deposition testimony or exhibits to depositions that

26

reveal confidential material must be separately bound by the court reporter and may

27

not be disclosed to anyone except as permitted under this agreement;

28

STIPULATED PROTECTIVE ORDER - 3

(g)

1
2

the author or recipient of a document containing the information or

a custodian or other person who otherwise possessed or knew the information.
4.3

3

Filing Confidential Material.

Before filing confidential material or

4

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

5

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

6

confidential designation, whether the document can be redacted, or whether a motion

7

to seal or stipulation and proposed order is warranted.

8

5.

9

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

10

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

11

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

12

qualifies under the appropriate standards. The designating party must designate for

13

protection only those parts of material, documents, items, or oral or written

14

communications that qualify, so that other portions of the material, documents, items,

15

or communications for which protection is not warranted are not swept unjustifiably

16

within the ambit of this agreement.

17

5.2

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

18

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

19

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

20

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

21

disclosed or produced.

22

(a)

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

23

documents and deposition exhibits, but excluding transcripts of depositions or other

24

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

25

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

26

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

27
28

STIPULATED PROTECTIVE ORDER - 4

1

must clearly identify the protected portion(s) (e.g., by making appropriate markings in

2

the margins).
(b)

3

Testimony given in deposition or in other pretrial proceedings: the

4

parties and any participating non-parties must identify on the record, during the

5

deposition or other pretrial proceeding, all protected testimony, without prejudice to

6

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

7

non-party may, within fifteen days after receiving the transcript of the deposition or

8

other pretrial proceeding, designate portions of the transcript, or exhibits thereto, as

9

confidential. If a party or non-party desires to protect confidential information at trial,

10

the issue should be addressed during the pre-trial conference.
(c)

11

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

12

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

13

stored the word “CONFIDENTIAL.” If only a portion or portions of the information

14

or item warrant protection, the producing party, to the extent practicable, shall identify

15

the protected portion(s).
5.3

16

Inadvertent Failures to Designate. If timely corrected, an inadvertent

17

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

18

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

19

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

20

efforts to ensure that the material is treated in accordance with the provisions of this

21

agreement.

22

6.

23

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any party or non-party may challenge a

24

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

25

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

26

unfairness, unnecessary economic burdens, or a significant disruption or delay of the

27
28

STIPULATED PROTECTIVE ORDER - 5

1

litigation, a party does not waive its right to challenge a confidentiality designation by

2

electing not to mount a challenge promptly after the original designation is disclosed.
6.2

3

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

4

dispute regarding confidential designations without court involvement. Any motion

5

regarding confidential designations or for a protective order must include a

6

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

7

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

8

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

9

and participants to the conference. A good faith effort to confer requires a face-to-face

10

meeting or a telephone conference.
6.3

11

Judicial Intervention. If the parties cannot resolve a challenge without

12

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

13

confidentiality.

14

designating party. Frivolous challenges, and those made for an improper purpose (e.g.,

15

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

16

the challenging party to sanctions. All parties shall continue to maintain the material

17

in question as confidential until the court rules on the challenge.

18

7.

19

OTHER LITIGATION

The burden of persuasion in any such motion shall be on the

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

20

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

21

compels disclosure of any information or items designated in this action as

22

“CONFIDENTIAL,” that party must:

23
24
25
26

(a)

promptly notify the designating party in writing and include a copy

of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or

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

27
28

STIPULATED PROTECTIVE ORDER - 6

1

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

2

of this agreement; and
(c)

3

cooperate with respect to all reasonable procedures sought to be

4

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

5

8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

6

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

7

confidential material to any person or in any circumstance not authorized under this

8

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

9

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

10

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

11

disclosures were made of all the terms of this agreement, and (d) request that such

12

person or persons execute the “Acknowledgment and Agreement to Be Bound” that is

13

attached hereto as Exhibit A.

14

9.

15

PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

16

When a producing party gives notice to receiving parties that certain

17

inadvertently produced material is subject to a claim of privilege or other protection,

18

the obligations of the receiving parties are those set forth in Federal Rule of Civil

19

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

20

may be established in an e-discovery order or agreement that provides for production

21

without prior privilege review. The parties agree to the entry of a non-waiver order

22

under Fed. R. Evid. 502(d) as set forth herein.

23

10.

NON TERMINATION AND RETURN OF DOCUMENTS

24

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

25

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

26

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

27

appropriate methods of destruction.

28

STIPULATED PROTECTIVE ORDER - 7

1

Notwithstanding this provision, counsel are entitled to retain one archival copy

2

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

3

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

4

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

5

material.

6
7

The confidentiality obligations imposed by this agreement shall remain in effect
until a designating party agrees otherwise in writing or a court orders otherwise.

8

Nothing in this Order shall be construed as an admission as to the relevance,

9

authenticity, foundation or admissibility of any document, material, transcript, or other

10
11
12
13

information.
Nothing in the Protective Order shall be deemed to preclude any party from
seeking and obtaining, on an appropriate showing, a modification of this Order.
Once executed by all parties, the Stipulation shall be by treated by the Parties as

14

an Order of Court until it is formally approved by the Court.

15

IT IS SO STIPULATED:

16

DATED: September 26, 2018

17
18
19
20
21

ROSSI VUCINOVICH, PC
s/James Vucinovich
James K. Vucinovich, WSB 29199
[e-mail]
Counsel for Plaintiff

FISHER & PHILLIPS LLP
s/Clarence Belnavis
Clarence M. Belnavis, WSB 36681
[e-mail]
Margaret A. Burnham, WSB 47860
[e-mail]
Attorneys for Defendant

22

PURSUANT TO STIPULATION, IT IS SO ORDERED

23

IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the

24

production of any documents in this proceeding shall not, for the purposes of this

25

proceeding or any other proceeding in any other court, constitute a waiver by the

26

producing party of any privilege applicable to those documents, including the attorney-

27
28

STIPULATED PROTECTIVE ORDER - 8

1

client privilege, attorney work-product protection, or any other privilege or protection

2

recognized by law.

3

DATED October 12, 2018.

4
5
6
7

THOMAS O. RICE
Chief United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

STIPULATED PROTECTIVE ORDER - 9

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, ____________________________________ [print or type full name], of

4

____________________________________ [print or type full address], declare under

5

penalty of perjury that I have read in its entirety and understand the Stipulated

6

Protective Order that was issued by the United States District Court for the Eastern

7

District of Washington on______ [date] in the case of Lebsack v. Union Pacific

8

Railroad Company, Case No. 2:18-cv-0019-TOR. I agree to comply with and to be

9

bound by all the terms of this Stipulated Protective Order and I understand and

10

acknowledge that failure to so comply could expose me to sanctions and punishment

11

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

12

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

13

or entity except in strict compliance with the provisions of this Order.

14

I further agree to submit to the jurisdiction of the United States District Court

15

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

16

Stipulated Protective Order, even if such enforcement proceedings occur after

17

termination of this action.

18

Date:

19

City and State where sworn and signed:

20

Printed name:

21

Signature:

22
23
24
25
26
27
28

STIPULATED PROTECTIVE ORDER - 10