Young v. The Standard Fire Insurance Company

Filing 50

ORDER GRANTING STIPULATED 48 MOTIONS FOR PROTECTIVE ORDER AND TO EXPEDITE 49 . 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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Sep 24, 2018

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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DIANE YOUNG, individually
NO: 2:18-CV-31-RMP
Plaintiff,

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ORDER GRANTING STIPULATED
MOTIONS FOR PROTECTIVE
ORDER AND TO EXPEDITE

v.
THE STANDARD FIRE
INSURANCE COMPANY, a foreign
insurance company,
Defendant.

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BEFORE THE COURT are the parties’ stipulated motion for entry of a

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protective order, ECF No. 48, and accompanying stipulated motion to expedite

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hearing of the same, ECF No. 49. Having reviewed the protective order and the

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remaining record, the Court finds good cause to grant the stipulated motions on an

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expedited basis and enter the agreed-upon protective order.

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Accordingly, IT IS HEREBY ORDERED that the parties’ stipulated

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motions for protective order, ECF No. 48, and to expedite hearing of the same, ECF

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No. 49, are GRANTED. The protective order in effect is set forth below.
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STIPULATED PROTECTIVE ORDER
I.

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PURPOSES AND LIMITATIONS
Plaintiff has requested discovery from Defendant The Standard Fire

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Insurance Company (herein after “Defendant”) that Defendant believes is likely to

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involve production of confidential, proprietary, or private information for which

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special protection may be warranted. Accordingly, the parties hereby stipulate to

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and petition the court to enter the following Stipulated Protective Order. It does

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not confer blanket protection on all disclosures or responses to discovery, the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

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legal principles, and it does not presumptively entitle parties to file confidential

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information under seal.

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II.

“CONFIDENTIAL” MATERIAL

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“Confidential” documents shall mean documents or information produced

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or disclosed within any proceeding, formal or informal, including but not limited

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to, written discovery, depositions, affidavits, document production and expert

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disclosures, by any of the parties to this action or by any non-party witness, which

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a Party designates as “Confidential.” For purposes of this Order, Confidential

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information may include, but is not limited to, documents that the designating

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party contends contain trade secrets, proprietary or commercially sensitive

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information, employee records and personnel files, and any other information
ORDER GRANTING STIPULATED MOTIONS FOR PROTECTIVE ORDER
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subject to specific privacy rights or other specific grounds recognized at law as

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justifying non-disclosure, including but not limited to redaction of an employee’s

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Social Security Information and health care information. This Order and the

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definition of “Confidential” does not constitute an agreement or stipulation that

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any specific documents are admissible, and all rights and objections thereto are

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reserved. Not all documents are Confidential; however, a producing Party reserves

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the right to evaluate such documents and to designate such documents or portions

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thereof should they contain Confidential information within. Confidential

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information shall be revealed only to: (a) the Court, the Court’s staff and any

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mediators, arbitrators, and their staff; (b) the parties and their officers, employees,

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and agents who are providing assistance to counsel in this action (including in-

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house counsel participating in the defense of this action), and any persons joined as

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parties in the future; (c) the parties’ attorneys of record and those attorneys'

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associates, assistants, employees, and vendors; (d) consultants, technical experts,

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expert witnesses, potential fact witnesses, and agents involved in the preparation of

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this action who have signed the “Agreement to be Bound by Confidentiality

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Agreement” attached hereto as Exhibit A; (e) insurers or representatives of the

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parties who have signed the “Agreement to be Bound by Confidentiality

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Agreement” attached hereto as Exhibit A; and (f) court reporters, their transcribers,

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assistants, and employees. Documents which a Party or its legal counsel has

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caused or permitted to enter the public domain through means other than litigation

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shall not be deemed Confidential.

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SCOPE

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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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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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

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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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reasonably ensures that access is limited to the persons authorized under this

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agreement.

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B. 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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(i) the parties who are named parties in the above caption of the subject
lawsuit to which this Stipulated Protective Order applies;
(ii) 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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(iii) experts and consultants to whom disclosure is reasonably necessary for

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

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Bound” (Exhibit A);

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(iv) the Court, court personnel, and court reporters and their staff;

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

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of confidential material, provided that counsel for the party retaining the copy or

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

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

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material;

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(vi) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement

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to 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 designated as

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CONFIDENTIAL and may not be disclosed to anyone except as permitted under

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this agreement;

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(vii) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

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C. Filing Confidential Material.

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Any party including materials designated CONFIDENTIAL in any pleading,

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motion, deposition transcript or other paper filed with the Clerk of this Court shall,

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at that party’s option, either:

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(a) provide five court days advance written notice to the designating party of

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the intent to submit CONFIDENTIAL materials, identifying the specific materials

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to be filed and the date of the filing so that the designating party may file a motion

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to seal and provide redacted versions of the CONFIDENTIAL materials to the

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non-designating party; if the designating party so moves before the date of filing,

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then the non-designating party shall file the redacted versions of the

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CONFIDENTIAL materials with his or her public court filing (with an unredacted

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copy provided to chambers in camera) or, if necessary, file CONFIDENTIAL

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documents under seal; or

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(b) file a separate motion or stipulation seeking an order from the Court
determining whether the CONFIDENTIAL material may be maintained under seal

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so that the Court can make particular findings justifying the limitation on public

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access as may be appropriate.

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The burden is on the designating party to provide the Court with the

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information needed to determine whether all, a portion, or none of the document

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may be filed under seal. Court findings and conclusions reflecting the same and

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authorizing any sealing or redaction must also be filed by the designating party.

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Consistent with this paragraph, a filing party’s exercise of the option to file a

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separate, non-stipulated motion seeking a Court order determining whether

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CONFIDENTIAL material may be maintained under seal does not constitute

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assent to the designating party’s CONFIDENTIAL designations or the issue of

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whether any or all such materials should be maintained under seal.

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V.

DESIGNATING PROTECTED MATERIAL
A. 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. Mass, indiscriminate, or

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routinized designations are prohibited. Designations that are shown to be clearly
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unjustified or that have been made for an improper purpose (e.g., to unnecessarily

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encumber or delay the case development process or to impose unnecessary

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expenses and burdens on other 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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B. Manner and Timing of Designations. Except as otherwise provided in this

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agreement (see, e.g., second paragraph of section V.B.(i) 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 so designated before or when the material is

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disclosed or produced.

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

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

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trial proceedings), the designating party must affix the word “CONFIDENTIAL”

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to each page that contains confidential material. If only a portion or portions of the

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material on a page qualifies for protection, the producing party also must clearly

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

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margins).

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(ii) Testimony given in deposition or in other pretrial or trial proceedings:

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

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proceeding, all protected testimony, without prejudice to their right to so designate
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other testimony after reviewing the transcript. Any party or non-party may, within

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fifteen days after receiving a deposition transcript, designate portions of the

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transcript, or exhibits thereto, as confidential.

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

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

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

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information or item warrant protection, the producing party, to the extent

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practicable, shall identify the protected portion(s).

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C. 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. Corrective designations made fifty days or more

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after the information or materials at issue are disclosed to the opposing party are

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subject to a rebuttable presumption of untimeliness. The designating party shall

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bear the burden of demonstrating circumstances justifying the presumptively

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untimely designations.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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A. 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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B. 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. If the parties are unable

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to agree upon the confidentiality of a document that has been designated as

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“Confidential”, then the party which wants to introduce the document into

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evidence bears the burden of establishing the appropriate designation for that

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document.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
If a party is served with a subpoena or a court order issued in other litigation

that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that party must:
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(i) promptly notify the designating party in writing and include a copy of the
subpoena or court order;

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(ii) promptly notify in writing the party who caused the subpoena or order to

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

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

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agreement; and

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(iii) cooperate with respect to all reasonable procedures sought to be pursued
by the designating party whose confidential material may be affected.

9 VIII. 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 “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
When a producing party gives notice to receiving parties that certain

inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the receiving parties are those set forth in CR
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26(b)(5). This provision is not intended to modify whatever procedure may be

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

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without prior privilege review. The parties shall confer on an appropriate non-

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waiver order under Fed. R. Evid. Rule 502.

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X.

NON TERMINATION AND RETURN OF DOCUMENTS

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

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and upon written request of the producing party, each receiving party must return

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or destroy all confidential material including all copies, extracts and summaries

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thereof. 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. The confidentiality obligations imposed by this agreement

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shall remain in effect until a designating party agrees otherwise in writing or a

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court orders otherwise.

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IT IS SO ORDERED. The District Court Clerk is directed to enter this

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Order and provide copies to counsel.

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DATED September 24, 2018.

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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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