Britton v. ServiceLink Field Services LLC

Filing 36

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

1
2
3
4
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WASHINGTON

5
6
7
8

GINA L. BRITTON, a single woman,
TAMI J. FRASE-PHILLIPS, a married
woman in her individual capacity, and on
behalf of others similarly situated,

NO. 2:18-CV-0041-TOR
STIPULATED PROTECTIVE
ORDER

Plaintiff,

9
v.
10
11

SERVICELINK FIELD SERVICES,
LLC, formerly known as LPS FIELD
SERVICES, INC.,

12
Defendants.
13
Before the Court is the parties’ Stipulated Protective Order which was heard
14
without oral argument. Based on the parties’ stipulation, the following Stipulated
15
Protective Order is HEREBY ENTERED:
16
//
17
//
18
//
19
//
20
//
21
22

STIPULATED PROTECTIVE ORDER - 1

1

1.

PURPOSES AND LIMITATIONS
Disclosure and discovery in this action is likely to involve production of

2
3

confidential, proprietary, or private information for which special protection

4

from public disclosure and from use for any purpose other than prosecuting this

5

litigation would be warranted. This Stipulated Protective Order does not confer

6

blanket protection on all disclosures or responses to discovery and the

7

protection it affords extends only to the limited information or items that are

8

entitled, under the applicable legal principles, to treatment as confidential. This

9

Stipulated Protective Order creates no entitlement to file confidential

10

information under seal; the procedures that must be followed and the standards

11

that will be applied when a party seeks permission from the Court to file

12

material under seal will be governed by applicable law.

13

2.

14

DEFINITIONS
2.1.

Party: any party to this action, including all of its officers,

15

directors, employees, consultants, retained experts, and outside counsel (and

16

their support staff).

17

2.2.

Disclosure or Discovery Material: all items or information,

18

regardless of the medium or manner generated, stored, or maintained

19

(including, among other things, testimony, transcripts, or tangible things) that

20
21
22

STIPULATED PROTECTIVE ORDER - 2

1

are produced or generated in disclosures or responses to discovery in this

2

matter.

3

2.3.

“Confidential” Information or Items: information (regardless of

4

how generated, stored or maintained) or tangible things that qualify for

5

protection under standards developed under Fed. R. Civ. P. 26(c).

6
7
8
9
10

2.4.

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.
2.5.

Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this action.
2.6.

Designating Party: a Party or non-party that designates information

11

or items that it produces in disclosures or in responses to discovery as

12

“Confidential.”

13

2.7.

14
15
16

Protected Material: any Disclosure or Discovery Material that is

designated as “Confidential.”
2.8.

Outside Counsel: attorneys who are not employees of a Party but

who are retained to represent or advise a Party in this action.

17

2.9.

18

2.10. Counsel (without qualifier): Outside Counsel and House Counsel

19

House Counsel: attorneys who are employees of a Party.

(as well as their support staffs).

20
21
22

STIPULATED PROTECTIVE ORDER - 3

2.11. Expert: a person with specialized knowledge or experience in a

1
2

matter pertinent to the litigation who has been retained by a Party or its/her/his

3

counsel to serve as an expert witness or as a consultant in this action and who is

4

not a past or a current employee of a Party and who, at the time of retention, is

5

not anticipated to become an employee of a Party. This definition includes a

6

professional jury or trial consultant retained in connection with this litigation.
2.12. Professional Vendors: persons or entities that provide litigation

7
8

support services (e.g., photocopying; videotaping; translating; preparing

9

exhibits or demonstrations; organizing, storing, retrieving data in any form or

10

medium; etc.) and their employees and subcontractors.

11

3.

SCOPE

12

The protections conferred by this Stipulation and Order cover not only

13

Protected Material (as defined above), but also (1) any information copied or

14

extracted from Protected Material; (2) all copies, excerpts, summaries, or

15

compilations of Protected Material; and (3) any testimony, conversations, or

16

presentations by Parties or their Counsel that might reveal Protected Material.

17

However, the protections conferred by this Stipulated Protective Order do not

18

cover information that is in the public domain or becomes part of the public

19

domain through trial or otherwise.

20
21
22

STIPULATED PROTECTIVE ORDER - 4

1
2

4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

Basic Principles. A Receiving Party may use Protected Material

3

that is disclosed or produced by another Party or by a non-party in connection

4

with this case only for prosecuting, defending, or attempting to settle this

5

litigation. Such Protected Material may be disclosed only to the categories of

6

persons and under the conditions described in this Stipulated Protective Order.

7

When the litigation has been terminated, a Receiving Party must comply with

8

the provisions of section 10, below (FINAL DISPOSITION; TERMINATION

9

AND RETURN OF DOCUMENTS). Protected Material must be stored and

10

maintained by a Receiving Party at a location and in a secure manner that

11

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

12

Protective Order.

13

4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

14

otherwise ordered by the Court or permitted in writing by the Designating

15

Party, a Receiving Party may disclose any information or item designated

16

CONFIDENTIAL only to:

17

(a)

the Receiving Party’s Outside Counsel of record in this

18

action, as well as employees of said Counsel to whom it is reasonably necessary

19

to disclose the information for this litigation;

20
21
22

STIPULATED PROTECTIVE ORDER - 5

(b)

1

the named parties to this litigation and the officers, directors,

2

and employees (including House Counsel) of the Receiving Party to whom

3

disclosure is reasonably necessary for this litigation;
(c)

4

experts (as defined in this Stipulated Protective Order) of the

5

Receiving Party to whom disclosure is reasonably necessary for this litigation

6

and who have signed the “Agreement to Be Bound by Protective Order”

7

(Exhibit A);

8

(d)

the Court and its personnel;

9

(e)

court reporters and videographers, and their staffs, present at

10

any hearing, deposition, or trial who have signed the “Agreement to Be Bound

11

by Protective Order” (Exhibit A);

12

(f)

Professional Vendors to whom disclosure is reasonably

13

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

14

by Protective Order” (Exhibit A);

15

(g)

during their depositions, witnesses in the action to whom

16

disclosure is reasonably necessary and who have signed the “Agreement to Be

17

Bound by Protective Order” (Exhibit A). Pages of transcribed deposition

18

testimony or exhibits to depositions that reveal Protected Material must be

19

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

20

except as permitted under this Stipulated Protective Order.

21
22

STIPULATED PROTECTIVE ORDER - 6

(h)

1

any mediator or other third party engaged by the Parties and

2

who have signed the “Agreement to Be Bound by Protective Order” (Exhibit

3

A);
(j)

4

the author or recipient of a document containing the

5

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

6

the information.

7

4.3

8

Before filing confidential material or discussing or referencing such

9

material in court filings, the filing party shall confer with the Designating Party

Filing Protected Material.

10

to determine whether the Designating Party will remove the confidential

11

designation, whether the document can be redacted, or whether a motion to seal

12

or stipulation and proposed order is warranted. Without written permission from

13

the Designating Party or a court order secured after appropriate notice to all

14

interested persons, a Party may not file in the public record in this action any

15

Protected Material. A Party that seeks to file under seal any Protected Material

16

must comply with applicable law. If a Receiving Party’s request to file

17

Protected Material under seal pursuant is denied by the court, then the

18

Receiving Party may file the information in the public record unless otherwise

19

instructed by the court.

20
21
22

STIPULATED PROTECTIVE ORDER - 7

1
2
3
4

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

Protection.
Each party or non-party that designates information or items for

5

protection under this Stipulated Protective Order must use good faith efforts to

6

limit any such designation to specific material that qualifies under the

7

appropriate standards. A Designating Party must use good faith efforts

8

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

9

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

10

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

11

not swept unjustifiably within the ambit of this Stipulated Protective Order.

12

Mass, indiscriminate, or routinized designations are prohibited.

13

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

14

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

15

development process or to impose unnecessary expenses and burdens on other

16

parties), may expose the Designating Party to sanctions.

17

If it comes to a Party’s or a non-party’s attention that information or

18

items that it designated for protection do not qualify for protection, the Party or

19

non-party must promptly notify all other parties that it is withdrawing the

20

mistaken designation.

21
22

STIPULATED PROTECTIVE ORDER - 8

1

5.2

Manner and Timing of Designations. Except as otherwise provided

2

in this Stipulated Protective Order (see, e.g., second paragraph of section 5.2(a)

3

below), or as otherwise stipulated or ordered, material that qualifies for

4

protection under this Stipulated Protective Order must be clearly so designated

5

before the material is disclosed or produced. Producing Parties must designate

6

in conformity with this paragraph.

7

(a)

For information in documentary form (e.g., paper or

8

electronic documents and deposition exhibits, but excluding transcripts of

9

depositions or other pretrial or trial proceedings): the Producing Party must

10

affix the legend “CONFIDENTIAL” to each page that contains protected

11

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

12

protection, the Producing Party also must clearly identify the protected

13

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

14

non-party that makes original documents or materials available for inspection

15

need not designate them for protection until after the inspecting Party has

16

indicated which material it would like copied and produced. During the

17

inspection and before the designation, all of the material made available for

18

inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

19

identified the documents it wants copied and produced, the Producing Party

20

must determine which documents, or portions thereof, qualify for protection

21
22

STIPULATED PROTECTIVE ORDER - 9

1

under this Stipulated Protective Order, then, before producing the specified

2

documents, the Producing Party must affix the legend “CONFIDENTIAL” on

3

each page that contains Protected Material. If only a portion of the material on a

4

page qualifies for protection, the Producing Party also must clearly identify the

5

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

6

(b)

Testimony given in deposition or in other pretrial

7

proceedings: the Party or non-party offering or sponsoring the testimony must

8

identify on the record, during the deposition or other proceeding, all protected

9

testimony. When it is impractical to identify separately each portion of

10

testimony that is entitled to protection, and when it appears that substantial

11

portions of the testimony may qualify for protection, the Party or non-party that

12

sponsors, offers, or gives the testimony may invoke on the record (before the

13

deposition or proceeding is concluded) a right to have up to twenty (20) days to

14

identify the specific portions of the testimony as to which protection is sought.

15

Only those portions of the testimony that are appropriately designated for

16

protection within the twenty (20) days shall be covered by the provisions of this

17

Stipulated Protective Order.

18
19

Transcript pages containing Protected Material must be separately bound
by the court reporter, who must affix to the top of each such page the legend

20
21
22

STIPULATED PROTECTIVE ORDER - 10

1

“CONFIDENTIAL,” as instructed by the Party or nonparty offering or

2

sponsoring the witness or presenting the testimony.
(c)

3

Information produced in some form other than documentary,

4

and for any other tangible items: the Producing Party must affix in a prominent

5

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

6

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

7

the information or item warrant protection, the Producing Party, to the extent

8

practicable, shall identify the protected portion(s).
5.3

9

Inadvertent Failures to Designate. If timely corrected, an

10

inadvertent failure to designate qualified information or items as “Confidential”

11

does not, standing alone, waive the Designating Party’s right to secure

12

protection under this Stipulated Protective Order for such material. If material is

13

appropriately designated as “Confidential” after the material was initially

14

produced, the Receiving Party, on timely notification of the designation, must

15

make reasonable efforts to assure that the material is treated in accordance with

16

the provisions of this Stipulated Protective Order.

17

6.

18

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party may challenge a designation of

19

confidentiality at any time. Unless a prompt challenge to a Designating Party’s

20

confidentiality designation is necessary to avoid foreseeable, substantial

21
22

STIPULATED PROTECTIVE ORDER - 11

1

unfairness, unnecessary economic burdens, or a later significant disruption or

2

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

3

confidentiality designation by electing not to mount a challenge promptly after

4

the original designation is disclosed.

5

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

6

resolution process by providing written notice of each designation it is

7

challenging and describing the basis for each challenge. The parties shall

8

attempt to resolve each challenge in good faith and must begin the process by

9

conferring directly (in voice to voice dialogue; other forms of communication

10

are not sufficient) within 14 days of the date of service of notice. In conferring,

11

the Challenging Party must explain the basis for its belief that the

12

confidentiality designation was not proper and must give the Designating Party

13

an opportunity to review the designated material, to reconsider the

14

circumstances, and, if no change in designation is offered, to explain the basis

15

for the chosen designation. A challenging Party may proceed to the next stage

16

of the challenge process only if it has engaged in this meet and confer process

17

first or establishes that the Designating Party is unwilling to participate in the

18

meet and confer process in a timely manner. The parties must attempt to resolve

19

any dispute regarding confidential designations without court involvement. Any

20

motion regarding confidential designations or for a protective order must

21
22

STIPULATED PROTECTIVE ORDER - 12

1

include a certification, in the motion or in a declaration or affidavit, that the

2

movant has engaged in a good faith meet and confer conference with other

3

affected parties in an effort to resolve the dispute without court action. The

4

certification must list the date, manner, and participants to the conference.

5

6.3

Judicial Intervention. If the parties cannot resolve a challenge

6

without court intervention, the Challenging Party may issue a written notice to

7

the Designating Party providing with specificity those materials as to which it

8

still challenges the confidential designation. With 21 days of such notice, the

9

Designating Party may file and serve a motion to retain confidentiality under

10

Local Civil Rule 7. Each such motion must be accompanied by a competent

11

declaration affirming that the movant has complied with the meet and confer

12

requirements imposed in the preceding paragraph. Failure by the Designating

13

Party to make such a motion including the required declaration within 21 days

14

shall automatically waive the confidentiality designation for each challenged

15

designation. In addition, the Challenging Party may file a motion challenging a

16

confidentiality designation at any time if there is good cause for doing so,

17

including a challenge to the designation of a deposition transcript or any

18

portions thereof. Any motion brought pursuant to this provision must be

19

accompanied by a competent declaration affirming that the movant has

20
21
22

STIPULATED PROTECTIVE ORDER - 13

1

complied with the meet and confer requirements imposed by the preceding

2

paragraph.

3

The burden of persuasion in any such challenge proceeding shall be on

4

the Designating Party. Frivolous challenges, and those made for an improper

5

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

6

parties) may expose the Challenging Party to sanctions. Unless the Designating

7

Party has waived the confidentiality designation either in writing or by failing

8

to file a motion to retain confidentiality as described above, all parties shall

9

continue to afford the material in question the level of protection to which it is

10

entitled under the Producing Party’s designation until the court rules on the

11

challenge.

12

7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

13
If a Receiving Party is served with a subpoena or an order issued in other
14
litigation or proceedings that compels disclosure of any information or items
15

designated in this action as “CONFIDENTIAL,” the Receiving Party must:

16
(a)

promptly, and in no event more than three (3) court days

17
after receiving the subpoena or order, notify the designating party in writing
18
(e.g. via email, facsimile, or hand delivery). Such notification must include a
19
copy of the subpoena or order;
20
21
22

STIPULATED PROTECTIVE ORDER - 14

(b)

1

promptly notify in writing the Party who caused the

2

subpoena or order to issue in the other litigation or proceeding that some or all

3

of the material covered by the subpoena or order is subject to this Stipulated

4

Protective Order. Such notification shall include a copy of this Stipulated

5

Protective Order; and
(c)

6

cooperate with respect to all reasonable procedures sought to

7

be pursued by the Designating Party whose confidential material may be

8

affected.

9

If the Designating Party timely seeks a protective order, the Party served

10

with the subpoena or court order shall not produce any information designated

11

in this action as “CONFIDENTIAL” before a determination by the court from

12

which the subpoena or order issued, unless the Party has obtained the

13

Designating Party’s permission. The Designating Party shall bear the burdens

14

and the expenses of seeking protection in that court of its confidential material –

15

and nothing in these provisions should be construed as authorizing or

16

encouraging a Receiving Party in this action to disobey a lawful directive from

17

another court.

18

8.

19
20

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has

disclosed Protected Material to any person or in any circumstance not

21
22

STIPULATED PROTECTIVE ORDER - 15

1

authorized under this Stipulated Protective Order, the Receiving Party must

2

immediately (a) notify in writing the Designating Party of the unauthorized

3

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

4

Protected Material, (c) inform the person or persons to whom unauthorized

5

disclosures were made of all the terms of this Stipulated Protective Order, and

6

(d) request that such person or persons execute the “Acknowledgment and

7

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

8

9.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

9
When a Producing Party gives notice to Receiving Parties that certain
10
inadvertently produced material is subject to a claim of privilege or other
11
protection, the obligations of the Receiving Parties are those set forth in Federal
12
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
13
whatever procedure may be established in an order or agreement that provides
14
for production without prior privilege review.
15
10.

FINAL DISPOSITION; RETURN OF DOCUMENTS

16
Unless otherwise ordered or agreed in writing by the Producing Party,
17
within 60 days after the termination of this action, including all appeals, each
18
Receiving Party must return all Protected Material to the Producing Party. As
19

used in this subdivision, “all Protected Material” includes all copies, abstracts,

20
compilations, summaries or any other form of reproducing or capturing any of
21
22

STIPULATED PROTECTIVE ORDER - 16

1

the Protected Material. With permission in writing from the Designating Party,

2

the Receiving Party may destroy some or all of the Protected Material instead of

3

returning it. Whether the Protected Material is returned or destroyed, the

4

Receiving Party must submit a written certification to the Producing Party (and,

5

if not the same person or entity, to the Designating Party) by the sixty day

6

deadline that identifies (by category, where appropriate) all the Protected

7

Material that was returned or destroyed and that affirms that the Receiving

8

Party has not retained any copies, abstracts, compilations, summaries or other

9

forms of reproducing or capturing any of the Protected Material.

10

Notwithstanding this provision, Counsel are entitled to retain an archival copy

11

of all pleadings, motion papers, transcripts, legal memoranda, correspondence,

12

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

13

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

14

Material. Any such archival copies that contain or constitute Protected Material

15

remain subject to this Stipulated Protective Order as set forth herein.

16

Even after the termination of this litigation, the confidentiality

17

obligations imposed by this Stipulated Protective Order shall remain in effect

18

until a Designating Party agrees otherwise in writing or a court order otherwise

19

directs.

20
21
22

STIPULATED PROTECTIVE ORDER - 17

1
2

11.

MISCELLANEOUS
11.1. Right to Further Relief. Nothing in this Stipulated Protective Order

3

abridges the right of any person to seek its modification by the Court in the

4

future.

5

11.2. Right to Assert Other Objections. By stipulating to the entry of this

6

Stipulated Protective Order no Party waives any right it otherwise would have

7

to object to disclosing or producing any information or item on any ground not

8

addressed in this Stipulated Protective Order. Similarly, no Party waives any

9

right to object on any ground to use in evidence of any of the material covered

10

by this Stipulated Protective Order.

11

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

12

DATED this 6th day of September, 2018.

13

TERRELL MARSHALL LAW
GROUP PLLC

FREY BUCK, P.S.

By: /s/ Beth E. Terrell, WSBA #26759
Beth E. Terrell, WSBA #26759
Blythe H. Chandler, WSBA #43387
Brittany J. Glass, WSBA #52095
Attorneys for Plaintiff
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

By: /s/ Ted Buck, WSBA #22029
Ted Buck, WSBA #22029
Attorneys for Defendants
1200 Fifth Avenue, Suite 1900
Seattle Washington 98101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

14
15
16
17
18
19
20
21
22

STIPULATED PROTECTIVE ORDER - 18

1
2
3
4
5
6

Clay M. Gatens, WSBA #34102
Devon A. Gray, WSBA #51485
Attorneys for Plaintiff
JEFFERS, DANIELSON, SONN
& AYLWARD, P.C.
2600 Chester Kimm Road
P.O. Box 1688
Wenatchee, Washington 98807-1688
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

Steven A. Goldfarb,
Admitted Pro Hac Vice
Erica L. Calderas,
Admitted Pro Hac Vice
Attorneys for Defendants
HAHN LOESER & PARKS, LLP
200 Public Square, Suite 2800
Cleveland, Ohio 44114
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

7
8
9
10
11
12

Michael D. Daudt, WSBA #25690
Attorneys for Plaintiff
DAUDT LAW PLLC
2200 Sixth Avenue, Suite 1250
Seattle, Washington 98121-1280
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
PURSUANT TO STIPULATION, IT IS HEREBY ORDERED.

13
DATED September 6, 2018.
14
15
16

THOMAS O. RICE
Chief United States District Judge

17
18
19
20
21
22

STIPULATED PROTECTIVE ORDER - 19

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
5
under penalty of perjury that I have read in its entirety and understand the
6
Stipulated Protective Order that was issued by the United States District Court for
7
the Eastern District of Washington on [date] in the case of Britton v. ServiceLink
8
Field Service, LLC (No. 2:18-cv-00041-TOR). I agree to comply with and to be
9
bound by all the terms of the Stipulated Protective Order and I understand and
10
acknowledge that failure to so comply could expose me to sanctions and
11
punishment in the nature of contempt. I solemnly promise that I will not disclose in
12
any manner any information or item that is subject to the Stipulated Protective
13
Order to any person or entity except in strict compliance with the provisions of the
14
Stipulated Protective Order.
15
I further agree to submit to the jurisdiction of the United States District
16
Court for the Eastern District of Washington for the purpose of enforcing the terms
17
of the Stipulated Protective Order, even if such enforcement proceedings occur
18
//
19
//
20
//
21
22

STIPULATED PROTECTIVE ORDER - 20

1

after termination of the action.

2

Date:
City and State where sworn and signed:
Printed name:
Signature:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

STIPULATED PROTECTIVE ORDER - 21