Davis v. Washington State Department of Social and Health Services et al

Filing 11

PROTECTIVE ORDER; ECF No. 9 granted. Signed by Judge Salvador Mendoza, Jr. (PL, Case Administrator)

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

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Aug 23, 2018
SEAN F. MCAVOY, CLERK

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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BARBARA DAVIS, as Personal
Representative of the Estate of G.B.,
deceased,

No. 2:18-CV-00194-SMJ

PROTECTIVE ORDER

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Plaintiff,
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v.
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WASHINGTON STATE
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES; TOM STOKES,
individually and in his official capacity,
and the marital community comprised
thereof; JEREMY KIRKLAND,
individually and in his official capacity
and the marital community comprised
thereof; JANE DOE STOKES, and the
marital community comprised thereof;
and JANE DOE KIRKLAND, and the
marital community comprised thereof,
Defendants.

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Before the Court, without oral argument, is Defendants’ unopposed Motion
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for Protective Order, ECF No. 9. Having reviewed the pleadings and the file in this
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matter, the Court is fully informed and finds good cause to grant the motion.
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Accordingly, IT IS HEREBY ORDERED:
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PROTECTIVE ORDER - 1

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GRANTED. The Court hereby enters the following Protective Order.

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Defendants’ unopposed Motion for Protective Order, ECF No. 9, is

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PURPOSES AND LIMITATIONS. Discovery in this action is likely

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to involve production of confidential, proprietary, or private

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information for which special protection may be warranted.

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Accordingly, the Court enters this Protective Order. The parties

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acknowledge that this Protective Order is consistent with Federal Rule

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of Civil Procedure 26(c). It does not confer blanket protection on all

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disclosures or responses to discovery; the protection it affords from

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public disclosure and use extends only to the limited information or

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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

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confidential information under seal.

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3.

for a protective order as required by Rule 26(c)(1).

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CONFERENCE OF PARTIES. The parties conferred about the need

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NEED FOR PRODUCTION. The parties’ need for production of

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privileged and confidential information and records outweighs any

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reason for maintaining the privacy and confidentiality of those records.

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5.

“CONFIDENTIAL” MATERIAL. “Confidential” material shall

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include the following documents and tangible things produced or

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otherwise exchanged:

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A.

Department of Social and Health Services (DSHS) and

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Department of Children, Youth, and Families (DCYF) MODIS,

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FamLink and AX files of G.B.’s biological parents;

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B.

Children’s Administration files of G.B., a minor;

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C.

Children’s Administration files of G.B.’s minor brother, S.B.;

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D.

Children’s Administration files of G.B.’s minor half-sister, D.B.;

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E.

Children’s Administration files of Cynthia and Ian Khaleel;

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F.

DSHS and DCYF files of Three Bears Educare;

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G.

Licensing files of various foster parents, containing records of
adults and minors not parties to this case;

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H.

Files for foster homes where G.B. resided;

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I.

Emails related to this case;

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J.

Former DSHS employee Heidi Kaas’ personnel file; and

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K.

Student educational records produced by Riverside School
District.

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6.

Defendants shall produce copies of the above-listed confidential
materials without redacting the following:

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A.

The names and personal information, to include medical,

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psychological, alcohol and chemical dependency treatment, sex

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offender status, and any related Child Protective Services (CPS)

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referrals and/or law enforcement contacts of the following:

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i.

G.B.;

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ii.

G.B.’s biological parents;

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iii.

G.B.’s minor brother, S.B;

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iv.

G.B.’s minor half-sister, D.J.;

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v.

D.J.’s biological parents;

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vi.

G.B.’s, S.B.’s, and D.J.’s foster parents;

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vii.

Barbara Davis;

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viii.

Cynthia Khaleel;

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ix.

Ian Khaleel;

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Cynthia Khaleel’s biological children (D.K., L.K., and
L.P.); and

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xi.

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L.P.’s biological father.

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B.

The names of mandatory reporters listed in CPS referrals.

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C.

Heidi Kaas’ personnel file, other than personal information (social

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security number, financial information, personal phone number,

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PROTECTIVE ORDER - 4

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and personal email address) redacted pursuant to Revised Code of

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Washington (RCW) section 42.56.250.

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A privilege log shall be included in all productions noting documents

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redacted or withheld and the reasons therefore.

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The above-listed records shall be redacted consistent with RCW chapter

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42.56, other applicable statutes, and federal rules, with redactions to

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include but not be limited to all social security numbers, driver license

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numbers, and financial account information; and information and

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records covered by attorney-client privilege or attorney work product.

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8.

Defendants shall produce the educational records of G.B. and his

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siblings, without any redactions. If a party requests the educational

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records of any other student, those records shall be redacted in the same

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manner as set forth in Paragraph 6 above.

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9.

SCOPE. The protections conferred by this Protective Order cover not

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only confidential material as defined above, but also (a) any

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information copied or extracted from confidential material; (b) all

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copies, excerpts, summaries, or compilations of confidential material;

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and (c) any testimony, conversations, or presentations by parties or

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their counsel that might reveal confidential material. However, the

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protections conferred by this Protective Order do not cover information

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

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through trial or otherwise.

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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL.
A.

Basic Principles. A receiving party may use confidential

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material disclosed or produced by another party or by a non-

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party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Confidential

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material may be disclosed only to the categories of persons and

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under the conditions described in this Protective Order.

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Confidential material must be stored and maintained by a

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receiving party at a location and in a secure manner that ensures

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that access is limited to the persons authorized under this

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Protective Order.

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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

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designating party, a receiving party may disclose any

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confidential material only to:

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i.

the receiving party’s counsel of record in this action, as

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well as employees of counsel to whom it is reasonably

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necessary to disclose the information for this litigation;

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ii.

the officers, directors, and employees (including in-house

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counsel) of the receiving party to whom disclosure is

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reasonably necessary for this litigation, unless the parties

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agree that a particular document or material produced is

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for attorneys’ eyes only and is so designated;

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iii.

experts and consultants to whom disclosure is reasonably

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necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound,”

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attached as Exhibit A;

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iv.

staff;

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the Court, court personnel, and court reporters and their

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copy or imaging services retained by counsel to assist in

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the duplication of confidential material, provided that

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counsel for the party retaining the copy or imaging

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service instructs the service not to disclose any

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confidential material to third parties and to immediately

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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 reasonably necessary and who have signed

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the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the designating

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party or ordered by the Court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal

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confidential material must be separately bound by the

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Court reporter and may not be disclosed to anyone except

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as permitted under this Protective Order;
vii.

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the author or recipient of a document containing the
information or a custodian or other person who otherwise

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possessed or knew the information.

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C.

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Filing Confidential Material. Before filing confidential material

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or discussing or referencing such material in court filings, the

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filing party shall confer with the designating party to determine

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whether the designating party shall remove the confidential

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designation, whether the document can be redacted, or whether

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a motion to seal or stipulation and proposed order is warranted.

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DESIGNATING PROTECTED MATERIAL.
A.

Exercise of Restraint and Care in Designating Material for

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Protection. Each party or non-party that designates information

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or items for protection under this Protective Order must take

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care to limit any such designation to specific material that

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qualifies under the appropriate standards. The designating party

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must designate for protection only those parts of material,

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documents, items, or oral or written communications that

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

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or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Protective Order.

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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

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been made for an improper purpose (e.g., to unnecessarily

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encumber or delay the case development process or to impose

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unnecessary expenses and burdens on other parties) expose the

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designating party to sanctions. If it comes to a designating

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party’s attention that information or items that it designated for

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protection do not qualify for protection, the designating party

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must promptly notify all other parties that it is withdrawing the

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mistaken designation.

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B.

Manner and Timing of Designations. Except as otherwise

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provided in this Protective Order or as otherwise stipulated or

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ordered, disclosure or discovery material that qualifies for

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protection under this Protective Order must be clearly so

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designated before or when the material is disclosed or produced.

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C.

Information in Documentary Form: For paper or electronic

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documents and deposition exhibits—excluding transcripts of

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depositions or other pretrial or trial proceedings—the

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designating party must affix the word “CONFIDENTIAL” to

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each page that contains confidential material. If only a portion

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

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producing party also must clearly identify the protected portions
(e.g., by making appropriate markings in the margins).

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D.

Testimony Given in Deposition or in Other Pretrial or Trial

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Proceedings. The parties must identify on the record, during the

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deposition, hearing, or other proceeding, all protected

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testimony, without prejudice to their right to so designate other

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testimony after reviewing the transcript. Any party or non-party

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may, within fifteen days after receiving a deposition transcript,

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designate portions of the transcript, or exhibits thereto, as

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confidential.

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E.

Other Tangible Items. The producing party must affix in a
prominent place on the exterior of the container or containers in

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which

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

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information or item warrant protection, the producing party, to

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the extent practicable, shall identify the protected portions.
F.

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the information

or

item is

stored

the

word

Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items

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does not, standing alone, waive the designating party’s right to

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secure protection under this Protective Order for such material.

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Upon timely correction of a designation, the receiving party

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must make reasonable efforts to ensure that the material is

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treated in accordance with the provisions of this Protective

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Order.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS.
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

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challenge to a designating party’s confidentiality designation is

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necessary to

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unnecessary economic burdens, or a significant disruption or

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

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PROTECTIVE ORDER - 11

avoid

foreseeable,

substantial

unfairness,

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challenge a confidentiality designation by electing not to mount

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a challenge promptly after the original designation is disclosed.

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B.

Meet and Confer. The parties must make every attempt to

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resolve any dispute regarding confidential designations without

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court involvement. Any motion regarding confidential

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designations or for a protective order must include a

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

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the movant has engaged in a good faith meet and confer

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conference with other affected parties in an effort to resolve the

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

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

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to confer requires a face-to-face meeting or a telephone

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conference.

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C.

Judicial Intervention. If the parties cannot resolve a challenge

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without court intervention, the designating party may file and

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serve a motion to retain confidentiality. The burden of

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persuasion in any such motion shall be on the designating party.

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Frivolous challenges, and those made for an improper purpose

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

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other parties) may expose the challenging party to sanctions. All

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parties shall continue to maintain the material in question as

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confidential until the Court rules on the challenge.

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PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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PRODUCED IN OTHER LITIGATION. If a party is served with a

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subpoena or a court order issued in other litigation that compels

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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 the subpoena or court order;

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B.

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promptly notify in writing the party who caused the subpoena or

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

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material covered by the subpoena or order is subject to this

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Protective Order. Such notification shall include a copy of this

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Protective Order; and
C.

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cooperate with respect to all reasonable procedures sought to be

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pursued by the designating party whose confidential material

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may be affected.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL.

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

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disclosed confidential material to any person or in any circumstance

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not authorized under this Protective Order, the receiving party must

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immediately (a) notify in writing the designating party of the

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

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

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persons to whom unauthorized disclosures were made of all the terms

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of this Protective Order, and (d) request that such person or persons

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execute the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A).

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15.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

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OTHERWISE PROTECTED MATERIAL. When a producing party

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gives notice to receiving parties that certain inadvertently produced

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

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obligations of the receiving parties are those set forth in Rule

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

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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

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confer on an appropriate non-waiver order under Federal Rule of

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Evidence 502.

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16.

NON TERMINATION AND RETURN OF DOCUMENTS. Within
60 days after the termination of this action, including all appeals, each

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receiving party must return all confidential material to the producing

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party, including all copies, extracts and summaries thereof.

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Alternatively, the parties may agree upon appropriate methods of

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destruction. Notwithstanding this provision, counsel are entitled to

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retain one archival copy of all documents filed with the Court, trial,

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deposition, and hearing transcripts, correspondence, deposition and

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

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expert work product, even if such materials contain confidential

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material. The confidentiality obligations imposed by this Protective

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Order shall remain in effect until a designating party agrees otherwise

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in writing or a court orders otherwise.

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A copy of this Protective Order shall accompany each copy of

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information or records protected by this Protective Order released to any

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parties’ experts. No attorney or expert shall disclose any information

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gained or derived from the aforementioned information or records to

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anyone without further order of the Court unless the person to whom the

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information is disclosed is otherwise entitled to obtain said information

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pursuant to this Protective Order or to statutory exemptions from

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confidentiality.

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This Protective Order shall remain in full force and effect until such time

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as the Court modifies its terms or releases the parties from its provisions.

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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and

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provide copies to all counsel.
DATED this 23rd day of August 2018.

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_________________________
SALVADOR MENDOZA, JR.
United States District Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, __________________________________________________ [print full name],

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of ________________________________________________ [print full address],

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

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

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of Washington on _________________________________, 2018, in the case of

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Barbara Davis, as Personal Representative for the Estate of G.B., deceased v.

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Washington State Department of Social and Health Services, et al., case number

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2:18-cv-00194-SMJ. I agree to comply with and to be bound by all the terms of this

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Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is subject

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to this Protective Order to any person or entity except in strict compliance with the

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provisions of this Order. I further agree to submit to the jurisdiction of the United

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States District Court for the Eastern District of Washington for the purpose of

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enforcing the terms of this Protective Order, even if such enforcement proceedings

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occur after termination of this action.

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//

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//

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Date: _________________________________

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City and state where sworn and signed: _________________________________

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Printed name: _________________________________

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Signature: _________________________________

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Q:\SMJ\Civil\2018\Davis v. Washington State DSHS et al-0194\Order Granting Defendants' Motion for Protective Order.docx

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