Nalco Company LLC v. Dixon

Filing 9

PROTECTIVE ORDER - granting ECF Nos. 4 Motion for Stipulated Protective Order; and 6 Motion to Expedite. Signed by Judge Salvador Mendoza, Jr. (TR, Case Administrator)

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

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UNITED STATES DISTRICT COURT Aug 23, 2018
EASTERN DISTRICT OF WASHINGTON SEAN F. M AVOY, CLERK

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C

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NALCO COMPANY,

No.

2:18-CV-00203-SMJ

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Plaintiff,
PROTECTIVE ORDER

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v.
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DAVID DIXON,
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Defendant.
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Before the Court, without oral argument, is Plaintiff Nalco Company’s

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Unopposed Motion for a Stipulated Protective Order, ECF No. 4, and related motion

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to expedite, ECF No. 6. Upon being ordered by the Court to clarify some terms,

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ECF No. 7, the parties filed a Joint Supplemental Brief to Clarify the Stipulated

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Protective Order, ECF No. 8. Having reviewed the pleadings and the file in this

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matter, the Court is fully informed and finds that good cause exists to grant the

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motions.

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Accordingly, IT IS HEREBY ORDERED:

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1.

Plaintiff Nalco Company’s Unopposed Motion for a Stipulated

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Protective Order, ECF No. 4, and related motion to expedite, ECF No.

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6, are GRANTED.

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This Order shall govern the use, handling, and disclosure of all

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documents, testimony, or information produced or given in this action

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that are designated to be subject to this Order in accordance with the

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terms hereof.

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3.

Any party or non-party producing or filing documents or other

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materials in this action may designate such materials and the

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information contained therein subject to this Order by typing or

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stamping on the front of the document, or on the portion(s) of the

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document

which

confidential

treatment

is

designated,

“Confidential.”

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for

4.

If a party or non-party producing documents in this action (a

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“Producing Party”) believes in good faith that, despite the provisions

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of this Protective Order, there is a substantial risk of identifiable harm

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to the Producing Party if particular documents it designates as

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“Confidential” are disclosed to any of the Parties to this action or to

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non-parties, the Producing Party may designate those particular

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documents as “Confidential—Attorneys’ Eyes Only.”

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5.

The parties agree to designate Confidential Information on a good faith

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basis and not for purposes of improperly impeding a non-designating

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party’s access to information concerning the action. If any party

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believes that a document, information, or other material that has been

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designated Confidential Information does not contain Confidential

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Information, the party will notify the designating party of its objection

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to the “Confidential” or “Confidential—Attorneys’ Eyes Only”

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designation. The parties shall meet and confer in an attempt to reach

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an agreement regarding the confidential status of the document,

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material, and/or tangible item after the objecting party has provided

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written notice to the designating party of its objection.

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6.

If the Parties cannot resolve the objection within ten (10) business

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days after the time the notice is received, the designating party shall

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file within twenty (20) calendar days after counsel meet and confer a

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motion for a protective order prohibiting disclosure of any matter the

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objecting party asserts was improperly identified as a Confidential

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Information or Confidential—Attorneys’ Eyes Only. Any disputed

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documents, materials and/or tangible items must be treated as a

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Confidential Information or Confidential—Attorneys’ Eyes Only

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under this Protective Order until entry of a Court order ruling

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otherwise.

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7.

With respect to any depositions that involve a disclosure of
Confidential Information of a party to this action, such party shall have

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until twenty (20) days after receipt of the deposition transcript within

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which to inform all other parties that portions of the transcript are to

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be designated Confidential, which period may be extended by

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agreement of the parties. No such deposition transcript shall be

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disclosed to any individual other than the persons listed in Paragraph

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11(a)–(g) and Paragraph 12(a)–(e) (a “Qualified Person”) and the

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deponent during these twenty (20) days, and no individual attending

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such a deposition shall disclose the contents of the deposition to any

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individual other than to Qualified Persons during said twenty (20)

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days. Upon being informed that certain portions of a deposition are to

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be designated as Confidential, all parties shall immediately

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appropriately mark each copy of the transcript in its custody or control

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and limit disclosure of that transcript in accordance with this Order.

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8.

The procedures set forth in Paragraphs 5, 6, and 7 above shall apply to

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designations by non-parties, who may seek appropriate relief from the

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Court pursuant to this Order.

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9.

To the extent any motions, briefs, pleadings, deposition transcripts, or

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other papers to be filed with the Court incorporate documents or

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information subject to this Order, the party filing such papers shall

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designate such materials, or portions thereof, as “Confidential,” or

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“Confidential—Attorneys’ Eyes Only” and shall file them with the

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clerk under seal, provided, however, that a copy of such filing having

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the confidential information deleted therefrom may be made part of the

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public record.

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10.

All documents, transcripts, or other materials subject to this Order, and

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all information derived therefrom, shall not be used, directly or

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indirectly, by any person, for any business, commercial, or competitive

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purposes or for any purpose whatsoever other than solely for the

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preparation and trial of this action in accordance with the provisions of

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this Order. This includes, but is not limited to, all testimony given in a

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deposition, declaration, or otherwise, that refers, reflects, or otherwise

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discusses

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“Confidential—Attorneys’ Eyes Only.”

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11.

any

information

designated

“Confidential”

or

Except with the prior written consent of the individual or entity

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designating a document or portions of a document as “Confidential,”

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or pursuant to prior Order after notice, any document, transcript, or

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pleading given “Confidential” treatment under this Order, and any

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information contained in, or derived from any such materials

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(including but not limited to, all deposition testimony that refers to,

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reflects, or otherwise discusses any information designated

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“Confidential” hereunder) may not be disclosed other than in

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accordance with this Order and may not be disclosed to any person

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other than: (a) the Court and its officers; (b) court reporters, their staff,

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and professional vendors to whom disclosure is reasonably necessary

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for this litigation; (c) parties to this litigation; (d) counsel for the

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parties, whether retained outside counsel or in-house counsel and

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employees of counsel assigned to assist such counsel in the preparation

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of this litigation; (e) fact witnesses subject to a proffer to the Court or

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a stipulation of the parties that such witnesses need to know such

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information; (f) present or former employees of the Producing Party in

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connection with their depositions in this action (provided that no

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former employees shall be shown documents prepared after the date of

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their departure); and (g) experts specifically retained as consultants or

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expert witnesses in connection with this litigation.

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12.

Except with the prior written consent of the individual or entity

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designating a document or portions of a document as “Confidential—

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Attorneys’ Eyes Only,” or pursuant to prior Order after notice, any

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document, transcript, or pleading given “Confidential—Attorneys’

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Eyes Only” treatment under this Order, and any information contained

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in, or derived from any such materials (including, but not limited to,

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all deposition testimony that refers to, reflects, or otherwise discusses

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any information designated “Confidential—Attorneys’ Eyes Only”

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hereunder) may not be disclosed other than in accordance with this

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Order and may not be disclosed to any person other than: (a) a party’s

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retained outside counsel of record in this action, as well as employees

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of said outside counsel to whom it is reasonably necessary to disclose

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the information for this litigation and who have signed the

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“Declaration of Compliance” that is attached hereto as Exhibit A; (b)

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experts specifically retained as consultants or expert witnesses in

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connection with this litigation who have signed the “Declaration of

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Compliance” (Exhibit A); (c) the Court and its personnel; (d) court

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reporters, their staff, and professional vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the

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“Declaration of Compliance” (Exhibit A); and (e) the author of the

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document or the original source of the information.

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13.

Documents produced pursuant to this Order shall not be made

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available to any person designated in Subparagraphs 11(g) or 12(b)

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unless he or she shall have first read this Order, agreed to be bound by

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its terms, and signed the “Declaration of Compliance” (Exhibit A).

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All persons receiving any or all documents produced pursuant to this

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Order shall be advised of their confidential nature. All persons to

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whom confidential information and/or documents are disclosed are

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hereby enjoined from disclosing the same to any person except as

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provided herein, and are further enjoined from using the same except

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in the preparation for and trial of this action between the named parties

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thereto. No person receiving or reviewing such confidential

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documents, information, or transcript shall disseminate or disclose

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them to any person other than those described above in Paragraph 11

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and Paragraph 12 and for the purposes specified, and in no event, shall

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such person make any other use of such document or transcript.

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15.

Nothing in this Order shall prevent a party from using at trial any

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information or materials designated “Confidential” or “Confidential—

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Attorneys’ Eyes Only.”

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16.

This Order has been agreed to by the parties to facilitate discovery and

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the production of relevant evidence in this action. Neither the entry of

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this Order, nor the designation of any information, document, or the

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like as “Confidential,” or “Confidential—Attorneys’ Eyes Only” nor

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the failure to make such designation, shall constitute evidence with

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respect to any issue in this action.

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17.

The inadvertent disclosure or production of any information or

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document that is subject to an objection on the basis of attorney-client

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privilege or work-product protection will not be deemed to waive a

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party’s claim to its privileged or protected nature or estop that party or

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the privilege holder from designating the information or document as

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attorney-client privileged or subject to the work product doctrine at a

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later date. Any party receiving any such information or document shall

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return it upon request from the Producing Party. Upon receiving such

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a request as to specific information or documents, the receiving party

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shall return the information or documents to the Producing Party

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within five (5) business days, regardless of whether the receiving

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party agrees with the claim of privilege and/or work-product

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protection. Disclosure of information or documents by a receiving

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party prior to such later designation shall not in and of itself be deemed

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a violation of the provisions of this Order. This Order shall be

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governed by Federal Rule of Evidence 502(d).

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Within sixty (60) days after the final termination of this litigation, all

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documents, transcripts, or other materials afforded confidential

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treatment pursuant to this Order, including any extracts, summaries or

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compilations taken therefrom, but excluding any materials which in

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the good faith judgment of counsel are work product materials, shall

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be returned to the Producing Party.

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19.

In the event that any party to this litigation disagrees at any point in

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these proceedings with any designation made under this Protective

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Order, the parties shall first try to resolve such dispute in good faith on

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an informal basis. If the dispute cannot be resolved, the party objecting

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to the designation may seek appropriate relief from this Court. During

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the pendency of any challenge to the designation of a document or

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information, the designated document or information shall continue to

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be treated as “Confidential” or “Confidential—Attorneys’ Eyes Only”

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subject to the provisions of this Protective Order.

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20.

The procedures set forth shall apply to documents and information

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produced by non-parties and documents produced by Defendant David

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Dixon containing confidential proprietary information of non-parties,

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who may seek appropriate relief from the Court pursuant to this Order.

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21.

Nothing herein shall affect or restrict the rights of any party or non-

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party with respect to its own documents or to the information obtained

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or developed independently of documents, transcripts, and materials

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afforded confidential treatment pursuant to this Order.

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22.

The Court retains the right to allow disclosure of any subject covered

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by this stipulation or to modify this stipulation at any time in the

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interest of justice.

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

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DECLARATION OF COMPLIANCE

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I, _____________________________________, declare as follows:

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1.

My address is ________________________________________________.

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2.

My present employer is ________________________________________.

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3.

My present occupation or job description is _________________________.

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4.

I have received a copy of the Stipulated Protective Order entered in this action
on _______________, 20___.

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5.

I have carefully read and understand the provisions of this Stipulated
Protective Order.

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6.

I will comply with all provisions of this Stipulated Protective Order.

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7.

I will hold in confidence, and will not disclose to anyone not qualified under

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the Stipulated Protective Order, any information, documents or other

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materials produced subject to this Stipulated Protective Order.

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8.

to this Stipulated Protective Order only for purposes of this present action.

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I will use such information, documents or other materials produced subject

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Upon termination of this action, or upon request, I will return and deliver all

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information, documents or other materials produced subject to this Stipulated

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Protective Order, and all documents or things which I have prepared relating

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to the information, documents or other materials that are subject to the

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Stipulated Protective Order, to my counsel in this action, or to counsel for the

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party by whom I am employed or retained or from whom I received the

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documents.

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I hereby submit to the jurisdiction of this Court for the purposes of enforcing
the Stipulated Protective Order in this action.

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Q:\SMJ\Civil\2018\Nalco Company LLC v. Dixon-0203\Protective order.docx

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