Cincinnati Insurance Company v. Harry Johnson Plumbing & Excavating Co Inc

Filing 31

ORDER APPROVING STIPULATED PROTECTIVE ORDER, granting 30 Motion for Protective Order. Signed by Senior Judge Lonny R. Suko. (LR, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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CINCINNATI INSURANCE
COMPANY,

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Plaintiff/Counterclaim Defendant,

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ORDER APPROVING STIPULATED
PROTECTIVE ORDER

v.

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Case No. 4:16-CV-5090-LRS

HARRY JOHNSON PLUMBING &
EXCAVATING CO., INC.,

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Defendant/Counterclaimant.

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BEFORE THE COURT is the parties' Stipulated Motion for Protective Order

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(ECF No. 30). The Motion contains the parties’ stipulation regarding information

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produced in discovery designated by the parties as confidential. The Motion (ECF
No. 30) is herein GRANTED and approved as proposed. ACCORDINGLY, IT IS
HEREBY ORDERED:
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PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

proprietary, or private information for which special protection may be warranted.
Accordingly, the parties hereby stipulate to and petition the court to enter the
following Stipulated Protective Order. The parties acknowledged that this
agreement does not confer blanket protection on all disclosures or responses to
discovery, the protection it affords from public disclosure and use extends only to

ORDER - 1

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

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

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confidential information under seal.

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2.

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CONFIDENTIAL MATERIAL
“Confidential Material” shall include, but not be limited to, the following

documents and tangible things produced or otherwise exchanged:
• Plaintiff’s documents containing business and proprietary information

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including, but not limited to, documents requested in defendant’s

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Requests for Production Nos. 4 and 5.

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(Note: The inclusion of any category of documents listed above does not

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constitute an admission by any party that those documents are either discoverable

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or relevant to the claims and defenses in the case.)

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3.

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SCOPE
The protections conferred by this agreement cover not only Confidential

Material (as defined above), but also (1) any information copied or extracted from
Confidential Material; (2) all copies, excerpts, summaries, or compilations of
Confidential Material; and (3) any testimony, conversations, or presentations by
parties or their counsel that might reveal Confidential Material. However, the
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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4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

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A receiving party may use Confidential Material that is disclosed or

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

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prosecuting, defending, or attempting to settle this litigation. Confidential Material

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ORDER - 2

Basic Principles

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

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described in this agreement. Confidential Material must be stored and maintained

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

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limited to the persons authorized under this agreement.

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4.2

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Unless otherwise ordered by the court or permitted in writing by the

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Disclosure of Confidential Material

designating party, a receiving party may disclose any Confidential Material only
to:
(a)

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

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the information for this litigation;

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(b)

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

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and/or reinsurers if applicable) of the receiving party to whom

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disclosure is reasonably necessary for this litigation, unless the parties

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agree that a particular document or material produced is for

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

experts and consultants to whom disclosure is reasonably necessary
for this litigation and who has signed the “Acknowledgment and

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Agreement to Be Bound (Exhibit A);

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(d)

the court, court personnel, and court reporters and their staff;

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(e)

copy or imaging services retained by counsel to assist in the

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duplication of Confidential Material, provided that counsel for the

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party retaining the copy or imaging service instructs the service not to

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disclose any Confidential Material to third parties and to immediately

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return all originals and copies of any Confidential Material;

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ORDER - 3

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(f)

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during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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designating 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 court reporter

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

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agreement;

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(g)

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the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the

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information.

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4.3

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Before filing Confidential Material or discussing or referencing such

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material in court filings, the filing party shall confer with the designating party to

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Filing Confidential Material

determine whether the designating party will remove the confidential designation,
whether the document can be redacted, or whether a motion to seal or stipulation
and proposed order is warranted.
5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint in Designating Material for Protection

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

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under this agreement must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. The designating party must

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

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

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ORDER - 4

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

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swept unjustifiably within the ambit of this agreement.

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Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber or delay the case development process or
to impose unnecessary expenses and burdens on other parties) expose the
designating party to sanctions.
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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5.2

Manner and Timing of Designations

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Except as otherwise provided in this agreement, or as otherwise stipulated or

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ordered, disclosure or discovery material that qualifies for protection under this

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

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or produced.

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(a)

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Information in documentary form: (e.g., paper or electronic
documents and deposition exhibits, but excluding transcripts of

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depositions or other pretrial or trial proceedings), the designating

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party must affix the word “CONFIDENTIAL” to each page that

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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

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

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appropriate markings in the margins).

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(b)

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Testimony given in deposition or in other pretrial or trial
proceedings: the parties must identify on the record, during the

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ORDER - 5

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deposition, hearing, or other proceeding, all protected testimony,

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without prejudice to their right to so designate other testimony after

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reviewing the transcript. Any party or non-party may, within fifteen

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days after receiving a deposition transcript, designate portions of the

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transcript, or exhibits thereto, as Confidential Material.

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(c)

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Other tangible items: the producing party must affix in a prominent
place on the exterior of the container or containers in which the

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information or item is stored the word “CONFIDENTIAL.” If only a

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portion or portions of the information or item warrant protection, the

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producing party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

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If timely corrected, an inadvertent failure to designate qualified information

Inadvertent Failures to Designate

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

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protection under this agreement for such material. Upon timely correction of a

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designation, the receiving party must make reasonable efforts to ensure that the
material is treated in accordance with the provisions of this agreement.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges

Any party or non-party may challenge a designation of confidentiality at any

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time. Unless a prompt challenge to a designating party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary

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economic burdens, or a significant disruption or delay of the litigation, a party does

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not waive its right to challenge a confidentiality designation by electing not to

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mount a challenge promptly after the original designation is disclosed.

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ORDER - 6

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6.2

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The parties must make every attempt to resolve any dispute regarding

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Meet and Confer

confidential designations without court involvement. Any motion regarding
confidential designations or for a protective order must include a certification, in
the motion or in a declaration or affidavit, that the movant has engaged in a good
faith meet and confer conference with other affected parties in an effort to resolve
the dispute without court action. The certification must list the date, manner, and

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

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meeting or a telephone conference.

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6.3

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If the parties cannot resolve a challenge without court intervention, the

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designating party may file and serve a motion to retain confidentiality. The burden

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

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challenges, and those made for an improper purpose (e.g., to harass or impose

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Judicial Intervention

unnecessary expenses and burdens on other parties) may expose the challenging
party to sanctions. All parties shall continue to maintain the material in question as
confidential until the court rules on the challenge.
7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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

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“CONFIDENTIAL,” that party must:

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(a)

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promptly notify the designating party in writing and include a copy of
the subpoena or court order;

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ORDER - 7

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(b)

promptly notify in writing the party who caused the subpoena or order

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

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by the subpoena or order is subject to this agreement. Such

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notification shall include a copy of this agreement; and

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(c)

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pursued by the designating party whose confidential material may be

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affected.

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cooperate with respect to all reasonable procedures sought to be

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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.
9.

When a producing party gives notice to receiving parties that certain

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INADVERTENT PRODUCTION

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

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protection, the obligations of the receiving parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever 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 confer on an

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appropriate non-waiver order under Fed. R. Evid. 502.

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10.

NON TERMINATION AND RETURN OF DOCUMENTS

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ORDER - 8

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

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each receiving party must return all Confidential Material to the producing party,

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

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agree upon appropriate methods of destruction.
Notwithstanding this provision, counsel are entitled to retain one archival
copy of all documents filed with the court, trial, deposition, and hearing transcripts,
correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain
Confidential Material.
The confidentiality obligations imposed by this agreement shall remain in

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effect until a designating party agrees otherwise in writing or a court orders

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otherwise.
IT IS SO ORDERED.

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The District Court Executive is directed to file this Order and provide copies

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to counsel.
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DATED this ____th day of February, 2017.

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s/Lonny R. Suko
____________________________________
LONNY R. SUKO
SENIOR U.S. DISTRICT COURT JUDGE

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ORDER - 9