Nevada Star Resource et al v. Angrisano et al

Filing 87

PROTECTIVE ORDER by Judge Robert S. Lasnik. (TF)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NEVADA STAR RESOURCE CORP. (U.S.)
and PURE NICKEL, INC.,

No. 2:13-cv-00618-RSL

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Plaintiff,

STIPULATED PROTECTIVE ORDER

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v.
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ROBERT AGRISANO, MONTY D. MOORE,
SCOTT NICHOLSON, and MONTY L.
MOORE,
Defendant.

NOTED FOR:
December 5, 2013

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1.

PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary, or

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private information for which special protection may be warranted. Accordingly, the parties

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hereby stipulate to and petition the court to enter the following Stipulated Protective Order.

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The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer

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blanket protection on all 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 items that are entitled to

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confidential treatment under the applicable legal principles, and it does not presumptively

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entitle parties to file confidential information under seal.

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STIPULATED PROTECTIVE ORDER – 1

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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2.

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“Confidential” material shall include documents, tangible things, or deposition
testimony designated with the legend “Confidential” or in the manner described in paragraph
5, below. “Highly Confidential” material shall include documents, tangible things, or
deposition testimony designated with the legend “Highly Confidential” or in the manner
described in paragraph 5, below.
3.

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“CONFIDENTIAL” AND “HIGHLY CONFIDENTIAL” MATERIAL

SCOPE
The protections conferred by this agreement cover not only Confidential and Highly

Confidential material (as defined above), but also (1) any information copied or extracted
from Confidential or Highly Confidential material; (2) all copies, excerpts, summaries, or
compilations of Confidential or Highly Confidential material; and (3) any testimony,
conversations, or presentations by parties or their counsel that might reveal Confidential or
Highly Confidential material. However, the protections conferred by this agreement do not
cover information that is in the public domain or becomes part of the public domain through
trial or otherwise. This agreement applies to material and information produced in this action
both by parties and non-parties.
4.

ACCESS TO AND USE OF CONFIDENTIAL AND HIGHLY CONFIDENTIAL

MATERIAL
4.1

Basic Principles. A receiving party may use Confidential or Highly

Confidential material that is disclosed or produced by another party or by a non-party in
connection with this case only for prosecuting, defending, or attempting to settle this
litigation. Confidential and Highly Confidential material may be disclosed only to the
categories of persons and under the conditions described in this agreement. Confidential and
Highly Confidential material must be stored and maintained by a receiving party at a location

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STIPULATED PROTECTIVE ORDER – 2

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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and in a secure manner that ensures that access is limited to the persons authorized under this
agreement.

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4.2

ordered by the court or permitted in writing by the designating party, a receiving party may
disclose any Confidential material only to:

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(a) the receiving party’s counsel of record in this action, as well as employees
of counsel to whom it is reasonably necessary to disclose the information for this litigation;

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(b) the officers, directors, and employees (including in house counsel) of the
receiving party to whom disclosure is reasonably necessary for this litigation;

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

(c) experts and consultants to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
A);
(d) the court, court personnel, and court reporters and their staff;
(e) copy or imaging services retained by counsel to assist in the duplication of
confidential material, provided that counsel for the party retaining the copy or imaging service
instructs the service not to disclose any confidential material to third parties and to
immediately return all originals and copies of any confidential material;
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the court.
Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential
material must be separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this agreement;

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STIPULATED PROTECTIVE ORDER – 3

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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

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4.3

otherwise ordered by the court or permitted in writing by the designating party, a receiving
party may disclose any Highly Confidential material only to:

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(a) the receiving party’s counsel of record in this action, as well as employees
of counsel to whom it is reasonably necessary to disclose the information for this litigation;

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Disclosure of “HIGHLY CONFIDENTIAL” Information or Items. Unless

(b) experts and consultants to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
A);
(c) the court, court personnel, and court reporters and their staff;
(d) copy or imaging services retained by counsel to assist in the duplication of
confidential material, provided that counsel for the party retaining the copy or imaging service
instructs the service not to disclose any confidential material to third parties and to
immediately return all originals and copies of any confidential material;
(e) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the court.
Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential
material must be separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this agreement;
(f) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

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STIPULATED PROTECTIVE ORDER – 4

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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4.4

Filing Confidential Material. Before filing Confidential or Highly Confidential

material or discussing or referencing such material in court filings, the filing party shall confer
with the designating party 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. Local Civil Rule 5(g) sets forth the procedures
that must be followed and the standards that will be applied when a party seeks permission
from the court to file material under seal.
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 protection under this agreement
must take care to limit any such designation to specific material that qualifies under the
appropriate standards. The designating party must designate for protection only those parts of
material, documents, items, or oral or written communications that qualify, so that other
portions of the material, documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this agreement.
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
designated for protection do not qualify for protection, the designating party must promptly
notify all other parties that it is withdrawing the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in this

agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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STIPULATED PROTECTIVE ORDER – 5

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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ordered, disclosure or discovery material that qualifies for protection under this agreement
must be clearly so designated before or when the material is disclosed or produced.

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(a) Information in documentary form: (e.g., paper or electronic documents and
deposition exhibits, but excluding transcripts of depositions or other pretrial or trial
proceedings), the designating party must affix the word “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” to each page that contains confidential material. If only a portion or
portions of the material on a page qualifies for protection, the producing party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins).

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(b) Testimony given in deposition or in other pretrial or trial proceedings: the
parties must identify on the record, during the deposition, hearing, or other proceeding, all
protected testimony, without prejudice to their right to so designate other testimony after
reviewing the transcript. Any party or non-party may, within fifteen days after receiving a
deposition transcript, designate portions of the transcript, or exhibits thereto, as confidential.

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(c) Other tangible items: the producing party must affix in a prominent place
on the exterior of the container or containers in which the information or item is stored the
word “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If only a portion or portions of
the information or item warrant protection, the producing party, to the extent practicable, shall
identify the protected portion(s).
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

designate qualified information or items does not, standing alone, waive the designating
party’s right to secure protection under this agreement for such material. Upon timely
correction of a designation, the receiving party must make reasonable efforts to ensure that the
material is treated in accordance with the provisions of this agreement.

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STIPULATED PROTECTIVE ORDER – 6

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges; Notice. Any party or non-party may challenge a

designation of confidentiality at any time. If any party believes that any document or
information which is claimed to be Confidential or Highly Confidential does not contain
confidential or highly confidential material, it may contest the applicability of this Agreement
to such information by notifying the opposing party's counsel in writing and identifying the
information contested. Unless a prompt challenge to a designating party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2

Meet and Confer. The parties shall have seven (7) days after notice given

pursuant to paragraph 6.1 to meet and confer and attempt to resolve the issue. The parties
must make every attempt to resolve any dispute regarding 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
participants to the conference. A good faith effort to confer requires a face-to-face meeting or
a telephone conference.
6.3

Judicial Intervention. If the dispute is not resolved within seven (7) days after

notice given pursuant to paragraph 6.1, the party seeking the protection shall have seven (7)
additional days in which to make a motion for the protection of such document or
information. The document or information that is subject to a dispute as to whether it is

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STIPULATED PROTECTIVE ORDER – 7

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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Confidential or Highly Confidential, shall, until further order of the Court, be treated as
designated (Confidential or Highly Confidential) in accordance with the provisions of this
Agreement.
The burden of persuasion in any such motion shall be on the designating party. Frivolous
challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary
expenses and burdens on other parties) may expose the challenging party to sanctions.
7.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

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

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

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“CONFIDENTIAL” or “HIGHLY 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;
(b) promptly notify in writing the party who caused the subpoena or order to

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

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subject to this agreement. Such notification shall include a copy of this agreement; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by
the designating party whose confidential material may be affected.
7.1 Disclosure to Third Parties. The disclosure by the producing party of Confidential

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or Highly Confidential information or material, regardless of whether the information was so

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designated at the time of disclosure, shall not be deemed a waiver in whole or in part of a

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party's claim of confidentiality with respect to third parties, either as to the specific

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information disclosed or as to any other information relating thereto or on the same or related

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subject matter. Nothing in this Agreement shall be deemed to waive any claim of privilege or

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of work product immunity.

STIPULATED PROTECTIVE ORDER – 8

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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8.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed

Confidential or Highly Confidential material to any person or in any circumstance not
authorized under this agreement, the receiving party must immediately (a) notify in writing
the designating party of the unauthorized disclosures, (b) use its best efforts to retrieve all
unauthorized copies of the protected material, (c) inform the person or persons to whom
unauthorized disclosures were made of all the terms of this agreement, and (d) request that
such person or persons execute the “Acknowledgment and Agreement to Be Bound” that is
attached hereto as Exhibit A.
9.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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When a producing party gives notice to receiving parties that certain inadvertently

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

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order or agreement that provides for production without prior privilege review. Parties shall

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confer on an appropriate non-waiver order under Fed. R. Evid. 502.

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10.

EFFECTIVE DATE

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The parties agree to abide by the terms of this protective order beginning on the date

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of execution by the parties, even if such date is prior to execution and approval by the court.

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11.

NON TERMINATION AND RETURN OF DOCUMENTS

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

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receiving party must return all Confidential and Highly Confidential material to the producing

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

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agree upon appropriate methods of destruction.

STIPULATED PROTECTIVE ORDER – 9

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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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 or Highly Confidential material.

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The confidentiality obligations imposed by this agreement shall remain in effect until
a designating party agrees otherwise in writing or a court orders otherwise.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: 12/19/13

s/ Steven W. Fogg
Attorneys for Plaintiff

DATED: 12/19/13

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s/ David R. Ebel
Attorneys for Defendant

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: December 24, 2013
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A
Robert S. Lasnik

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United States District Judge 

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STIPULATED PROTECTIVE ORDER – 10

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of
_________________ [print or type full address], declare under penalty of perjury that I have
read in its entirety and understand the Stipulated Protective Order that was issued by the
United States District Court for the Western District of Washington on [date] in the case of
___________ [insert formal name of the case and the number and initials assigned to it by the
court]. I agree to comply with and to be bound by all the terms of this Stipulated Protective
Order and I understand and acknowledge that failure to so comply could expose me to
sanctions and punishment in the nature of contempt. I solemnly promise that I will not
disclose in any manner any information or item that is subject to this Stipulated Protective
Order to any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Western District of Washington for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this action.
Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
Signature: _________________________________

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STIPULATED PROTECTIVE ORDER – 11

CORR CRONIN MICHELSON
BAUMGARDNER & PREECE LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel [phone]
Fax [phone]