Connolly v. Umpqua Bank et al

Filing 80

STIPULATED PROTECTIVE ORDER re parties' 79 Stipulation, by Judge Thomas S. Zilly. (SWT)

1
The Honorable Thomas S. Zilly
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

SARAH CONNOLLY, individually and on
behalf of all others similarly situated,

11

Case No. 2:15-cv-00517-TSZ

Plaintiff,
STIPULATED PROTECTIVE ORDER

12

vs.

13

UMPQUA BANK, and STERLING
INFOSYSTEMS, INC.,

14
Defendants.
15
16
17
18

1.

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

19
private information for which special protection may be warranted. Accordingly, the parties
20
hereby stipulate to and petition the court to enter the following stipulated protective order. The
21
parties acknowledge that this agreement is consistent with Local Rules W.D. Wash. LCR 26(c).
22
It does not confer blanket protection on all disclosures or responses to discovery, the protection
23
it affords from public disclosure and use extends only to the limited information or items that
24
are entitled to confidential treatment under the applicable legal principles, and it does not
25
presumptively entitle parties to file confidential information under seal.
26
27
STIPULATED PROTECTIVE ORDER - 1
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

2.

“Confidential” material shall include the following documents and tangible things

2
3

“CONFIDENTIAL” MATERIAL

produced or otherwise exchanged:

4
5

(a)

such as e-mail addresses, physical addresses, telephone numbers, and account numbers;

6
7

(b)

documents that contain information regarding Umpqua’s employees,

customers, or clients.

8
9

documents that contain financial or personal identifying information,

(c)

documents concerning Umpqua’s proprietary training, marketing,

guidelines, policies, procedures, software, databases, or business practices;

10

(d)

documents concerning Umpqua’s efforts to ensure its compliance with

11

federal and state laws and regulations regarding obtaining consumer reports, including credit

12

reports, background checks, and criminal history reports;

13
14

(e)

documents concerning Umpqua’s review and assessment of consumer

reports obtained as part of its application process;

15

(f)

Umpqua’s contracts with consumer reporting agencies; and

16

(g)

any other documents that contain confidential business information of

17

either party as determined and designated by such party.

18
19

The parties may propose modifying this list if necessary as discovery proceeds.
3.

SCOPE

20

The protections conferred by this agreement cover not only confidential material (as

21

defined above), but also (1) any information copied or extracted from confidential material;

22

(2) all copies, excerpts, summaries, or compilations of confidential material; and (3) any

23

testimony, conversations, or presentations by parties or their counsel that might reveal

24

confidential material. However, the protections conferred by this agreement do not cover

25

information that is in the public domain or becomes part of the public domain through trial or

26

otherwise.

27
STIPULATED PROTECTIVE ORDER - 2
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1
2

4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

Basic Principles. A receiving party may use confidential material that is

3

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

4

prosecuting, defending, or attempting to settle this litigation. Confidential material may be

5

disclosed only to the categories of persons and under the conditions described in this

6

agreement. Confidential material must be stored and maintained by a receiving party at a

7

location and in a secure manner that ensures that access is limited to the persons authorized

8

under this agreement.

9

4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

10

ordered by the court or permitted in writing by the designating party, a receiving party may

11

disclose any confidential material only to:

12

(a)

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

13

employees of counsel to whom it is reasonably necessary to disclose the information for this

14

litigation;

15
16

(b)

the officers, directors, and employees (including in-house counsel) of the

receiving party to whom disclosure is reasonably necessary for this litigation;

17

(c)

experts and consultants to whom disclosure is reasonably necessary for

18

this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

19

(Exhibit A);

20

(d)

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

21

(e)

copy or imaging services retained by counsel to assist in the duplication

22

of confidential material, provided that counsel for the party retaining the copy or imaging

23

service instructs the service not to disclose any confidential material to third parties and to

24

immediately return all originals and copies of any confidential material;

25
26

(f)

during their depositions, witnesses in the action to whom disclosure is

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

27
STIPULATED PROTECTIVE ORDER - 3
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the court.

2

Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential

3

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

4

except as permitted under this agreement;
(g)

5
6

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

custodian or other person who otherwise possessed or knew the information.
4.3

7

Filing Confidential Material. Before filing confidential material or discussing or

8

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

9

to determine whether the designating party will remove the confidential designation, whether

10

the document can be redacted, or whether a motion to seal or stipulation and proposed order is

11

warranted. Local Rules W.D. Wash. LCR 5(g) sets forth the procedures that must be followed

12

and the standards that will be applied when a party seeks permission from the court to file

13

material under seal.

14

5.

15

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

16

party or non-party that designates information or items for protection under this agreement

17

must take care to limit any such designation to specific material that qualifies under the

18

appropriate standards. The designating party must designate for protection only those parts of

19

material, documents, items, or oral or written communications that qualify, so that other

20

portions of the material, documents, items, or communications for which protection is not

21

warranted are not swept unjustifiably within the ambit of this agreement.

22

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

23

shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

24

unnecessarily encumber or delay the case development process or to impose unnecessary

25

expenses and burdens on other parties) expose the designating party to sanctions.

26
27
STIPULATED PROTECTIVE ORDER - 4
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

If it comes to a designating party’s attention that information or items that it designated

2

for protection do not qualify for protection, the designating party must promptly notify all other

3

parties that it is withdrawing the mistaken designation.

4

5.2

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

5

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

6

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

7

be clearly so designated before or when the material is disclosed or produced.
(a)

8
9

Information in documentary form: (e.g., paper or electronic documents

and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial

10

proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that

11

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

12

for protection, the producing party also must clearly identify the protected portion(s) (e.g., by

13

making appropriate markings in the margins).
(b)

14

Testimony given in deposition or in other pretrial or trial proceedings:

15

the parties must identify on the record, during the deposition, hearing, or other proceeding, all

16

protected testimony, without prejudice to their right to so designate other testimony after

17

reviewing the transcript. Any party or non-party may, within fifteen days after receiving a

18

deposition transcript, designate portions of the transcript, or exhibits thereto, as confidential.
(c)

19

Other tangible items: the producing party must affix in a prominent

20

place on the exterior of the container or containers in which the information or item is stored

21

the word “CONFIDENTIAL.” If only a portion or portions of the information or item warrant

22

protection, the producing party, to the extent practicable, shall identify the protected portion(s).

23

5.3

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

24

designate qualified information or items does not, standing alone, waive the designating party’s

25

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

26
27
STIPULATED PROTECTIVE ORDER - 5
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

designation, the receiving party must make reasonable efforts to ensure that the material is

2

treated in accordance with the provisions of this agreement.

3

6.

4

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

5

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

6

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

7

burdens, or a significant disruption or delay of the litigation, a party does not waive its right to

8

challenge a confidentiality designation by electing not to mount a challenge promptly after the

9

original designation is disclosed.

10

6.2

Meet and Confer. The parties must make every attempt to resolve any dispute

11

regarding confidential designations without court involvement. Any motion regarding

12

confidential designations or for a protective order must include a certification, in the motion or

13

in a declaration or affidavit, that the movant has engaged in a good faith meet and confer

14

conference with other affected parties in an effort to resolve the dispute without court action.

15

The certification must list the date, manner, and participants to the conference. A good faith

16

effort to confer requires a face-to-face meeting or a telephone conference.

17

6.3

Judicial Intervention. If the parties cannot resolve a challenge without court

18

intervention, the designating party may file and serve a motion to retain confidentiality. The

19

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

20

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

21

expenses and burdens on other parties) may expose the challenging party to sanctions. All

22

parties shall continue to maintain the material in question as confidential until the court rules on

23

the challenge.

24
25
26
27
STIPULATED PROTECTIVE ORDER - 6
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

7.

2

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

3
4
5

compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that party must:
(a)

6
7

10

(b)

13

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

16
17
18
19
20
21
22
23
24
25

cooperate with respect to all reasonable procedures sought to be pursued

by the designating party whose confidential material may be affected.
8.

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

14
15

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

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

11
12

promptly notify the designating party in writing and include a copy of

the subpoena or court order;

8
9

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

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.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a producing party gives notice to receiving parties that certain inadvertently

produced material is subject to a claim of privilege or other protection, the obligations of the
receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
provision is not intended to modify whatever procedure may be established in an e-discovery

26
27
STIPULATED PROTECTIVE ORDER - 7
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

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

2

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

3

10.

4

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

5

party must return all confidential material to the producing party, including all copies, extracts

6

and summaries thereof. Alternatively, the parties may agree upon appropriate methods of

7

destruction.

8
9

Notwithstanding this provision, counsel are entitled to retain one archival copy, which
may be kept in electronic form, of all documents filed with the court, trial, deposition, and

10

hearing transcripts, correspondence, deposition and trial exhibits, expert reports, attorney work

11

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

12

material.

13
14

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

15
16

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

17
18

DATED: March 24, 2017.

19

Davis Wright Tremaine LLP
Attorneys for Defendant Umpqua Bank
By /s/ James E. Howard
James E. Howard, WSBA #37259
Samantha Funk, WSBA #43341

20
21

1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

22
23
24
25
26
27
STIPULATED PROTECTIVE ORDER - 8
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

DATED: March 20, 2017.

Bailey & Glasser LLP
Attorneys for Plaintiff

2
By /s/ Elizabeth Ryan (wet signed)
Elizabeth Ryan (admitted pro hac vice)

3
4

99 High Street, Suite 304
Boston, Massachusetts 02110
T: [phone]
F: [phone]
Email: [e-mail]

5
6
7

11

Michael L. Murphy, WSBA #37481
BAILEY & GLASSER LLP
1054 31st Street, NW
Suite 230
Washington, DC 20007
T: [phone]
F: [phone]
Email: [e-mail]

12

And

13

16

Beth E. Terrell, WSBA #26759
TERRELL MARSHALL LAW GROUP
936 North 34th Street, Suite 300
Seattle, WA 98103
T: [phone]
F: [phone]
Email: [e-mail]

17

And

18

Nicholas F. Ortiz
LAW OFFICE OF NICHOLAS F. ORTIZ, P.C
99 High Street, Suite 304
Boston, Massachusetts 02110
T: [phone]
F: (617) 507--3456
Email: [e-mail]

8
9
10

14
15

19
20
21
22
23
24
25
26
27
STIPULATED PROTECTIVE ORDER - 9
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1

PURSUANT TO STIPULATION, IT IS SO ORDERED.

2
3
DATED: April 6, 2017.

A

4
5
6

Thomas S. Zilly
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
STIPULATED PROTECTIVE ORDER - 10
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax

1
2
3
4
5
6
7
8
9
10
11
12
13
14

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 Connolly v. Umpqua Bank, Case
No. 2:15-cv-00517. 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.

15
16
17

Date: ______________________________
City and State where sworn and signed: ______________________________

18
19
20

Printed name: ______________________________
Signature: ______________________________

21
22
23
24
25
26
27
STIPULATED PROTECTIVE ORDER - 11
(NO. 2:15-CV-00517)
NG-S40TG52V 4811-2975-8018v.2 0065460-000082

Davis Wright Tremaine LLP
L AW O F FICE S
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
206.622.3150 main • 206.757.7700 fax