Kater v. Churchill Downs Incorporated

Filing 213

ORDER granting 192 Motion for Protective Order; signed by Judge Ronald B. Leighton.(DN)

Case 2:15-cv-00612-RBL Document 213 Filed 05/05/20 Page 1 of 4

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHERYL KATER and SUZIE KELLY, individually
and on behalf of all others similarly situated,

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Plaintiffs,
v.

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CHURCHILL DOWNS INCORPORATED, a
Kentucky corporation, and BIG FISH GAMES,
INC., a Washington corporation,

CASE NO. C15-0612-RBL
ORDER ON MOTION FOR
ENTRY OF MODEL
PROTECTIVE ORDER
AND AGREEMENT FOR
DISCOVERY OF ESI
DKT. # 192

Defendants.
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CASE NO. C19-0199-RBL
MANASA THIMMEGOWDA, individually and on
behalf of all others similarly situated,

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Plaintiff,

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v.

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DKT. # 143

BIG FISH GAMES, INC., a Washington
corporation; ARISTOCRAT TECHNOLOGIES
INC., a Nevada corporation; ARISTOCRAT
LEISURE LIMITED, an Australian corporation; and
CHURCHILL DOWNS INCORPORATED, a
Kentucky corporation,

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Defendants.

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ORDER - 1

ORDER ON MOTION FOR
ENTRY OF MODEL
PROTECTIVE ORDER
AND AGREEMENT FOR
DISCOVERY OF ESI

Case 2:15-cv-00612-RBL Document 213 Filed 05/05/20 Page 2 of 4

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THIS MATTER is (unfortunately) before the Court on Plaintiffs’ Motions for Entry of

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Model Protective Order and Model Agreement re. Discovery of Electronically Stored

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Information. Kater: Dkt. # 192; Thimmegowda: Dkt. # 143. As has become a trend in these

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cases, the parties have found yet another thing to disagree on. While Plaintiffs advocate for entry

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of the Western District of Washington’s model order and agreement re. ESI, Defendants

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strenuously object.

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According to Plaintiffs, the parties have been negotiating an appropriate protective order

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and agreement for sixteen months, with Defendants consistently demanding nuanced provisions

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that would prejudice Plaintiffs. Plaintiffs assert that the parties are in deadlock and the easiest

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way forward would be to just enter the Western District’s model orders. Defendants retort that,

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during the course of negotiations, the parties agreed at various times to various manifestations of

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protective orders, but that Plaintiffs reneged on these agreements and ultimately abandoned the

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negotiations in favor of court intervention. Defendants also object to Plaintiffs’ failure to meet

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and confer in good faith before bringing these motions, as required by Local Rule 26(c)(1).

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Instead of entering the model orders, Defendants ask the Court to enter their orders, which they

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claim reflect the parties’ negotiations. Plaintiffs reply that Defendants fail to explain how the

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model orders prejudice them, while Defendants’ own revised versions actually will prejudice

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Plaintiffs by, for example, allowing Defendants to share Plaintiffs’ confidential information with

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non-appearing counsel. Both parties’ briefs are littered with accusations that the other party is

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being vexatious and unfair and deceptive. Defendants go so far as to ask for sanctions.

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Asking the Court to wade into a negotiation process that has been going on for over a

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year is not a good way to resolve this dispute. From the Court’s perspective, both parties have

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been unreasonable. Nonetheless, the Court agrees with Plaintiffs that discovery needs to get

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ORDER - 2

Case 2:15-cv-00612-RBL Document 213 Filed 05/05/20 Page 3 of 4

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moving in these cases, one of which was filed in 2015, and which Defendants have been

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attempting to drag out in any way possible.
Out of the two dueling proposals, the Court agrees with Plaintiffs that Defendants have

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failed to explain how the Western District’s model orders will prejudice them, even if they don’t

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fulfill every item on their wish list. Corley v. Google, Inc., No. 16-cv-00473, 2016 WL 3421402,

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at *2 (N.D. Cal. June 22, 2016) (rejecting defendants’ argument that the protective orders

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developed by the parties through their negotiations should be adopted instead of the model

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orders). In contrast, Plaintiffs identify several forms of potential prejudice in Defendants’

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modified orders. And Defendants’ insistence that Plaintiffs agreed to provisions from their orders

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at times in the past rings hollow in light of the parties’ failure to ever submit such stipulations to

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the Court. Plaintiffs should have met and conferred with Defendants before bringing this order,

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but the Court suspects that after months of disagreement such a meeting would likely have been

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futile.

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The model order is the model for a reason—it was “drafted and approved by the judges of

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this district based on their collective experience managing numerous cases with confidential

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material.” Minnis v. Washington, No. C11-5600 BHS, 2013 WL 3189051, at *2 (W.D. Wash.

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June 20, 2013). Entry of the model orders will not prevent the parties from stipulating to certain

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revisions or additions and filing more mutually-agreeable orders in the future. It will, however,

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provide a foundation that will allow discovery to move forward. If the parties reach an impasse

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ORDER - 3

Case 2:15-cv-00612-RBL Document 213 Filed 05/05/20 Page 4 of 4

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and Defendants feel that they cannot engage in certain discovery without further protection, they

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may file a motion to that effect. Plaintiffs’ Motions are GRANTED.

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IT IS SO ORDERED.

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Dated this 5th day of May, 2020.

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A

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Ronald B. Leighton
United States District Judge

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ORDER - 4