Lyles v. Wells Fargo Bank, National Association

Filing 17

STIPULATED PROTECTIVE ORDER by U.S. District Judge John C Coughenour. (PM)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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GEOFFREY LYLES,

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CASE NO. C15-1716-JCC
Plaintiff,

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STIPULATED PROTECTIVE
ORDER

v.
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WELLS FARGO BANK, NATIONAL
ASSOCIATION,

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Defendant.

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1.

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 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
protection on all disclosures or responses to discovery, the protection it affords from public
disclosure and use extends only to the limited information or items that are entitled to
confidential treatment under the applicable legal principles, and it does not presumptively entitle
parties to file confidential information under seal.

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STIPULATED PROTECTIVE ORDER
PAGE - 1

1 2.

“CONFIDENTIAL” MATERIAL

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

3 produced or otherwise exchanged: (a) documents containing medical information or personal
4 identifying information; (b) proprietary agreements or policies of Defendants; (c) documents or
5 testimony containing sensitive financial or other business confidential information of any party;
6 (d) anything containing trade secrets related of Defendants or which are related to Defendants’
7 business practices; (e) documents containing personal information regarding non-parties.
8 3.

SCOPE

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

10 defined above), but also (1) any information copied or extracted from confidential material; (2)
11 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
12 conversations, or presentations by parties or their counsel that might reveal confidential material.
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However, the protections conferred by this agreement do not cover information that is in

14 the public domain or becomes part of the public domain through trial or otherwise.
15 4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

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

17 or produced by another party or by a non-party in connection with this case only for prosecuting,
18 defending, or attempting to settle this litigation. Confidential material may be disclosed only to
19 the categories of persons and under the conditions described in this agreement. Confidential
20 material must be stored and maintained by a receiving party at a location and in a secure manner
21 that ensures that access is limited to the persons authorized under this agreement.
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4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

23 ordered by the court or permitted in writing by the designating party, a receiving party may
24 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

26 to whom it is reasonably necessary to disclose the information for this litigation;

STIPULATED PROTECTIVE ORDER
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(b) the officers, directors, and employees (including in house counsel) of the receiving

2 party to whom disclosure is reasonably necessary for this litigation, unless the parties agree that
3 a particular document or material produced is for Attorney’s Eyes Only and is so designated;
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(c) experts and consultants to whom disclosure is reasonably necessary for this litigation

5 and who have signed the “Acknowledgment and 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 duplication of

8 confidential material, provided that counsel for the party retaining the copy or imaging service
9 instructs the service not to disclose any confidential material to third parties and to immediately
10 return all originals and copies of any confidential material;
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(f) during their depositions, witnesses in the action to whom disclosure is reasonably

12 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
13 A), unless otherwise agreed by the designating party or ordered by the court. Pages of
14 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
15 be separately bound by the court reporter and may not be disclosed to anyone except as permitted
16 under this agreement;
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(g) the author or recipient of a document containing the information or a custodian or

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

Filing Confidential Material. Before filing confidential material or discussing or

20 referencing such material in court filings, the filing party shall confer with the designating party
21 to determine whether the designating party will remove the confidential designation, whether the
22 document can be redacted, or whether a motion to seal or stipulation and proposed order is
23 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the
24 standards that will be applied when a party seeks permission from the court to file material under
25 seal.
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DESIGNATING PROTECTED MATERIAL

STIPULATED PROTECTIVE ORDER
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5.1

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

2 or non-party that designates information or items for protection under this agreement must take
3 care to limit any such designation to specific material that qualifies under the appropriate
4 standards. The designating party must designate for protection only those parts of material,
5 documents, items, or oral or written communications that qualify, so that other portions of the
6 material, documents, items, or communications for which protection is not warranted are not
7 swept unjustifiably within the ambit of this agreement.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

9 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
10 unnecessarily encumber or delay the case development process or to impose unnecessary
11 expenses and burdens on other parties) expose the designating party to sanctions.
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If it comes to a designating party’s attention that information or items that it designated

13 for protection do not qualify for protection, the designating party must promptly notify all other
14 parties that it is withdrawing the mistaken designation.
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5.2

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

16 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
17 ordered, disclosure or discovery material that qualifies for protection under this agreement must
18 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

20 exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the
21 designating party must affix the word “CONFIDENTIAL” to each page that contains
22 confidential material. If only a portion or portions of the material on a page qualifies for
23 protection, the producing party also must clearly identify the protected portion(s) (e.g., by
24 making appropriate markings in the margins).
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(b) Testimony given in deposition or in other pretrial or trial proceedings: the parties

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

STIPULATED PROTECTIVE ORDER
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1 testimony, without prejudice to their right to so designate other testimony after reviewing the
2 transcript. Any party or non-party may, within fifteen days after receiving a deposition transcript,
3 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

5 exterior of the container or containers in which the information or item is stored the word
6 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
7 the producing party, to the extent practicable, shall identify the protected portion(s).
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5.3

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

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

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6.1

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

15 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
16 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
17 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
18 challenge a confidentiality designation by electing not to mount a challenge promptly after the
19 original designation is disclosed.
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6.2

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

21 regarding confidential designations without court involvement. Any motion regarding
22 confidential designations or for a protective order must include a certification, in the motion or in
23 a declaration or affidavit, that the movant has engaged in a good faith meet and confer
24 conference with other affected parties in an effort to resolve the dispute without court action. The
25 certification must list the date, manner, and participants to the conference. A good faith effort to
26 confer requires a face-to-face meeting or a telephone conference.

STIPULATED PROTECTIVE ORDER
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6.3

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

2 intervention, the designating party may file and serve a motion to retain confidentiality under
3 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
4 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
5 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
6 other parties) may expose the challenging party to sanctions. All parties shall continue to
7 maintain the material in question as confidential until the court rules on the challenge.
8 7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

11 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
12 party must:
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(a) promptly notify the designating party in writing and include a copy of the subpoena or

14 court order;
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(b) promptly notify in writing the party who caused the subpoena or order to issue in the

16 other litigation that some or all of the material covered by the subpoena or order is subject to this
17 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

19 designating party whose confidential material may be affected.
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21 8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

23 material to any person or in any circumstance not authorized under this agreement, the receiving
24 party must immediately (a) notify in writing the designating party of the unauthorized
25 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material,
26 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of

STIPULATED PROTECTIVE ORDER
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1 this agreement, and (d) request that such person or persons execute the “Acknowledgment and
2 Agreement to Be Bound” that is attached hereto as Exhibit A.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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

6 produced material is subject to a claim of privilege or other protection, the obligations of the
7 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
8 provision is not intended to modify whatever procedure may be established in an e-discovery
9 order or agreement that provides for production without prior privilege review. Parties shall
10 confer on an appropriate non-waiver order under Fed. R. Evid. 502.
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NON TERMINATION AND RETURN OF DOCUMENTS

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

13 party must return all confidential material to the producing party, including all copies, extracts
14 and summaries thereof. Alternatively, the parties may agree upon appropriate methods of
15 destruction.
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Notwithstanding this provision, counsel are entitled to retain one archival copy of all

17 documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
18 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert
19 work product, even if such materials contain confidential material.
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The confidentiality obligations imposed by this agreement shall remain in effect until a

21 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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STIPULATED PROTECTIVE ORDER
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1 January 19, 2017
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5 s/ Mark K. Davis
Mark K. Davis, WSBA #38713
6 [e-mail]

s/ Pamela Salgado
Pamela Salgado, WSBA #22741
[e-mail]

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SCHLEMLEIN GOETZ FICK & SCRUGGS, PLLC
8 66 S. Hanford St., Ste. 300
Seattle, WA 98134
9 Tel: [phone]
Fax: [phone]
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LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
Phone:
206.623.3300
Fax:
206.447.6965

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Attorneys for Defendant
WELLS FARGO BANK, NATIONAL
ASSOCIATION

Attorney for Plaintiff
12 Geoffrey Lyles
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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED this 20th day of January 2017.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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STIPULATED PROTECTIVE ORDER
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_____________________________

[print

or

type

full

name],

of

4 ____________________________________________ [print or type full address], declare under
5 penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order
6 that was issued by the United States District Court for the Western District of Washington on
7 _____________ [date] in the case of Geoffrey Lyles v. Wells Fargo Bank, National Association.,
8 Case No. 2:15-cv-01716-JCC. I agree to comply with and to be bound by all the terms of this
9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could
10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
11 not disclose in any manner any information or item that is subject to this Stipulated Protective
12 Order to any person or entity except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the

14 Western District of Washington for the purpose of enforcing the terms of this Stipulated
15 Protective Order, even if such enforcement proceedings occur after termination of this action.
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17 Date: _________________________________
18 City and State where sworn and signed: _________________________________
19 Printed name: ______________________________
20 Signature: __________________________________
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STIPULATED PROTECTIVE ORDER
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