Rubio v. Public Health Seattle King County et al
STIPULATED PROTECTIVE ORDER by Hon. Brian A Tsuchida. (AE)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
BRANDON J. RUBIO,
CASE NO. 2:16-cv-1307-BAT
PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary, or
17 private information for which special protection may be warranted. Accordingly, the parties hereby
18 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties
19 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
20 protection on all disclosures or responses to discovery, the protection it affords from public
21 disclosure and use extends only to the limited information or items that are entitled to confidential
22 treatment under the applicable legal principles, and it does not presumptively entitle parties to file
23 confidential information under seal.
“Confidential” material shall include the following documents and tangible things
26 produced or otherwise exchanged: medical records and documents that comprise or are part of the
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1 personnel file of defendant including disciplinary records, and any records concerning his hiring,
2 training, duties, performance, assignments, and mental and physical conditions.
The protections conferred by this agreement cover not only confidential material (as
5 defined above), but also (1) any information copied or extracted from confidential material; (2) all
6 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
7 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
9 the public domain or becomes part of the public domain through trial or otherwise.
ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
Basic Principles. A receiving party may use confidential material that is disclosed
12 or produced by another party or by a non-party in connection with this case only for prosecuting,
13 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the
14 categories of persons and under the conditions described in this agreement. Confidential material
15 must be stored and maintained by a receiving party at a location and in a secure manner that ensures
16 that access is limited to the persons authorized under this agreement.
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
18 by the court or permitted in writing by the designating party, a receiving party may disclose any
19 confidential material only to:
the receiving party’s counsel of record in this action, as well as employees
21 of counsel to whom it is reasonably necessary to disclose the information for this litigation;
the officers, directors, and employees (including in house counsel) of the
23 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
24 agree that a particular document or material produced is for Attorney’s Eyes Only and is so
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experts and consultants to whom disclosure is reasonably necessary for this
2 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
the court, court personnel, and court reporters and their staff;
copy or imaging services retained by counsel to assist in the duplication of
5 confidential material, provided that counsel for the party retaining the copy or imaging service
6 instructs the service not to disclose any confidential material to third parties and to immediately
7 return all originals and copies of any confidential material;
during their depositions, witnesses in the action to whom disclosure is
9 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
10 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
11 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
12 be separately bound by the court reporter and may not be disclosed to anyone except as permitted
13 under this agreement;
the author or recipient of a document containing the information or a
15 custodian or other person who otherwise possessed or knew the information.
Filing Confidential Material. Before filing confidential material or discussing or
17 referencing such material in court filings, the filing party shall confer with the designating party
18 to determine whether the designating party will remove the confidential designation, whether the
19 document can be redacted, or whether a motion to seal or stipulation and proposed order is
20 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards
21 that will be applied when a party seeks permission from the court to file material under seal.
DESIGNATING PROTECTED MATERIAL
Exercise of Restraint and Care in Designating Material for Protection. Each party
24 or non-party that designates information or items for protection under this agreement must take
25 care to limit any such designation to specific material that qualifies under the appropriate
26 standards. The designating party must designate for protection only those parts of material,
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1 documents, items, or oral or written communications that qualify, so that other portions of the
2 material, documents, items, or communications for which protection is not warranted are not swept
3 unjustifiably within the ambit of this agreement.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
5 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
6 unnecessarily encumber or delay the case development process or to impose unnecessary expenses
7 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
9 protection do not qualify for protection, the designating party must promptly notify all other parties
10 that it is withdrawing the mistaken designation.
Manner and Timing of Designations. Except as otherwise provided in this
12 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
13 ordered, disclosure or discovery material that qualifies for protection under this agreement must
14 be clearly so designated before or when the material is disclosed or produced.
Information in documentary form: (e.g., paper or electronic documents and
16 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
17 the designating party must affix the word “CONFIDENTIAL” to each page that contains
18 confidential material. If only a portion or portions of the material on a page qualifies for protection,
19 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
20 markings in the margins).
Testimony given in deposition or in other pretrial proceedings: the parties
22 and any participating non-parties must identify on the record, during the deposition or other pretrial
23 proceeding, all protected testimony, without prejudice to their right to so designate other testimony
24 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the
25 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or
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1 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
2 at trial, the issue should be addressed during the pre-trial conference.
Other tangible items: the producing party must affix in a prominent place
4 on the exterior of the container or containers in which the information or item is stored the word
5 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
6 the producing party, to the extent practicable, shall identify the protected portion(s).
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
8 designate qualified information or items does not, standing alone, waive the designating party’s
9 right to secure protection under this agreement for such material. Upon timely correction of a
10 designation, the receiving party must make reasonable efforts to ensure that the material is treated
11 in accordance with the provisions of this agreement.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
Timing of Challenges. Any party or non-party may challenge a designation of
14 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
15 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
16 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
17 challenge a confidentiality designation by electing not to mount a challenge promptly after the
18 original designation is disclosed.
Meet and Confer. The parties must make every attempt to resolve any dispute
20 regarding confidential designations without court involvement. Any motion regarding confidential
21 designations or for a protective order must include a certification, in the motion or in a declaration
22 or affidavit, that the movant has engaged in a good faith meet and confer conference with other
23 affected parties in an effort to resolve the dispute without court action. The certification must list
24 the date, manner, and participants to the conference. A good faith effort to confer requires a face25 to-face meeting or a telephone conference.
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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 Local
3 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 maintain
7 the material in question as confidential until the court rules on the challenge.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
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 party
promptly notify the designating party in writing and include a copy of the
14 subpoena or court order;
promptly notify in writing the party who caused the subpoena or order to
16 issue in the other litigation that some or all of the material covered by the subpoena or order is
17 subject to this agreement. Such notification shall include a copy of this agreement; and
cooperate with respect to all reasonable procedures sought to be pursued by
19 the designating party whose confidential material may be affected.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential
22 material to any person or in any circumstance not authorized under this agreement, the receiving
23 party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
24 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the
25 person or persons to whom unauthorized disclosures were made of all the terms of this agreement,
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1 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
2 Bound” that is attached hereto as Exhibit A.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
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 provision
8 is not intended to modify whatever procedure may be established in an e-discovery order or
9 agreement that provides for production without prior privilege review. The parties agree to the
10 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
NON TERMINATION AND RETURN OF DOCUMENTS
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 and
14 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction.
Notwithstanding this provision, counsel are entitled to retain one archival copy of all
16 documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
17 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work
18 product, even if such materials contain confidential material.
The confidentiality obligations imposed by this agreement shall remain in effect until a
20 designating party agrees otherwise in writing or a court orders otherwise.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
23 DATED: October 16, 2017
24 s/ Dan N. Fiorito III
Dan N Fiorito, III
25 844 NW 48TH ST
26 Seattle, WA 98107
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1 Michelle Peterson
2 Michelle Peterson Law PLLC
1420 Fifth Ave
3 STE 2200
Seattle, WA 98101
Attorneys for Plaintiff
s/Richard L Anderson
7 Richard L Anderson
King County Prosecuting Attorney’s Office (3rd Ave)
8 516 3rd Ave
W554 King County Courthouse
Seattle, WA 98104
11 Attorney for Defendant
PURSUANT TO STIPULATION, IT IS SO ORDERED.
IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of
any documents in this proceeding shall not, for the purposes of this proceeding or any other
16 proceeding in any other court, constitute a waiver by the producing party of any privilege
17 applicable to those documents, including the attorney-client privilege, attorney work-product
18 protection, or any other privilege or protection recognized by law.
DATED: October 17th, 2017.
BRIAN A. TSUCHIDA
United States Magistrate Judge
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
4 ____________________________________ [print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was
6 issued by the United States District Court for the Western District of Washington on [date] in the
7 case of ________________ [insert formal name of the case and the number and initials
8 assigned to it by the court]. 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.
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 Protective
15 Order, even if such enforcement proceedings occur after termination of this action.
17 City and State where sworn and signed:
18 Printed name:
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