Rubio v. Public Health Seattle King County et al

Filing 42


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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 BRANDON J. RUBIO, 9 10 Plaintiff, 11 STIPULATED PROTECTIVE ORDER v. 12 CASE NO. 2:16-cv-1307-BAT ARNEL DEJESUS, 13 Defendant. 14 15 1. PURPOSES AND LIMITATIONS 16 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. 24 2. “CONFIDENTIAL” MATERIAL 25 “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 STIPULATED PROTECTIVE ORDER - 1 1 personnel file of defendant including disciplinary records, and any records concerning his hiring, 2 training, duties, performance, assignments, and mental and physical conditions. 3 3. SCOPE 4 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. 8 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. 10 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 11 4.1 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. 17 4.2 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: 20 (a) 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; 22 (b) 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 25 designated; 26 STIPULATED PROTECTIVE ORDER - 2 1 (c) 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); 3 (d) the court, court personnel, and court reporters and their staff; 4 (e) 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; 8 (f) 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; 14 (g) the author or recipient of a document containing the information or a 15 custodian or other person who otherwise possessed or knew the information. 16 4.3 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. 22 5. DESIGNATING PROTECTED MATERIAL 23 5.1 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, STIPULATED PROTECTIVE ORDER - 3 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. 4 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. 8 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. 11 5.2 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. 15 (a) 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). 21 (b) 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 26 STIPULATED PROTECTIVE ORDER - 4 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. 3 (c) 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). 7 5.3 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. 12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 6.1 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. 19 6.2 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. 26 STIPULATED PROTECTIVE ORDER - 5 1 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 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. 8 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 9 LITIGATION 10 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 12 must: 13 (a) promptly notify the designating party in writing and include a copy of the 14 subpoena or court order; 15 (b) 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 18 (c) cooperate with respect to all reasonable procedures sought to be pursued by 19 the designating party whose confidential material may be affected. 20 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 21 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, 26 STIPULATED PROTECTIVE ORDER - 6 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. 3 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 4 MATERIAL When a producing party gives notice to receiving parties that certain inadvertently 5 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. 11 10. NON TERMINATION AND RETURN OF DOCUMENTS 12 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. 15 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. 19 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. 21 22 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 206-299-1582 STIPULATED PROTECTIVE ORDER - 7 s/Michelle Peterson 1 Michelle Peterson 2 Michelle Peterson Law PLLC 1420 Fifth Ave 3 STE 2200 Seattle, WA 98101 4 206-650-2213 5 Attorneys for Plaintiff 6 s/Richard L Anderson 7 Richard L Anderson King County Prosecuting Attorney’s Office (3rd Ave) 8 516 3rd Ave W554 King County Courthouse 9 Seattle, WA 98104 10 206-477-6184 11 Attorney for Defendant 12 13 14 15 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. 19 DATED: October 17th, 2017. 20 A 21 BRIAN A. TSUCHIDA United States Magistrate Judge 22 23 24 25 26 STIPULATED PROTECTIVE ORDER - 8 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 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. 13 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. 16 Date: 17 City and State where sworn and signed: 18 Printed name: 19 Signature: 20 21 22 23 24 25 26 STIPULATED PROTECTIVE ORDER - 9

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