Brown v. King County

Filing 22

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIALITY, by Judge Thomas S. Zilly. (SWT)

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The Honorable Thomas S. Zilly

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CLAUDE BROWN,

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Plaintiff,

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vs.

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No. 2:16-cv-01340-TSZ

KING COUNTY,

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STIPULATED PROTECTIVE ORDER
REGARDING CONFIDENTIALITY
Defendant.

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1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential or private information
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for which special protection may be warranted, including information that is exempt from public
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disclosure and non-public records regarding the application process for a work assignments within
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the King County Department of Transportation. Accordingly, the parties hereby stipulate to and
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petition the court to enter the following Stipulated Protective Order. The parties acknowledge that
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this agreement is consistent with CR 26(c). It does not confer blanket protection on all disclosures
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or responses to discovery, the protection it affords from public disclosure and use extends only to
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the limited information or items that are entitled to confidential treatment under the applicable legal
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principles, and it does not presumptively entitle parties to file confidential information under seal.
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Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 1

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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2.

“Confidential” material will include the following documents, electronically stored

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“CONFIDENTIAL MATERIAL”

information (ESI) and tangible things produced or otherwise exchanged:

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a. King County’s personnel and employee records;

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b. Non-public employment applications, resumes, rating packets and test questions

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concerning the work assignments with King County Department of Transportation at

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issue in this litigation;

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c. King County’s Office of Civil Rights records;

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d. King County’s Ombudsman’s Office records; and

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e. Any other material enjoying special legal protection from disclosure that is relevant

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to this case.
3.

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

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above), but also (1) any information copied or extracted from confidential material; (2) all copies,

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excerpts, summaries, or compilations of confidential material; and (3) any testimony, conversations,

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or presentations by parties or their counsel that might reveal confidential material. However, the

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protections conferred by this agreement do not cover information that is in the public domain or

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becomes part of the public domain through trial or otherwise. In addition, these protections do not

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apply to information that is already in the public record, such as in a publicly accessible court file or

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trial transcript.

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4.

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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

Basic Principles

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Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 2

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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A receiving party may use confidential material that is disclosed or produced by another

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party or by a non-party in connection with this case only for prosecuting, defending, or

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attempting to settle this litigation. Confidential material may be disclosed only to the categories

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of persons and under the conditions described in this agreement. Confidential material must be

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stored and maintained by a receiving party at a location and in a secure manner that ensures that

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access is limited to the persons authorized under this agreement.
Disclosure of “CONFIDENTIAL” Information or Items.

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4.2

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Unless otherwise ordered by the court or permitted in writing by the designating party, a

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receiving party may 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

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

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

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receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties

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agree that a particular document or material produced is for Attorney’s Eyes Only and is so

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designated;

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(c) experts and consultants to whom disclosure is reasonably necessary for this
litigation 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

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

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

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return all originals and copies of any confidential material;

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Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 3

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the designating party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal confidential material must be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted under this

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agreement;

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(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.

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4.3

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Before filing confidential material or discussing or referencing such material in court

Filing Confidential Material

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filings, the filing party shall confer with the designating party to determine whether the

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designating party will remove the confidential designation, whether the document can be

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redacted, or whether a motion to seal or stipulation and proposed order is warranted. Local Civil

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Rule 5(g) sets forth the procedures that must be followed and the standards that will be applied

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when a party seeks permission from the court to file material under seal.

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4.4

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Searching Confidential Material

The parties may mutually agree to allow any party to review records on-site, which could

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contain confidential material, in order to ascertain their responsiveness and designate the materials

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for copying and production. In the event the parties agree to employee such a procedure and a

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party’s counsel views material it reasonably believes would qualify as confidential under this order,

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counsel will agree to treat the material as if it were designated confidential under this order or until
further order of the court or agreement of the parties.

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5.

DESIGNATING PROTECTED MATERIAL
Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 4

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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5.1

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

Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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

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not swept unjustifiably within the ambit of this agreement.

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

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

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

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expenses and burdens on other parties) expose the designating party to sanctions. If it comes to a

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designating party’s attention that information or items that it designated for protection do not

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qualify for protection, the designating party must promptly notify all other parties that it is

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withdrawing the mistaken designation.

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5.2

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Except as otherwise provided in this agreement (see, e.g., second paragraph of section

Manner and Timing of Designations

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5.2(a) below), or as otherwise stipulated or ordered, disclosure of discovery material that

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qualifies for protection under this agreement must be clearly so designated before or when the

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material is disclosed or produced.

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

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

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the designating party must affix the word “CONFIDENTIAL” to each page that contains

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confidential material. If only a portion or portions of the material on a page qualifies for
Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 5

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

1

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

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making appropriate markings in the margins).

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(b) Testimony given in deposition or in other pretrial or trial proceedings: the

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

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

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

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deposition transcript, 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

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

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

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

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5.3

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If timely corrected, an inadvertent failure to designate qualified information or items does

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not, standing alone, waive the designating party’s right to secure protection under this agreement

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for such material. Upon timely correction of a designation, the receiving party must make

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reasonable efforts to ensure that the material is treated in accordance with the provisions of this

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agreement.

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6.

Inadvertent Failures to Designate

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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Any party or non-party may challenge a designation of confidentiality at any time. Unless

Timing of Challenges

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a prompt challenge to a designating party’s confidentiality designation is necessary to avoid

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foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or

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Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 6

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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delay of the litigation, a party does not waive its right to challenge a confidentiality designation

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by electing not to mount a challenge promptly after the original designation is disclosed.

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6.2

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The parties must make every attempt to resolve any dispute regarding confidential

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designations without court involvement. Any motion regarding confidential designations or for a

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protective order must include a certification, in the motion or in a declaration or affidavit, that

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the movant has engaged in a good faith meet and confer conference with other affected parties in

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an effort to resolve the dispute without court action. The certification must list the date, manner,

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and participants to the conference. A good faith effort to confer requires a face-to-face meeting

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or a telephone conference.

Meet and Confer

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6.3

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If the parties cannot resolve a challenge without court intervention, the designating party

Judicial Intervention

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may file and serve a motion to retain confidentiality under Local Civil Rule 7 (and in compliance

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with Local Civil Rule 5(g), if applicable). The burden of persuasion in any such motion shall be

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on the designating party. Frivolous challenges and those made for an improper purpose (e.g., to

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harass or impose unnecessary expenses and burdens on other parties) may expose the

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challenging party to sanctions. All parties shall continue to maintain the material in question as

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confidential until the court rules on the challenge.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION OR SUBJECT TO A PUBLIC DISCLOSURE REQUEST

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

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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that

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party must:
Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 7

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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(a) promptly notify the designating party in writing and include a copy of the subpoena or
court order;

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

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

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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

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designating party whose confidential material may be affected.

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8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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material to any person or in any circumstance not authorized under this agreement, the receiving

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party must immediately (a) notify in writing the designating party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material,

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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of

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this agreement, and (d) request that such person or persons execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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

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produced material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(6). This provision is

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not intended to modify whatever procedure may be established in an e-discovery order or

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agreement that provides for production without prior privilege review. Parties shall confer on an

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appropriate non-waiver order under Fed. R. Evid. 502.
Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 8

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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10.

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

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

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

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destruction. Notwithstanding this provision, counsel are entitled to retain one archival copy of all

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documents filed with the court, trial, deposition, and hearing transcripts, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and expert

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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

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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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DATED this 15th day of May, 2017.
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s/DARRYL PARKER___________________________
Darryl Parker, WSBA #30770
Attorney for Plaintiff Claude Brown

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s/ERIN OVERBEY___________________________
Erin Overbey, WSBA #21907
Attorney for Defendant King County

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s/KIMBERLY FREDERICK___________________________
Kimberly Y. Frederick, WSBA No. #37857
Attorney for Defendant King County

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Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 9

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated this 17th day of May, 2017.

A

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Thomas S. Zilly
United States District Judge

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Presented by:

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By:

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s/ERIN OVERBEY
Erin Overbey
Kimberly Y. Frederick
Senior Deputy Prosecuting Attorneys
Attorneys for Defendant King County

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Approved as to Form and For Entry;
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Civil Rights Justice Center, PLLC

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By:
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s/DARRYL PARKER
Darryl Parker, WSBA #30770
Attorney for Plaintiff

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Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 10

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]

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EXHIBIT A
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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
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I, the undersigned, hereby acknowledge that I have received and read a copy of the

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Stipulated Protective Order (“Order”) entered in Claude Brown v. King County, United States
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District Court; Cause No. 16-cv-01340, that I understand the provisions in the Order; that I agree

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to be bound by all provisions of the Order; that I submit to the jurisdiction of the Court for the

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purpose of enforcing the Order; and that I understand that sanctions may be imposed by the
Court, including an order of contempt, if I fail to abide by and comply with all the terms,

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conditions and restrictions imposed by the Order.

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_____________________________
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_____________________________

Date

Signature

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_____________________________
Name Printed

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Daniel T. Satterberg, Prosecuting Attorney

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY - 11

CIVIL DIVISION, Litigation Section
900 King County Administration Building
500 Fourth Avenue
Seattle, Washington 98104
[phone] Fax [phone]