Riggs v. Life Care Centers of America Inc

Filing 18

STIPULATED PROTECTIVE ORDER re parties' 17 Stipulation, by Judge Thomas S. Zilly. (SWT)

1

Honorable Thomas S. Zilly

2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

8
9
10
11

IRENE RIGGS, an individual,

Civil Action No. 2:16-cv-01525 TSZ

Plaintiff,

STIPULATED PROTECTIVE
ORDER

vs.

12

LIFE CARE CENTERS OF AMERICA,
INC., a Tennessee Corporation,

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 by defendant Life Care Centers of America, Inc. (“Life Care”) for which

18

special protection may be warranted. Accordingly, the parties hereby stipulate to and petition

19

the court to enter the following Stipulated Protective Order. The parties acknowledge that this

20

agreement is consistent with LCR 26(c). It does not confer blanket protection on all disclosures

21

or responses to discovery, the protection it affords from public disclosure and use extends only

22

to the limited information or items that are entitled to confidential treatment under the

23

applicable legal principles, and it does not presumptively entitle parties to file confidential

24

information under seal.

25

2.

“CONFIDENTIAL” MATERIAL

26

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

27

produced or otherwise exchanged by Life Care: quality indicator reports, investigation files,
STIPULATED PROTECTIVE ORDER - 1
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

1

personnel files for any employee other than Plaintiff, policies and procedures, and confidential

2

or sensitive information concerning Life Care residents, employees, operations, business,

3

practices, policies, and procedures.

4

3.

SCOPE

5

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

6

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

7

all copies, excerpts, summaries, or compilations of confidential material; and (3) any

8

testimony, conversations, or presentations by parties or their counsel that might reveal

9

confidential material. However, the protections conferred by this agreement do not cover

10

information that is in the public domain or becomes part of the public domain through trial or

11

otherwise.

12

4.

13

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

Basic Principles.

A receiving party may use confidential material that is

14

disclosed or produced by another party or by a non-party in connection with this case only for

15

prosecuting, defending, or attempting to settle this litigation. Confidential material may be

16

disclosed only to the categories of persons and under the conditions described in this

17

agreement. Confidential material must be stored and maintained by a receiving party at a

18

location and in a secure manner that ensures that access is limited to the persons authorized

19

under this agreement.

20

4.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless otherwise

21

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

22

disclose any confidential material only to:

23

(a)

the receiving party’s counsel of record in this action, as well as

24

employees of counsel to whom it is reasonably necessary to disclose the information for

25

this litigation;

26
27

(b)

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

receiving party to whom disclosure is reasonably necessary for this litigation, unless the
STIPULATED PROTECTIVE ORDER - 2
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

1

parties agree that a particular document or material produced is for Attorney’s Eyes

2

Only and is so designated;

3

(c)

experts and consultants to whom disclosure is reasonably necessary for

4

this litigation and who have signed the “Acknowledgment and Agreement to Be

5

Bound” (Exhibit A);

6

(d)

the court, court personnel, and court reporters and their staff;

7

(e)

copy or imaging services retained by counsel to assist in the duplication

8

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

9

imaging service instructs the service not to disclose any confidential material to third

10

parties and to immediately return all originals and copies of any confidential material;

11

(f)

during their depositions, witnesses in the action to whom disclosure is

12

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

13

Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the

14

court. Pages of transcribed deposition testimony or exhibits to depositions that reveal

15

confidential material must be marked “confidential”;

16

(g)

the author or recipient of a document containing the information or a

17

custodian or other person who otherwise possessed or knew the information.

18

4.3

Filing Confidential Material. Before filing confidential material or discussing or

19

referencing such material in court filings, the filing party shall indicate to the designating party

20

what measures are being taken to protect confidential information and the designating party

21

can object or indicate a preferred alternative method including whether the designating party

22

will remove the confidential designation, whether the document can be redacted, or whether a

23

motion to seal or stipulation and proposed order is warranted. Local Civil Rule 5(g) sets forth

24

the procedures that must be followed and the standards that will be applied when a party seeks

25

permission from the court to file material under seal.

26

5.

DESIGNATING PROTECTED MATERIAL

27
STIPULATED PROTECTIVE ORDER - 3
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

1

5.1

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

2

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

3

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

4

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

5

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

6

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

7

warranted are not swept unjustifiably within the ambit of this agreement. Mass, indiscriminate,

8

or routinized designations are prohibited. Designations that are shown to be clearly unjustified

9

or that have been made for an improper purpose (e.g., to unnecessarily encumber or delay the

10

case development process or to impose unnecessary expenses and burdens on other parties)

11

expose the designating party to sanctions. If it comes to a designating party’s attention that

12

information or items that it designated for protection do not qualify for protection, the

13

designating party must promptly notify all other parties that it is withdrawing the mistaken

14

designation.

15

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 of discovery material that qualifies for protection under this agreement

18

must be clearly so designated before or when the material is disclosed or produced.

19

(a)

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

20

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

21

proceedings), the designating party must affix the word “CONFIDENTIAL” to each

22

page that contains confidential material. If only a portion or portions of the material on

23

a page qualifies for protection, the producing party also must clearly identify the

24

protected portion(s) (e.g., by making appropriate markings in the margins).

25

(b)

Testimony given in deposition or in other pretrial or trial proceedings:

26

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

27

proceeding, all protected testimony, without prejudice to their right to so designate
STIPULATED PROTECTIVE ORDER - 4
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

1

other testimony after reviewing the transcript. Any party or non-party may, within

2

fifteen days after receiving a deposition transcript, designate portions of the transcript,

3

or exhibits thereto, as confidential.

4

(c)

Other tangible items: the producing party must affix in a prominent

5

place on the exterior of the container or containers in which the information or item is

6

stored the word “CONFIDENTIAL.” If only a portion or portions of the information or

7

item warrant protection, the producing party, to the extent practicable, shall identify the

8

protected portion(s).

9

5.3

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

10

designate qualified information or items does not, standing alone, waive the designating party’s

11

right to secure protection under this agreement for such material. Upon timely correction of a

12

designation, the receiving party must make reasonable efforts to ensure that the material is

13

treated in accordance with the provisions of this agreement.

14

6.

15

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

16

confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality

17

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

18

burdens, or a significant disruption or delay of the litigation, a party does not waive its right to

19

challenge a confidentiality designation by electing not to mount a challenge promptly after the

20

original designation is disclosed.

21

6.2

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

22

regarding confidential designations without court involvement. Any motion regarding

23

confidential designations or for a protective order must include a certification, in the motion or

24

in a declaration or affidavit, that the movant has engaged in a good faith meet and confer

25

conference with other affected parties in an effort to resolve the dispute without court action.

26

The certification must list the date, manner, and participants to the conference. A good faith

27

effort to confer requires a face-to-face meeting or a telephone conference.
STIPULATED PROTECTIVE ORDER - 5
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

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

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

5

those made for an improper purpose (e.g., to harass or impose unnecessary expenses and

6

burdens on other parties) may expose the challenging party to sanctions. All parties shall

7

continue to maintain the material in question as confidential until the court rules on the

8

challenge.

9

7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

10

OTHER LITIGATION

11

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

12

compels

disclosure

13

“CONFIDENTIAL,” that party must:

14

(a)

15

of

any information

or

items

designated

in

this

action

as

promptly notify the designating party in writing and include a copy of

the subpoena or court order;

16

(b)

promptly notify in writing the party who caused the subpoena or order to

17

issue in the other litigation that some or all of the material covered by the subpoena or

18

order is subject to this agreement. Such notification shall include a copy of this

19

agreement; and

20

(c)

21
22

cooperate with respect to all reasonable procedures sought to be pursued

by the designating party whose confidential material may be affected.
8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

23

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

24

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

25

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

26

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

27

protected material, (c) inform the person or persons to whom unauthorized disclosures were
STIPULATED PROTECTIVE ORDER - 6
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

1

made of all the terms of this agreement, and (d) request that such person or persons execute the

2

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

3

9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

4

MATERIAL

5

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.

11

10.

NON TERMINATION AND RETURN OF DOCUMENTS

12

Within 60 days after the termination of this action, all confidential information is to be

13

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

14

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

15

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

16

work product, even if such materials contain confidential material.

17

obligations imposed by this agreement shall remain in effect until a designating party agrees

18

otherwise in writing or a court orders otherwise.

19

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: March 31, 2017
DATED: March 31, 2017

20
21

The confidentiality

MERCER ISLAND LAW GROUP PLLC
Attorneys for Plaintiff

LEWIS BRISBOIS BISGAARD & SMITH LLP
Attorneys for Defendant

By:
s/Gregory M. Skidmore
George O. Tamblyn, WA Bar No. 15429
Gregory M. Skidmore, WA Bar No. 47462
2448 76th venue SE, Suite 100
Mercer Island, WA 98040
[phone]
[e-mail]
[e-mail]

By:
s/Benjamin J. Stone
Benjamin J. Stone, WA Bar No. 33436
John T. Bender, WA Bar No. 49658
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
[phone]
[e-mail]
[e-mail]

22
23
24
25
26
27

STIPULATED PROTECTIVE ORDER - 7
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

1
2

PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED: April 6, 2017.

A

3
4

Thomas S. Zilly
United States District Judge

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
STIPULATED PROTECTIVE ORDER - 8
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020

EXHIBIT A

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2
3
4
5

I,

[print or type full name], of

[print or type full address], declare under penalty of perjury that I have read in its entirety
and understand the Stipulated Protective Order that was issued by the UnitedStates District

6
Court for the Western District of Washington on

[date] in the case of

7
8

Riggs v. Life Care Centers of America, Inc., United States District Court, Western District of

9

Washington Case No. Civil Action No. 2:16-cv-01525 TSZ. I agree to comply with and to be

10

bound by all the terms of this Stipulated Protective Order and I understand and acknowledge

11

that failure to so comply could expose me to sanctions and punishment in the nature of

12
13

contempt. I solemnly promise that I will not disclose in any manner any information or
item that is subject to this Stipulated Protective Order to any person or entity except in strict

14
15
16

compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the

17

Western District of Washington for the purpose of enforcing the terms of this Stipulated

18

Protective Order, even if such enforcement proceedings occur after termination of this action.

19
20

Date:
City and State where sworn and signed:

21
22

Printed name:

23

Signature:

24
25
26
27
STIPULATED PROTECTIVE ORDER - 9
USDC WD WA CAUSE NO. 2:16-cv-01525 TSZ

4813-7502-8550.1

LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, Washington 98101
206.436.2020