Gammel et al v. Holland America Line-USA et al

Filing 17

STIPULATED PROTECTIVE ORDER re parties' 16 Stipulation, 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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10 JEANETTE M. GAMMEL and WILLIAM E.
11 GAMMEL,
Plaintiffs,

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No. 2:16cv-01601
STIPULATED PROTECTIVE
ORDER

v.

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14 HOLLAND AMERICA LINE – U.S.A., et al.,
Defendants.

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16 1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential, proprietary, or

18 private information for which special protection may be warranted. Accordingly, the parties
19 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The
20 parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
21 protection on all disclosures or responses to discovery, the protection it affords from public
22 disclosure and use extends only to the limited information or items that are entitled to
23 confidential treatment under the applicable legal principles, and it does not presumptively entitle
24 parties to file confidential information under seal.
25 2.

“CONFIDENTIAL” MATERIAL

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

27 produced or otherwise exchanged: (1) Plaintiffs’ medical records; (2) Plaintiffs’ personal and
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1 business financial records; (3 Databases containing cruise passengers’ information, including but
2 not limited to, contact information, medical information, and details regarding reported incidents;
3 (4) Records or reports containing cruise passengers’ information, including but not limited to
4 contact information, medical information, and details regarding reported incidents..
5 3.

SCOPE

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

7 defined above), but also (1) any information copied or extracted from confidential material;
8 (2) all copies, excerpts, summaries, or compilations of confidential material; and (3) any
9 testimony, conversations, or presentations by parties or their counsel that might reveal
10 confidential material. However, the protections conferred by this agreement do not cover
11 information that is in the public domain or becomes part of the public domain through trial or
12 otherwise.
13 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

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

21 ordered by the court or permitted in writing by the designating party, a receiving party may
22 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

24 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

26 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
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Davis Wright Tremaine LLP
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Seattle, Washington 98101-3045

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1 agree that a particular document or material produced is for Attorney’s Eyes Only and is so
2 designated;
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(c) experts and consultants to whom disclosure is reasonably necessary for this

4 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, document management, electronic discovery, or imaging services

7 retained by counsel to assist in the duplication of confidential material, provided that counsel for
8 the party retaining the copy or imaging service instructs the service not to disclose any
9 confidential material to third parties and to immediately return all originals and copies of any
10 confidential material upon completion of the service;
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(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 Bound”
13 (Exhibit 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

18 custodian or other person who otherwise possessed or knew the information; and
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(h) any mediator retained by the parties or appointed by the Court in this action

20 and employees of such mediator who are assisting in the conduct of the mediation.
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4.3

Filing Confidential Material. Before filing confidential material or discussing or

22 referencing such material in court filings, the filing party shall confer with the designating party
23 to determine whether the designating party will remove the confidential designation, whether the
24 document can be redacted, or whether a motion to seal or stipulation and proposed order is
25 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the
26 standards that will be applied when a party seeks permission from the court to file material under
27 seal.
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1 5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

3 or non-party that designates information or items for protection under this agreement must take
4 care to limit any such designation to specific material that qualifies under the appropriate
5 standards. The designation may be applied to the entirety of a document. However, upon
6 reasonable request of the opposing party, the producing party must provide a more narrowly
7 designated version of a document previously designated in its entirety, designating for protection
8 only those parts of material, documents, items, or oral or written communications that qualify for
9 protection.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

11 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
12 unnecessarily encumber or delay the case development process or to impose unnecessary
13 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

15 for protection do not qualify for protection, the designating party must promptly notify all other
16 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

18 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
19 ordered, disclosure or discovery material that qualifies for protection under this agreement must
20 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

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

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

2 parties must identify on the record, during the deposition, hearing, or other proceeding, all
3 protected testimony, without prejudice to their right to so designate other testimony after
4 reviewing the transcript. Any party or non-party may, within fifteen days after receiving a
5 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

7 on the exterior of the container or containers in which the information or item is stored the word
8 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
9 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

11 designate qualified information or items does not, standing alone, waive the designating party’s
12 right to secure protection under this agreement for such material. Upon timely correction of a
13 designation, the receiving party must make reasonable efforts to ensure that the material is
14 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

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

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

23 regarding confidential designations without court involvement. Any motion regarding
24 confidential designations or for a protective order must include a certification, in the motion or in
25 a declaration or affidavit, that the movant has engaged in a good faith meet and confer
26 conference with other affected parties in an effort to resolve the dispute without court action. The
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Davis Wright Tremaine LLP
L AW O FFICE S
Suite 2200  1201 Third Avenue
Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1 certification must list the date, manner, and participants to the conference. A good faith effort to
2 confer requires a face-to-face meeting or a telephone conference.
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6.3

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

4 intervention, the designating party may file and serve a motion to retain confidentiality under
5 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
6 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
7 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
8 other parties) may expose the challenging party to sanctions. All parties shall continue to
9 maintain the material in question as confidential until the court rules on the challenge.
10 7.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

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

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

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

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18 in the other litigation that some or all of the material covered by the subpoena or order is subject
19 to this agreement. Such notification shall include a copy of this agreement; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by

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21 the designating party whose confidential material may be affected.
22 8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

24 material to any person or in any circumstance not authorized under this agreement, the receiving
25 party must immediately (a) notify in writing the designating party of the unauthorized
26 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material,
27 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
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L AW O FFICE S
Suite 2200  1201 Third Avenue
Seattle, Washington 98101-3045

[phone]  Fax: [phone]

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
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.
11 10.

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 destroy or return all confidential material to the producing party, including all copies,
14 extracts and summaries thereof.
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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
18 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

20 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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Davis Wright Tremaine LLP
L AW O FFICE S
Suite 2200  1201 Third Avenue
Seattle, Washington 98101-3045

[phone]  Fax: [phone]

1 By: /s/ David Roosa (per authority)
David Roosa
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FRIEDMAN/RUBIN
51 University Street, Suite 201
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Seattle, WA 98101
[phone]
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[e-mail]
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ATTORNEY FOR PLAINTIFFS

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ATTORNEYS FOR DEFENDANTS

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By: /s/ Lisa M. Marchese
Stephen M. Rummage, WSBA #11168
Lisa M. Marchese, WSBA #18396
Lauren Rainwater, WSBA #43625
DAVIS WRIGHT TREMAINE LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: April 6, 2017.

A

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Thomas S. Zilly
United States District Judge

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Davis Wright Tremaine LLP
L AW O FFICE S
Suite 2200  1201 Third Avenue
Seattle, Washington 98101-3045

[phone]  Fax: [phone]

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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 United States District Court for
the Western District of Washington on [date] in the case of Gammel v. Holland America Line –
USA, Case No. 16-1601-TSZ. I agree to comply with and to be bound by all the terms of this
Stipulated Protective Order and I understand and acknowledge that failure to so comply could
expose me to sanctions and punishment in the nature of 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 compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Western District of Washington for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this action.
Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
Signature: __________________________________

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Davis Wright Tremaine LLP
L AW O FFICE S
Suite 2200  1201 Third Avenue
Seattle, Washington 98101-3045

[phone]  Fax: [phone]