Davis v. Johnson International Industries, Inc. et al

Filing 9

STIPULATED PROTECTIVE ORDER re parties' 8 Stipulated Motion, by Judge Thomas S. Zilly. (SWT)

The Honorable Thomas S. Zilly

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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MICHAEL DAVIS,
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Plaintiff,

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v.

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NO. 2:16-cv-1660-TSZ

JOHNSON INTERNATIONAL
INDUSTRIES, INC., d/b/a CONTINENTAL
HARDWOOD CO., a Washington
Corporation, and LISA JOHNSON, an
individual and the marital community
comprised of LISA JOHNSON and DON
FULLER,

STIPULATED
PROTECTIVE ORDER

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Defendants.

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Plaintiff Michael Davis and Defendants Johnson International Industries, Inc., d/b/a

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Continental Hardwood Co., Lisa Johnson and Don Fuller, through their respective counsel of

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record, hereby move pursuant to Federal Rule of Civil Procedure (26)(c) for entry of this

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Stipulated Protective Order:

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1.

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PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary,

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commercially valuable or private information for which special protection may be warranted.

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Disclosure of such confidential information may cause financial or competitive harm to one or

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both Parties. Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order is consistent

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STIPULATED PROTECTIVE ORDER - 1

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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with LCR 26(c). It does not confer blanket protection on all disclosures or responses to

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

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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

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seal.

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2.

DESIGNATED MATERIAL

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“Designated Material” shall include the documents, tangible items, or testimony

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produced, elicited, or otherwise exchanged in this action which the party producing or disclosing

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such material (the “Designating Party”) designates as “Confidential” or “Highly Confidential –

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Attorneys’ Eyes Only.” Designated Material may include, but is not limited to, names and

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contact information of customers and employees; contracts and agreements with customers and

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employees; personnel information related to non-parties; information maintained as confidential

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during the normal course of business related to sales, pricing, revenue, strategy and other

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commercial interests; and medical records.

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2.1

Designated Material marked “Confidential” shall include any document, file,

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portion of file, transcribed testimony or other material that the Designating Party in good faith

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reasonably believes comprises confidential information related to customers, employees,

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commercial interests, or other information that could cause commercial, professional, or personal

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harm through disclosure.

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2.2

Designated Material marked as “Highly Confidential - Attorneys’ Eyes Only”

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shall include any document, file, portion of file, transcribed testimony or other material that the

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Designating Party in good faith reasonably believes comprises trade secrets or other competitive

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sensitive confidential information, financial or other commercial or personally sensitive

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information that requires such heightened protection. Designated Material may be designated

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“Highly Confidential – Attorneys’ Eyes Only” only if the Designating Party believes in good

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faith that designation as “Confidential” will not provide adequate protection.

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STIPULATED PROTECTIVE ORDER - 2

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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3.

SCOPE

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The protections conferred by this Order cover not only Designated Material (as defined

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

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excerpts, summaries, or compilations of Designated Material; and (3) any testimony,

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conversations, or presentations by parties or their counsel that might reveal Designated Material.

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However, the protections conferred by this Order do not cover information that is in the public

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domain or becomes part of the public domain through trial or otherwise.

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4.

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ACCESS TO AND USE OF DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use Designated Material that is disclosed

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

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defending, or attempting to settle this litigation. Designated Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. Designated Material

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

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reasonably ensures that access is limited to the persons authorized under this Order.

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4.2

Disclosure of “Confidential” Information or Items. Unless otherwise ordered by

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the court or permitted in writing by the Designating Party, material designated as “Confidential”

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may be disclosed only to the following persons:

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(a)

the receiving party;

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(b)

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

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

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(c)

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

receiving party to whom disclosure is reasonably necessary for this litigation;

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(d)

experts and consultants to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(e)

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

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STIPULATED PROTECTIVE ORDER - 3

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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(f)

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

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Designated Material, provided that counsel for the party retaining the copy or imaging service

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instructs the service not to disclose any Designated Material to third parties and to immediately

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return all originals and copies of any Designated Material;

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(g)

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

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

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Designated Material must

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

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under this Order; or

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(h)

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

shown on the document as having received it in the ordinary course of business.

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4.3

Disclosure of “Highly Confidential – Attorneys’ Eyes Only” Information or

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Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party,

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material designated as “Highly Confidential – Attorneys’ Eyes Only” may be disclosed only to

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the following persons:

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(a)

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

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

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(b)

experts and consultants to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(c)

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

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(d)

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

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Designated Material, provided that counsel for the party retaining the copy or imaging service

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instructs the service not to disclose any Designated Material to third parties and to immediately

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return all originals and copies of any Designated Material;

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STIPULATED PROTECTIVE ORDER - 4

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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(e)

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

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

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Designated Material must

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

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under this Order;

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(f)

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

shown on the document as having received it in the ordinary course of business; or

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(g)

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4.4

the receiving party, but only within thirty days of the first day of trial.

Filing Designated Material. Before filing Designated Material or discussing or

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referencing such material in court filings, the filing party shall confer with the Designating Party

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to determine whether the Designating Party will remove the confidential designation, whether

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the document can be redacted, or whether a motion to seal or stipulation and proposed order is

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warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the court to file material under

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seal.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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

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

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standards. The Designating Party must designate for protection only those parts of material,

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

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

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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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STIPULATED PROTECTIVE ORDER - 5

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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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.

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If it comes to a Designating Party’s attention that information or items that it designated

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for protection do not qualify for protection, the Designating Party must promptly notify all other

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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 Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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disclosure or discovery material that qualifies for protection under this Order must be clearly so

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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

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

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proceedings), the Designating Party must affix the words “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains Designated

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Material. If only a portion or portions of the material on a page qualifies for protection, the

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Designating Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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(b)

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

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and any participating non-parties must identify on the record, during the deposition or other

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pretrial proceeding, all protected testimony, without prejudice to their right to so designate other

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

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receiving the transcript of the deposition or other pretrial proceeding, designate portions of the

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transcript, or exhibits thereto, as Designated Material. Prior to the expiration of the fifteen day

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period, the entire deposition transcript shall be treated as “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” If a party or non-party desires to protect Designated Material at

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trial, the issue should be addressed during the pre-trial conference.

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(c)

Other tangible items: the Designating Party must affix in a prominent

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

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STIPULATED PROTECTIVE ORDER - 6

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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word “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If

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only a portion or portions of the information or item warrant protection, the Designating Party, to

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

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5.3

Failures to Designate. A 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 Order for

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such material. Upon receiving 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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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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

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

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

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original designation is disclosed.

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6.2

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

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regarding confidential designations without court involvement. Any motion regarding

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

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

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

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

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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

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intervention, the Designating Party may file and serve a motion to retain confidentiality under

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Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of

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persuasion in any such motion shall be on the Designating Party. Frivolous challenges, and those

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

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STIPULATED PROTECTIVE ORDER - 7

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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

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maintain the material in question as confidential until the court rules on the challenge.

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7.

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LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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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” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that party must:

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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

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

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subject to this Order. Such notification shall include a copy of this Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Designated 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 Designated

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Material to any person or in any circumstance not authorized under this Order, 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 Order, 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.

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MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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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)(5)(B). This

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STIPULATED PROTECTIVE ORDER - 8

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order or agreement that provides for production without prior privilege review. The parties

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agree to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.

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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

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party must return all Designated 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.

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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 Designated Material.

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The confidentiality obligations imposed by this Order shall remain in effect until a
Designating Party agrees otherwise in writing or a court orders otherwise.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: May 30, 2017

/s/ Marina M. Visan
Todd W. Wyatt, WSBA #31608
Marina M. Visan, WSBA #49127
CARSON & NOEL PLLC
Email: [e-mail]
[e-mail]
20 Sixth Avenue NE
Issaquah, WA 98027
Tel: [phone]
Attorneys for Plaintiff

DATED: May 30, 2017

/s/ Darren A. Feider
Darren A. Feider, WSBA #22430
Tina M. Aiken, WSBA # 27792
Email: [e-mail]
[e-mail]
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] / Fax: [phone]
Attorneys for Defendants

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STIPULATED PROTECTIVE ORDER - 9

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any

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documents in this proceeding shall not, for the purposes of this proceeding or any other

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proceeding in any other court, constitute a waiver by the producing party of any privilege

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applicable to those documents, including the attorney-client privilege, attorney work-product

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protection, or any other privilege or protection recognized by law.

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DATED this 1st day of June, 2017.

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A

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Thomas S. Zilly
United States District Judge

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STIPULATED PROTECTIVE ORDER - 10

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

____________________________________

[print

or

type

full

name],

of

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____________________________________ [print or type full address], declare under penalty of

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perjury that I have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Western District of Washington on [date] in the

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case of Michael Davis v. Johnson International Industries, Inc., d/b/a Continental Hardwood

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Co., Lisa Johnson and Don Fuller, Care No. 2:16-cv-1660-TSZ. I agree to comply with and to

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

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

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I solemnly promise that I will not disclose in any manner any information or item that is subject

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to this Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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

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

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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STIPULATED PROTECTIVE ORDER - 11

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]