Rabang et al v. Kelly et al

Filing 94

STIPULATED PROTECTIVE ORDER by U.S. District Judge John C Coughenour. (PM)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 MARGRETTY RABANG, et al., 10 Plaintiffs, v. 11 12 STIPULATED PROTECTIVE ORDER ROBERT KELLY, JR., et al., 13 CASE NO. 17C-00088-JCC Defendants. 14 15 This matter comes before the Court on the parties’ Stipulated Motion for Protective Order 16 (Dkt. No. 93). The Court GRANTS the motion and ORDERS the following: 17 1. PURPOSES AND LIMITATIONS 18 Discovery in this action is likely to involve production of confidential, proprietary, or 19 private information for which special protection may be warranted. Accordingly, the parties hereby 20 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 21 acknowledge that this agreement is consistent with Local Civil Rule 26(c). It does not confer 22 blanket protection on all disclosures or responses to discovery, the protection it affords from public 23 disclosure and use extends only to the limited information or items that are entitled to confidential 24 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 25 confidential information under seal. 26 STIPULATED PROTECTIVE ORDER PAGE - 1 1 2. “CONFIDENTIAL” MATERIAL 2 “Confidential” material shall include the following documents and tangible things 3 produced or otherwise exchanged: (a) all electronic mail messages, (b) all text messages and social 4 media postings of any kind, (c) all minutes of Board of Directors meetings, (c) all minutes of 5 meeting of any Board of Directors subcommittee or special committee, (d) all internal memoranda, 6 notes or reports, and (e) all correspondence or documents (including drafts), produced by the 7 National American Indian Court Judges Association (NAICJA) in response to any subpoena for 8 the production of documents or deposition testimony pursuant to Federal Rule of Civil Procedure 9 45(a); or any copies of the confidential material described in (a) through (e) regarding NAICJA or 10 its Board of Directors, produced by any party to this case, or by any third party, in response to any 11 duty imposed under Federal Rule of Civil Procedure 26, or demand made under Federal Rule of 12 Civil Procedure 27, 30, 31, 33, 34, or 36. 13 3. SCOPE 14 The protections conferred by this agreement cover not only confidential material (as 15 defined above), but also (1) any information copied or extracted from confidential material; (2) all 16 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 17 conversations, or presentations by parties or their counsel that might reveal confidential material. 18 However, the protections conferred by this agreement do not cover information that is in 19 the public domain or becomes part of the public domain through trial or otherwise. 20 4. 21 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 22 or produced by another party or by a non-party in connection with this case only for prosecuting, 23 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 24 categories of persons and under the conditions described in this agreement. Confidential material 25 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 26 that access is limited to the persons authorized under this agreement. STIPULATED PROTECTIVE ORDER PAGE - 2 1 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 2 by the court or permitted in writing by the designating party, a receiving party may disclose any 3 confidential material only to: 4 5 (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; 6 (b) the officers, directors, and employees (including in house counsel) of the 7 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 8 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 9 designated; 10 11 (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); 12 (d) the court, court personnel, and court reporters and their staff; 13 (e) copy or imaging services retained by counsel to assist in the duplication of 14 confidential material, provided that counsel for the party retaining the copy or imaging service 15 instructs the service not to disclose any confidential material to third parties and to immediately 16 return all originals and copies of any confidential material; 17 (f) during their depositions, witnesses in the action to whom disclosure is 18 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 19 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 20 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 21 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 22 under this agreement; 23 24 25 26 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 4.3 Filing Confidential Material. Before filing confidential material or discussing or referencing such material in court filings, the filing party shall confer with the designating party STIPULATED PROTECTIVE ORDER PAGE - 3 1 to determine whether the designating party will remove the confidential designation, whether the 2 document can be redacted, or whether a motion to seal or stipulation and proposed order is 3 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards 4 that will be applied when a party seeks permission from the court to file material under seal. 5 5. 6 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 7 or non-party that designates information or items for protection under this agreement must take 8 care to limit any such designation to specific material that qualifies under the appropriate 9 standards. The designating party must designate for protection only those parts of material, 10 documents, items, or oral or written communications that qualify, so that other portions of the 11 material, documents, items, or communications for which protection is not warranted are not swept 12 unjustifiably within the ambit of this agreement. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 14 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 15 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 16 and burdens on other parties) expose the designating party to sanctions. 17 If it comes to a designating party’s attention that information or items that it designated for 18 protection do not qualify for protection, the designating party must promptly notify all other parties 19 that it is withdrawing the mistaken designation. 20 5.2 Manner and Timing of Designations. Except as otherwise provided in this 21 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 22 ordered, disclosure or discovery material that qualifies for protection under this agreement must 23 be clearly so designated before or when the material is disclosed or produced. 24 (a) Information in documentary form: (e.g., paper or electronic documents and 25 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 26 the designating party must affix the word “CONFIDENTIAL” to each page that contains STIPULATED PROTECTIVE ORDER PAGE - 4 1 confidential material. If only a portion or portions of the material on a page qualifies for protection, 2 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 3 markings in the margins). 4 (b) Testimony given in deposition or in other pretrial proceedings: the parties 5 and any participating non-parties must identify on the record, during the deposition or other pretrial 6 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 7 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 8 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 9 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 10 at trial, the issue should be addressed during the pre-trial conference. 11 (c) Other tangible items: the producing party must affix in a prominent place 12 on the exterior of the container or containers in which the information or item is stored the word 13 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 14 the producing party, to the extent practicable, shall identify the protected portion(s). 15 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 16 designate qualified information or items does not, standing alone, waive the designating party’s 17 right to secure protection under this agreement for such material. Upon timely correction of a 18 designation, the receiving party must make reasonable efforts to ensure that the material is treated 19 in accordance with the provisions of this agreement. 20 6. 21 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 22 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 24 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 25 challenge a confidentiality designation by electing not to mount a challenge promptly after the 26 original designation is disclosed. STIPULATED PROTECTIVE ORDER PAGE - 5 1 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 2 regarding confidential designations without court involvement. Any motion regarding confidential 3 designations or for a protective order must include a certification, in the motion or in a declaration 4 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 5 affected parties in an effort to resolve the dispute without court action. The certification must list 6 the date, manner, and participants to the conference. A good faith effort to confer requires a face- 7 to-face meeting or a telephone conference. 8 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 9 intervention, the designating party may file and serve a motion to retain confidentiality under Local 10 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 11 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 12 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 13 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 14 the material in question as confidential until the court rules on the challenge. 15 7. 16 LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 17 If a party is served with a subpoena or a court order issued in other litigation that compels 18 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 19 must: 20 21 22 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to 23 issue in the other litigation that some or all of the material covered by the subpoena or order is 24 subject to this agreement. Such notification shall include a copy of this agreement; and 25 26 (c) cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. STIPULATED PROTECTIVE ORDER PAGE - 6 1 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 3 material to any person or in any circumstance not authorized under this agreement, the receiving 4 party must immediately (a) notify in writing the designating party of the unauthorized disclosures, 5 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 6 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 7 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 8 Bound.” 9 10 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 11 When a producing party gives notice to receiving parties that certain inadvertently 12 13 14 15 16 17 18 19 20 21 22 23 24 25 produced material is subject to a claim of privilege or other protection, the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review. The parties agree to the entry of a non-waiver order under Federal Rule of Evidence 502(d) as set forth herein. 10. NON TERMINATION AND RETURN OF DOCUMENTS Within 60 days after the termination of this action, including all appeals, each receiving party must return all confidential material to the producing party, including all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. Notwithstanding this provision, counsel are entitled to retain one archival copy of all documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain confidential material. 26 STIPULATED PROTECTIVE ORDER PAGE - 7 1 2 The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 3 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: August 11, 2017 /s/GabrielGalanda Attorneys for Plaintiffs DATED: 5 August 11, 2017 /s/Rachel Saimons Attorneys for Defendant Raymond G. Dodge, Jr. 6 7 8 PURSUANT TO STIPULATION, IT IS SO ORDERED. 9 10 DATED this 15th day of August 2017. A 11 12 13 John C. Coughenour UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 STIPULATED PROTECTIVE ORDER PAGE - 8

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