Shavlik et al v. City of Snohomish et al

Filing 72

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

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LORI SHAVLIK, et al.,

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Plaintiffs,
v.

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CASE NO. C17-0144-JCC
STIPULATED PROTECTIVE
ORDER

CITY OF SNOHOMISH, et al.,

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Defendants.

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The Court enters the following protective order, consistent with the parties’ stipulation

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(Dkt. No. 69):

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1.

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

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information for which special protection may be warranted. Accordingly, the parties hereby

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stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties

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acknowledge that this agreement is consistent with Local Civil Rule 26(c). It does not confer

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blanket protection on all disclosures or responses to discovery, the protection it affords from

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public disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles, and it does not presumptively entitle

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parties to file confidential information under seal.

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PURPOSES AND LIMITATIONS

STIPULATED PROTECTIVE ORDER
C17-0144-JCC
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“CONFIDENTIAL” MATERIAL

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

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otherwise exchanged: Personnel files for law enforcement and/or Fire Protection District No. 4

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personnel in the current or former employ of Defendant(s).

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3.

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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

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

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

SCOPE

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

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

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4.

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4.1 Basic Principles. A receiving party may use confidential material that is disclosed or

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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. Confidential material may be disclosed only to

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the categories of persons and under the conditions described in this agreement. Confidential

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

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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 ordered by the

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Court or permitted in writing by the designating party, a receiving party may disclose any

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confidential material only to: (a) the receiving party’s counsel of record in this action, as well as

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

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

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litigation and who have signed an “Acknowledgment and Agreement to Be Bound”; (c) the

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Court, court personnel, and court reporters and their staff; (d) copy or imaging services retained

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by counsel to assist in the duplication of confidential material, provided that counsel for the party

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

STIPULATED PROTECTIVE ORDER
C17-0144-JCC
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retaining the copy or imaging service instructs the service not to disclose any confidential

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

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material; (e) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed an “Acknowledgment and Agreement to Be Bound”, unless

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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

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

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under this agreement; (f) the author or recipient of a document containing the information or a

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

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4.3 Filing Confidential Material. Before filing confidential material or discussing or referencing

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such material in court filings, the filing party shall confer with the designating party to determine

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

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can be redacted, or whether a motion to seal or stipulation and proposed order is warranted.

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

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be applied when a party seeks permission from the Court to file material under seal.

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5.

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5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or non-

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party that designates information or items for protection under this agreement must take care to

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limit any such designation to specific material that qualifies under the appropriate standards. The

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designating party must designate for protection only those parts of material, documents, items, or

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

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items, or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this agreement. Mass, indiscriminate, or routinized designations are

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prohibited. Designations that are shown to be clearly unjustified or that have been made for an

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improper purpose (e.g., to unnecessarily encumber or delay the case development process or to

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impose unnecessary expenses and burdens on other parties) expose the designating party to

DESIGNATING PROTECTED MATERIAL

STIPULATED PROTECTIVE ORDER
C17-0144-JCC
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sanctions. If it comes to a designating party’s attention that information or items that it

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designated for protection do not qualify for protection, the designating party must promptly

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notify all other 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 agreement (see,

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

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or discovery material that qualifies for protection under this agreement 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 and deposition

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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

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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 proceedings: the parties and any

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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

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

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within fifteen days after receiving the transcript of the deposition or other pretrial

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proceeding, designate portions of the transcript, or exhibits thereto, as confidential. If a

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party or non-party desires to protect confidential information at trial, the issue should be

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addressed during a pre-trial conference.

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(c) Other tangible items: the producing party must affix in a prominent place on the exterior

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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

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protection, the producing party, to the extent practicable, shall identify the protected

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portion(s).
STIPULATED PROTECTIVE ORDER
C17-0144-JCC
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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate

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

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

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

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treated in accordance with the provisions of this agreement.

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6.

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

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

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necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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

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designation is disclosed.

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

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confidential designations without Court involvement. Any motion regarding confidential

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

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

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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 intervention, the

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designating party may file and serve a motion to retain confidentiality under Local Civil Rule 7

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

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such motion shall be on the designating party. Frivolous challenges, and those made for an

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improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)

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may expose the challenging party to sanctions. All parties shall continue to maintain the material

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in question as confidential until the Court rules on the challenge.
STIPULATED PROTECTIVE ORDER
C17-0144-JCC
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7.

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LITIGATION

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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:

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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

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court order;

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

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

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this 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 an “Acknowledgment and

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Agreement to Be Bound.”

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9.

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MATERIAL

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

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

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parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not

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intended to modify whatever procedure may be established in an e-discovery order or agreement

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

STIPULATED PROTECTIVE ORDER
C17-0144-JCC
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that provides for production without prior privilege review. The parties agree to the entry of a

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non-waiver order under Federal Rule of Evidence 502(d) as set forth herein.

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10.

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Within 60 days after the termination of this action, including all appeals, each receiving party

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

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

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

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filed with the Court, trial, deposition, and hearing transcripts, correspondence, deposition and

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

NON-TERMINATION AND RETURN OF DOCUMENTS

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even if such materials contain confidential material. The confidentiality obligations imposed by

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this agreement shall remain in effect until a designating party agrees otherwise in writing or a

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court orders otherwise.

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Pursuant to the parties’ stipulation (Dkt. No. 69), it is so ORDERED. It is further

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ORDERED that pursuant to Federal Rule of Evidence 502(d), the production of any documents

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

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other court, constitute a waiver by the producing party of any privilege applicable to those

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documents, including the attorney-client privilege, attorney work-product protection, or any

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other privilege or protection recognized by law.

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DATED this 30th day of January 2018.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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STIPULATED PROTECTIVE ORDER
C17-0144-JCC
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