Kalmbach v. National Rifle Association of America et al

Filing 45

STIPULATED PROTECTIVE ORDER re parties' #42 Stipulated MOTION for Entry of Protective Order signed by Judge Ricardo S Martinez. (TH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
KATHARYN KALMBACH, individually and )
on behalf of all others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
NATIONAL RIFLE ASSOCIATION OF
)
AMERICA, a New York Corporation, and
)
INFOCISION, INC. d/b/a InfoCision
)
Management Corporation, a Delaware
)
Corporation,
)
)
Defendants.
)
)

Case No. 2:17-cv-00399-RSM
STIPULATED PROTECTIVE ORDER

Plaintiff Katharyn Kalmbach and Defendants National Rifle Association of America and
InfoCision, Inc. have stipulated, and for good cause, the Court hereby ORDERS as follows:
1.

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

private information for which special protection may be warranted. Accordingly, the parties hereby
stipulate to and petition the court to enter the following Stipulated Protective Order. The parties
acknowledge that this Stipulated Protective Order is consistent with LCR 26(c). It does not confer
blanket protection on all disclosures or responses to discovery, the protection it affords from public
disclosure and use extends only to the limited information or items that are entitled to confidential

treatment under the applicable legal principles, and it does not presumptively entitle parties to file
confidential information under seal.
2.

“CONFIDENTIAL” MATERIAL
“Confidential” material shall include the following documents (which, for purposes of this

Stipulated Protective Order, includes both paper and electronic files) and tangible things that may
be produced or otherwise exchanged: employee training materials; call scripts; descriptions or
diagrams of dialing or other call technology; contracts with clients, vendors, suppliers, donors, or
members; client, member, or donor information; call recordings or transcripts; strategic plans; call
data; non-public financial information, including, but not limited to, financial statements, tax
returns, and financial projections; personally identifiable information, including, but not limited
to, names, account numbers, phone numbers, email addresses, mailing addresses, and social
security numbers; software coding; and database/system architecture. The parties reserve the right
to designate additional categories of confidential materials based on the scope of the discovery
requests issued in this matter. Notwithstanding the foregoing or anything in this Stipulated
Protective Order to the contrary, the parties reserve their respective rights to challenge any
discovery request or the discoverability of any document or information, including, but not limited
to, disclosure of membership lists. See NAACP v. Alabama, 357 U.S. 449 (1958).
3.

SCOPE
3.1

Basic Principles. The protections conferred by this Stipulated Protective Order

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

3.2

Redacting Putative Class Data. The parties agree that Defendants will redact details

by which individual class members can be identified as specific individuals. Instead, to the extent
that is reasonably feasible, Defendants will summarize or will produce data that describes
generally the magnitude of the putative class including, for example, the putative class members’
telephone area code and central office exchange (redacting the final four digits), and the date of
contact(s) with putative class members and other responsive and non-privileged information,
etc. Redacted data and/or summaries will be treated under the Stipulated Protective Order as
“Confidential” material. In exchange for Plaintiff’s agreeing to accept putative class data as
described above, Defendants will not challenge class certification based upon Plaintiff’s failing to
identify class members other than the named plaintiff. This paragraph is without any Parties' ability
to seek relief from this provision from the Court.
4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

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

or produced by another party or by a non-party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Confidential material may be disclosed only to the
categories of persons and under the conditions described in this Stipulated Protective Order.
Confidential material must be stored and maintained by a receiving party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Stipulated
Protective Order.
4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

by the court or permitted in writing by the designating party, a receiving party may disclose any
confidential material only to:
(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;
(b)

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

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

(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);
(d)

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

(e)

copy, imaging, or electronic-discovery services retained by counsel to assist

in the collection, storage, search, production, or duplication of confidential material, provided that
counsel for the party retaining such service instructs the service not to disclose any confidential
material to third parties and to immediately return all originals and copies of any confidential
material upon completion;
(f)

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

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal confidential material must
be separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order;
(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
to determine whether the designating party will remove the confidential designation, whether the
document can be redacted, or whether a motion to seal or stipulation and proposed order is
warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards
that will be applied when a party seeks permission from the court to file material under seal.
5.

DESIGNATING PROTECTED MATERIAL
5.1

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

or non-party that designates information or items for protection under this Stipulated Protective
Order must make reasonable efforts to limit any such designation to specific material that qualifies

under the appropriate standards. The designating party must designate for protection only those
parts of material, documents, items, or oral or written communications that qualify, so that other
portions of the material, documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this Stipulated Protective Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessarily encumber or delay the case development process or to impose unnecessary expenses
and burdens on other parties) expose the designating party to sanctions. If it comes to a designating
party’s attention that information or items that it designated for protection do not qualify for
protection, the designating party must promptly notify all other parties that it is withdrawing the
mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in this

Stipulated Protective Order (see, e.g., section 5.3 below), or as otherwise stipulated or ordered,
disclosure or discovery material that qualifies for protection under this Stipulated Protective Order
must be clearly so designated before or when the material is disclosed or produced.
(a)

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

deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
the designating party must affix the word “CONFIDENTIAL” to each page that contains
confidential material or, where that is not possible, by describing the document in writing with
sufficient specification to make the designation as confidential material clear, including by
describing the documents or information sought to be protected (by Bates number or similar
designation). If only a portion or portions of the material on a page qualifies for protection, the
producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b)

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

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

pretrial proceeding, all protected testimony, without prejudice to their right to so designate other
testimony after reviewing the transcript. Any party or non-party may, within 30 days after
receiving the transcript of the deposition or other pretrial proceeding, designate portions of the
transcript, or exhibits thereto, as confidential. If, however, a document had been designated a
confidential material before a deposition or other pretrial proceeding, it shall not lose any such
protection merely by being introduced as an exhibit in such deposition or proceeding, and the
designating party need not re-designate the exhibit as confidential material. If a party or nonparty desires to protect confidential information at trial, the issue should be addressed during the
pre-trial conference. Until the 30-day period for designation expires, the entire deposition
transcript and all exhibits must be treated as if they had been designated as confidential material.
(c)

Other tangible items: the producing party must either: (1) describe the item

in writing with sufficient specification to make the designation as confidential material clear,
including by describing the specific aspects or portions of the item sought to be designated as
confidential material; or (2) affix in a prominent place on the exterior of the container or containers
in which the information or item is stored the word “CONFIDENTIAL.” If only a portion or
portions of the information or item warrant protection, the producing party, to the extent
practicable, shall identify the protected portion(s).
5.3

Failures to Designate. If a party inadvertently, erroneously, or otherwise fails to

designate qualified information or items, that failure does not waive the designating party’s right
to secure protection under this Stipulated Protective Order for such material, provided that party
timely designates such material as provided in Section 5.2 above after learning of the failure to so
designate. Upon correction of a designation, the receiving party must make reasonable efforts to
ensure that the material is treated in accordance with the provisions of this Stipulated Protective
Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

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

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

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

regarding confidential designations without court involvement. Any motion regarding confidential
designations or for a protective order must include a certification, in the motion or in a declaration
or affidavit, that the movant has engaged in a good faith meet and confer conference with other
affected parties in an effort to resolve the dispute without court action. The certification must list
the date, manner, and participants to the conference. A good faith effort to confer requires a faceto-face meeting or a telephone conference.
6.3

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

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

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a party is served with a subpoena or a court order issued in other litigation that compels

disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
must:

(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

issue in the other litigation that some or all of the material covered by the subpoena or order is
subject to Stipulated Protective Order. Such notification shall include a copy of this Stipulated
Protective Order; and
(c)

cooperate with respect to all reasonable procedures sought to be pursued by

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the receiving party must immediately (a) notify in writing the designating party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected
material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
terms of this Stipulated Protective Order, and (d) request that such person or persons execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
9.

PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
When a producing party gives notice to receiving parties that certain material produced

inadvertently, erroneously, or otherwise 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 Fed. R. Evid. 502(d) as set forth herein.
10.

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.
The confidentiality obligations imposed by this Stipulated Protective 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: February 23, 2018

/s/ Steven L. Woodrow (per email consent)
Tousley Brain Stephens PLLC
Kim D. Stephens
Chase Christian Alvord
1700 7th Avenue, Suite 2200
Seattle, WA 98101-4416
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Law Offices of Stefan Coleman, P.S.
Stefan Coleman
Adam T. Savett
201 S. Biscayne Blvd., 28th Floor
Miami, FL 33131
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Woodrow & Peluso, LLC
Steven L. Woodrow

Patrick H. Peluso
3900 E. Mexico Avenue, Suite 300
Denver, CO 80210
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff Katharyn Kalmbach
and the alleged class
DATED: February 23, 2018

/s/Michael D. Meuti______________
Baker Hostetler LLP
Curt Roy Hineline, WSBA #16317
James R. Morrison, WSBA #43043
999 Third Avenue, Suite 3600
Seattle, WA 98104-4040
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Terry M. Brennan (admitted pro hac vice)
Michael D. Meuti (admitted pro hac vice)
127 Public Square, Suite 2000
Cleveland, OH 44114
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Defendants National Rifle
Association of America and InfoCision,
Inc.

PURSUANT TO STIPULATION, IT IS SO ORDERED
IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any
documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding
in any other court, constitute a waiver by the producing party of any privilege applicable to those

documents, including the attorney-client privilege, attorney work-product protection, or any other
privilege or protection recognized by law.

DATED: March 12, 2018.

A
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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 Kalmbach v. National Rifle Association of America, et al., Case No. 2:17-cv-00399-RSM.
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: