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)

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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: (206) 667-0249 Fax: (206) 682-2992 kstephens@tousley.com calvord@tousley.com Law Offices of Stefan Coleman, P.S. Stefan Coleman Adam T. Savett 201 S. Biscayne Blvd., 28th Floor Miami, FL 33131 Tel: (877) 333-9427 Fax: (888) 498-8946 law@stefancoleman.com adam@stefancoleman.com Woodrow & Peluso, LLC Steven L. Woodrow Patrick H. Peluso 3900 E. Mexico Avenue, Suite 300 Denver, CO 80210 Tel: (720) 213-0675 Fax: (303) 927-0809 swoodrow@woodrowpeluso.com ppeluso@woodrowpeluso.com 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: (206) 332-1380 Fax: (206) 624-7317 E-mail: chineline@bakerlaw.com jmorrison@bakerlaw.com Terry M. Brennan (admitted pro hac vice) Michael D. Meuti (admitted pro hac vice) 127 Public Square, Suite 2000 Cleveland, OH 44114 Tel: (216) 621-0200 Fax: (216) 696-0740 E-mail: tbrennan@bakerlaw.com mmeuti@bakerlaw.com 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:

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