Cen Com, Inc v. Numerex Corp et al

Filing 19

STIPULATED PROTECTIVE ORDER; re parties' 17 Stipulation, by Judge Ricardo S Martinez. (SWT)

THE HONORABLE RICARDO S. MARTINEZ

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CEN COM, INC., a Washington Corporation
doing business as American Digital
Monitoring,

v.

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STIPULATED PROTECTIVE ORDER

Plaintiff,

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Case No.: 2:17-cv-00560-RSM

NUMEREX CORP., a Pennsylvania
Corporation; NextAlarm, LLC, a Georgia
Limited Liability Company; and DOES 1-10,
Defendants.

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PURPOSES AND LIMITATIONS

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

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

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hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The

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parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket

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

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

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treatment under the applicable legal principles, and it does not presumptively entitle parties to file

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confidential information under seal.

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2.

“CONFIDENTIAL” MATERIAL

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

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produced or otherwise exchanged: the financial information of the parties and their subsidiaries;

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the personnel files of the parties and their subsidiaries.

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3.

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or items marked “Attorneys’ Eyes Only” shall include documents and tangible

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things produced or otherwise exchanged between the parties, or obtained by nonparties, which is

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of a highly sensitive nature, the disclosure of which, either to an opposing party or other person,

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would be detrimental to the designating party. This specifically includes, but is not limited to: the

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trade secrets of the parties, the customer lists of the parties, the personal information of their

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customers or clients, the marketing or product-development strategies of the parties, the parties’

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dispatching protocols or procedures, and any and all information relating to Numerex’s acquisition

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of NextAlarm.

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4.

SCOPE

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The protections conferred by this agreement cover not only material designated

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confidential or as attorneys’ eyes only (as defined above), but also (1) any information copied or

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extracted from material designated confidential or as attorneys’ eyes only; (2) all copies, excerpts,

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summaries, or compilations of material designated confidential or as attorneys’ eyes only; and

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(3) any testimony, conversations, or presentations by parties or their counsel that might reveal

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material designated confidential or as attorneys’ eyes only. However, the protections conferred

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by this agreement do not cover information that is in the public domain or becomes part of the

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public domain through trial or otherwise.

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5.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
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Basic Principles. A receiving party may use confidential 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. 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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5.2

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;

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

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receiving party to whom disclosure is reasonably necessary for this litigation, unless a party

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designates a particular document, material, or information as Attorney’s Eyes Only;

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(c) experts and consultants to whom disclosure is reasonably necessary for this

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

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(d) the court, court personnel, and court reporters and their staff;

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

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confidential material, provided that counsel for the party retaining the copy or imaging service

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instructs the service not to disclose any confidential material to third parties and to immediately

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return all originals and copies of any confidential material;

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(f) 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 confidential 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 agreement; and
(g) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information.
5.3

Disclosure of information marked “Attorneys’ Eyes Only.” Unless otherwise

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ordered by the court or permitted in writing by the designating party, a receiving party may disclose

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any information or item designated “Attorneys’ Eyes Only” only to:

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(a) the receiving party’s outside counsel of record in this action, as well as

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

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litigation;
(b) Experts (1) to whom disclosure is reasonably necessary for this litigation and

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(2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) the court and its personnel;

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(d) court reporters and their staff, provided that counsel for the party that retained

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the court reporter or court reporting service instructs the same not to disclose any material that is

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the subject of this protective order and further instructs the same to return all originals and copies

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of any protected material upon the completion of any court reporting service;

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

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material that is subject to an attorneys’ eyes only designation, provided that counsel for the party

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retaining the copy or imagining service instructs the service not to disclose the same to third parties

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and to immediately return all originals and copies of any confidential material; and
(f) the author of the document or the original source of the information.

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5.4

Filing Confidential Material. Before filing confidential 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 the

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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 standards

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

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6.

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DESIGNATING PROTECTED MATERIAL
6.1

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 swept

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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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unnecessarily encumber or delay the case development process or to impose unnecessary expenses

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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 for

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protection do not qualify for protection, the designating party must promptly notify all other parties

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that it is withdrawing the mistaken designation.

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6.2

Manner and Timing of Designations.

Except as otherwise provided in this

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agreement, or as otherwise stipulated or ordered, disclosure of discovery material that qualifies for

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protection under this agreement must be clearly so designated before or when the material is

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disclosed or produced as described below:

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

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

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the designating party must affix the word “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”

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to each page that contains confidential material. If only a portion or portions of the material on a

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page qualifies for protection, the producing party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

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(b) Testimony given in deposition or in other pretrial or trial proceedings: the

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parties must identify on the record, during the deposition, hearing, or other proceeding, all

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protected testimony, without prejudice to their right to so designate other testimony after reviewing

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the transcript. Any party or non-party may, within fifteen days after receiving a deposition

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transcript, designate portions of the transcript, or exhibits thereto, as confidential or designate the

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same as “Attorney’s Eyes Only.”

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

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

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” If only a portion or portions of the

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information or item warrant protection, the producing party, to the extent practicable, shall identify

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the protected portion(s).
6.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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

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right to 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 treated

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in accordance with the provisions of this agreement.

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7.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

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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7.2

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

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regarding confidential designations without court involvement.

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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 conference

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

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

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a face-to-face meeting or a telephone conference.
7.3

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Any motion regarding

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 Local

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

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

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8.

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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” or
“ATTORNEYS’ EYES ONLY” 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 this agreement. Such notification shall include a copy of this agreement; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
designating party whose confidential material may be affected.

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9.

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 the designating party in writing of the unauthorized disclosures,

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(b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of this agreement,

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and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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10.

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

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. Parties shall confer on an
appropriate non-waiver order under Fed. R. Evid. 502.
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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, and material designated as attorneys’ eyes only, 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 material designated confidential for attorneys’ eyes only.
The confidentiality obligations imposed by this agreement shall remain in effect until a
designating party agrees otherwise in writing or a court orders otherwise.

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IT IS SO STIPULATED THIS 22ND DAY OF JUNE 2017.

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McDougald & Cohen, P.S.

STOKES LAWRENCE, P.S.

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By: s/Shannon L. McDougald
By: s/Trent M. Latta
Shannon L. McDougal (WSBA #24231)
Trent M. Latta (WSBA #42360)
McDougald & Cohen, P.S.
1411 Fourth Avenue, Suite 200
Seattle, WA 98101
[phone]
Fax: [phone]
[e-mail]
[e-mail]

By: s/Mathew L. Harrington
By: s/Jacob A. Zuniga
Mathew L. Harrington (WSBA #33276)
Jacob A. Zuniga (WSBA #48458)
Stokes Lawrence, P.S.
1420 Fifth Avenue, Suite 3000
Seattle, WA 98101
[phone]
Fax: [phone]
[e-mail]
JAZ @stokeslaw.com

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Attorneys for Plaintiff Cen Com, Inc.

Attorneys for Defendants Numerex Corp. and
NextAlarm, LLC

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: June 26, 2017

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

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[print or type full name], of

[print or type full address], declare under

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

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

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2:17-cv-00560-RSM [insert formal name of the case and the

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number and initials assigned to it by the court]. I agree to comply with and to be bound by all

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the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I solemnly

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

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

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provisions of this Order.
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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