Astley v. The Boeing Company et al

Filing 23

STIPULATED PROTECTIVE ORDER re: 22 Stipulated MOTION for Protective Order signed by Judge Marsha J. Pechman. (PM)

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1 The Honorable Marsha J. Pechman 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 RYAN ASTLEY, 10 Plaintiff, 11 No. 2:17-cv-592-MJP STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER v. AND 12 THE BOEING COMPANY, et al., PROPOSED PROTECTIVE ORDER 13 Defendants. Noting Date: December 5, 2017 14 15 1. 16 17 18 19 20 21 22 23 24 25 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 agreement 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 and tangible things 26 STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 1 1 produced or otherwise exchanged: financial information, confidential Boeing policies and 2 procedures, personnel information concerning individuals not party to this action, documents 3 concerning proprietary information and technology, and other similar documents (as applicable) , 4 as well as Plaintiff’s medical records and other protected health information (as applicable). 5 3. SCOPE 6 The protections conferred by this agreement cover not only confidential material (as 7 defined above), but also (1) any information copied or extracted from confidential material; (2) all 8 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 9 conversations, or presentations by parties or their counsel that might reveal confidential material. 10 However, the protections conferred by this agreement do not cover information that is in the public 11 domain or becomes part of the public domain through trial or otherwise. 12 4. 13 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 14 or produced by another party or by a non-party in connection with this case only for prosecuting, 15 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 16 categories of persons and under the conditions described in this agreement. Confidential material 17 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 18 that access is limited to the persons authorized under this agreement. 19 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 20 by the court or permitted in writing by the designating party, a receiving party may disclose any 21 confidential material only to: 22 23 24 25 26 (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) a party, 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 STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 2 1 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 2 which includes each such person’s clerical and support staff; 3 (d) the court, court personnel, and court reporters and their staff; 4 (e) copy or imaging services retained by counsel to assist in the duplication of 5 confidential material, provided that counsel for the party retaining the copy or imaging service 6 instructs the service not to disclose any confidential material to third parties and to immediately 7 return all originals and copies of any confidential material; 8 (f) witnesses or potential witnesses in the action to whom disclosure is 9 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 10 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 11 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 12 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 13 under this agreement; 14 15 (g) custodian or other person who otherwise possessed or knew the information. 16 17 (h) (i) any mediator or discovery referee in this litigation, and employees and personnel of said mediator or discovery referee; 20 21 the videographer who videotapes Confidential Information at a deposition in this litigation; 18 19 the author or recipient of a document containing the information or a (j) 4.3 any other individuals agreed to in writing by the designating party. Filing Confidential Material. Before filing confidential material or discussing or 22 referencing such material in court filings, the filing party shall confer with the designating party 23 to determine whether the designating party will remove the confidential designation, whether the 24 document can be redacted, or whether a motion to seal or stipulation and proposed order is 25 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards 26 that will be applied when a party seeks permission from the court to file material under seal. STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 3 1 2 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 3 or non-party that designates information or items for protection under this agreement must take 4 care to limit any such designation to specific material that qualifies under the appropriate 5 standards. The designating party must designate for protection only those parts of material, 6 documents, items, or oral or written communications that qualify, so that other portions of the 7 material, documents, items, or communications for which protection is not warranted are not swept 8 unjustifiably within the ambit of this agreement. 9 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 10 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 11 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 12 and burdens on other parties) expose the designating party to sanctions. 13 If it comes to a designating party’s attention that information or items that it designated for 14 protection do not qualify for protection, the designating party must promptly notify all other parties 15 that it is withdrawing the mistaken designation. 16 5.2 Manner and Timing of Designations. Except as otherwise provided in this 17 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 18 ordered, disclosure or discovery material that qualifies for protection under this agreement must 19 be clearly so designated before or when the material is disclosed or produced. 20 (a) Information in documentary form: (e.g., paper or electronic documents and 21 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 22 the designating party must affix the word “CONFIDENTIAL” to each page that contains 23 confidential material. If only a portion or portions of the material on a page qualifies for protection, 24 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 25 markings in the margins). 26 (b) Testimony given in deposition or in other pretrial proceedings: the parties STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 4 1 and any participating non-parties must identify on the record, during the deposition or other pretrial 2 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 3 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 4 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 5 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 6 at trial, the issue should be addressed during the pre-trial conference. 7 (c) Other tangible items: the producing party must affix in a prominent place 8 on the exterior of the container or containers in which the information or item is stored the word 9 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 10 the producing party, to the extent practicable, shall identify the protected portion(s). 11 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 12 designate qualified information or items does not, standing alone, waive the designating party’s 13 right to secure protection under this agreement for such material. Upon timely correction of a 14 designation, the receiving party must make reasonable efforts to ensure that the material is treated 15 in accordance with the provisions of this agreement. 16 6. 17 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party may challenge a designation of confidentiality at 18 any time. Unless a prompt challenge to a designating party’s confidentiality designation is 19 necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a 20 significant disruption or delay of the litigation, a party does not waive its right to challenge a 21 confidentiality designation by electing not to mount a challenge promptly after the original 22 designation is disclosed. 23 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 24 regarding confidential designations without court involvement. Any motion regarding confidential 25 designations or for a protective order must include a certification, in the motion or in a declaration 26 or affidavit, that the movant has engaged in a good faith meet and confer conference with other STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 5 1 affected parties in an effort to resolve the dispute without court action. The certification must list 2 the date, manner, and participants to the conference. A good faith effort to confer requires a face- 3 to-face meeting or a telephone conference. 4 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 5 intervention, the designating party may file and serve a motion to retain confidentiality under Local 6 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 7 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 8 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 9 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 10 the material in question as confidential until the court rules on the challenge. 11 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 12 LITIGATION 13 If a party is served with a subpoena or a court order issued in other litigation that compels 14 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 15 must: 16 17 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; 18 (b) promptly notify in writing the party who caused the subpoena or order to issue in 19 the other litigation that some or all of the material covered by the subpoena or order is subject to 20 this agreement. Such notification shall include a copy of this agreement; and 21 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 22 designating party whose confidential material may be affected. 23 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 25 material to any person or in any circumstance not authorized under this agreement, the receiving 26 party must immediately (a) notify in writing the designating party of the unauthorized disclosures, STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 6 1 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 2 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 3 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 4 Bound” that is attached hereto as Exhibit A. 5 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 6 MATERIAL 7 Nothing in this Order shall be deemed to be a limit or waiver of the attorney-client 8 privilege, the work product doctrine, or any other relevant privilege. Further, inadvertent 9 production of privileged information shall not waive the privilege. If privileged information is 10 inadvertently produced, the recipient agrees that, upon request from the producing party, it shall 11 promptly return or sequester all copies of documents containing the privileged information, delete 12 any versions of the documents containing the privileged information on any database or computer 13 filing system it maintains, and make no use of the privileged information in accordance with FRCP 14 26(b)(5)(B). The receiving party may promptly present the information to the court under seal for 15 a determination of the claim. The producing party must preserve the information until the claim is 16 resolved. 17 10. NON TERMINATION AND RETURN OF DOCUMENTS 18 Within 60 days after the termination of this action, including all appeals, each receiving 19 party must return all confidential material to the producing party, including all copies, extracts and 20 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 21 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 22 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 23 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 24 product, even if such materials contain confidential material. 25 26 Each party’s counsel may maintain the complete client file for up to six years as recommended by the WSBA Guide to Best Practices for Client File Retention and Management. STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 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 Dated: December 5, 2017 OWEN LAW GROUP PLLC By: s/ Vanessa M. Vanderbrug (w/ permission) Vanessa M. Vanderbrug, WSBA No. 31688 James M. Owen, Jr., WSBA No. 29247 Attorneys for Plaintiff Ryan Astley 5 6 7 8 9 Dated: December 5, 2017 FOX ROTHSCHILD LLP By: s/ Laurence A. Shapero Laurence A. Shapero, WSBA No. 31301 Attorneys for Defendant The Boeing Company 10 11 12 13 Dated: December 5, 2017 14 MORGAN, LEWIS & BOCKIUS, LLP By: s/ Matthew J. Sharbaugh Matthew J. Sharbaugh (pro hac vice) Melinda S. Riechert (pro hac vice) Attorneys for Defendant The Boeing Company 15 16 17 18 19 20 PURSUANT TO STIPULATION, IT IS SO ORDERED. Dated: December 6, 2017 21 22 24 A 25 Marsha J. Pechman United States District Judge 23 26 STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROTECTIVE ORDER (17-cv-592-MJP)- 8 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, [print or type full name], of 4 [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was issued by the 6 United States District Court for the Western District of Washington on _____________ [insert 7 date] in the case Ryan Astley v. The Boeing Company, No. 2:17-cv-592-MJP. I agree to comply 8 with and to be bound by all the terms of this Stipulated Protective Order and I understand and 9 acknowledge that failure to so comply could expose me to sanctions and punishment in the nature 10 of contempt. I solemnly promise that I will not disclose in any manner any information or item 11 that is subject to this Stipulated Protective Order to any person or entity except in strict compliance 12 with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 17 Date: 18 19 City and State where sworn and signed: 20 21 Printed name: 22 23 Signature: 24 25 26 STIPULATED MOTION FOR ENTRY OF PROTECTIVE ORDER AND PROPOSED PROTECTIVE ORDER (17-cv-592-MJP)- 9 1 CERTIFICATE OF SERVICE 2 I hereby certify that a true and correct copy of the foregoing document was filed with the 3 Court’s CM/ECF system on December 5, 2017, which will provide notification to the following 4 counsel of record: 5 6 7 8 9 10 Vanessa M. Vanderbrug, WSBA No. 31688 James M. Owen, Jr., WSBA No. 29247 OWEN LAW GROUP PLLC 1001 Fourth Avenue, Suite 3200 Seattle, WA 98154 Phone: 206-467-1400 Fax: 299-9328 Email 11 12 Attorneys for Plaintiff 13 By: s/ Matthew J. Sharbaugh Matthew J. Sharbaugh (pro hac vice) 14 15 16 17 18 19 20 21 22 23 24 25 26 DB2/ 32272569

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