Pearce v. Irwin Naturals et al

Filing 15

STIPULATED PROTECTIVE ORDER re parties' 14 Stipulated MOTION for Protective Order, signed by Judge Thomas S. Zilly. (SWT)

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1 HONORABLE THOMAS S. ZILLY 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 THOMAS PEARCE, 11 Plaintiff 12 13 14 v. NO. 2:17-CV-00630 TSZ STIPULATED PROTECTIVE ORDER IRWIN NATURALS, registered in the State of Nevada as a Domestic Corporation; and a California State Foreign company, doing business in Washington State, 15 Defendant. 16 And 17 VITAMIN SHOPPE, INC. (“The Parent”), and VITAMIN SHOPPE INDUSTRIES, INC. (the “Company”), a New Jersey based corporation dba SUPER SUPPLEMENTS, in the State of Washington, 18 19 20 Defendant. 21 22 STIPULATED PROTECTIVE ORDER - 1 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 1. 2 PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or 3 private information for which special protection may be warranted. Accordingly, the parties 4 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The 5 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 6 disclosure and use extends only to the limited information or items that are entitled to 7 confidential treatment under the applicable legal principles, and it does not presumptively entitle 8 parties to file confidential information under seal. 9 2. “CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things 10 11 produced or otherwise exchanged: Plaintiff’s medical records; any information; material or 12 13 document that constitutes or reveals a trade secret; financial; proprietary or commercial information; specifically including Serious Adverse Event Reports (SAERs) and Adverse Event Reports (AERs); proprietary formula data; and the contract between the defendants. 14 3. 15 SCOPE The protections conferred by this agreement cover not only confidential material (as 16 defined above), but also (1) any information copied or extracted from confidential material; (2) 17 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 18 conversations, or presentations by parties or their counsel that might reveal confidential material. However, the protections conferred by this agreement do not cover information that is in 19 the public domain or becomes part of the public domain through trial or otherwise. 20 4. 21 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 22 or produced by another party or by a non-party in connection with this case only for prosecuting, STIPULATED PROTECTIVE ORDER - 2 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 defending, or attempting to settle this litigation. Confidential material may be disclosed only to 2 the categories of persons and under the conditions described in this agreement. Confidential 3 material must be stored and maintained by a receiving party at a location and in a secure manner 4 that ensures that access is limited to the persons authorized under this agreement. 4.2 5 6 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: 7 8 (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; 9 (b) the officers, directors, and employees (including in house counsel) of the 10 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 11 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 12 13 14 designated; (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); 15 (d) the court, court personnel, and court reporters and their staff; 16 (e) copy or imaging services retained by counsel to assist in the duplication of 17 confidential material, provided that counsel for the party retaining the copy or imaging service 18 instructs the service not to disclose any confidential material to third parties and to immediately 19 return all originals and copies of any confidential material; (f) 20 21 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 22 transcribed deposition testimony or exhibits to depositions that reveal confidential material must STIPULATED PROTECTIVE ORDER - 3 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 2 under this agreement; 3 (g) the author or recipient of a document containing the information or a 4 custodian or other person who otherwise possessed or knew the information. 4.3 5 6 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 7 8 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 9 standards that will be applied when a party seeks permission from the court to file material under 10 seal. 11 5. 12 13 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 agreement must take care to limit any such designation to specific material that qualifies under the appropriate 14 standards. The designating party must designate for protection only those parts of material, 15 documents, items, or oral or written communications that qualify, so that other portions of the 16 material, documents, items, or communications for which protection is not warranted are not 17 swept unjustifiably within the ambit of this agreement. 18 19 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 20 expenses and burdens on other parties) expose the designating party to sanctions. 21 22 STIPULATED PROTECTIVE ORDER - 4 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 If it comes to a designating party’s attention that information or items that it designated 2 for protection do not qualify for protection, the designating party must promptly notify all other 3 parties that it is withdrawing the mistaken designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this 5 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, disclosure or discovery material that qualifies for protection under this agreement must 6 be clearly so designated before or when the material is disclosed or produced. 7 (a) Information in documentary form: (e.g., paper or electronic documents 8 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial 9 proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that 10 contains confidential material. If only a portion or portions of the material on a page qualifies for 11 protection, the producing party also must clearly identify the protected portion(s) (e.g., by 12 13 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 14 pretrial proceeding, all protected testimony, without prejudice to their right to so designate other 15 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after 16 receiving the transcript of the deposition or other pretrial proceeding, designate portions of the 17 transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect 18 confidential information at trial, the issue should be addressed during the pre-trial conference. 19 (c) Other tangible items: the producing party must affix in a prominent place on the exterior of the container or containers in which the information or item is stored the word 20 21 “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). 22 STIPULATED PROTECTIVE ORDER - 5 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 2 designate qualified information or items does not, standing alone, waive the designating party’s 3 right to secure protection under this agreement for such material. Upon timely correction of a 4 designation, the receiving party must make reasonable efforts to ensure that the material is 5 treated in accordance with the provisions of this agreement. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 7 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 8 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 9 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 10 challenge a confidentiality designation by electing not to mount a challenge promptly after the 11 original designation is disclosed. 12 13 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 14 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 15 conference with other affected parties in an effort to resolve the dispute without court action. The 16 certification must list the date, manner, and participants to the conference. A good faith effort to 17 confer requires a face-to-face meeting or a telephone conference. 18 19 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 20 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 21 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 22 STIPULATED PROTECTIVE ORDER - 6 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 other parties) may expose the challenging party to sanctions. All parties shall continue to 2 maintain the material in question as confidential until the court rules on the challenge. 3 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 4 LITIGATION If a party is served with a subpoena or a court order issued in other litigation that compels 5 6 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party must: 7 8 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or order to 10 issue in the other litigation that some or all of the material covered by the subpoena or order is 11 subject to this agreement. Such notification shall include a copy of this agreement; and (c) 12 13 cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. 8. 14 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 15 material to any person or in any circumstance not authorized under this agreement, the receiving 16 party must immediately (a) notify in writing the designating party of the unauthorized 17 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, 18 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 19 this agreement, and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 20 9. 21 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 22 STIPULATED PROTECTIVE ORDER - 7 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 When a producing party gives notice to receiving parties that certain inadvertently 2 produced material is subject to a claim of privilege or other protection, the obligations of the 3 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 4 provision is not intended to modify whatever procedure may be established in an e-discovery 5 6 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. 7 8 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 to the producing party, including all copies, extracts 9 and summaries thereof. Alternatively, the parties may agree upon appropriate methods of 10 destruction. 11 12 13 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. 14 The confidentiality obligations imposed by this agreement shall remain in effect until a 15 designating party agrees otherwise in writing or a court orders otherwise. 16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 17 LAW OFFICE OF CORNELIA CLARK 18 DATED: 7/27/2017 s/Cornelia Clark CORNELIA CLARK, WSBA #26824 321 Burnett Ave S., Suite 201 Renton, WA 98057 Attorneys for Plaintiff 19 20 21 ANDREWS SKINNER, P.S. 22 STIPULATED PROTECTIVE ORDER - 8 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050 1 DATED: 7/27/2017 2 3 4 s/Pamela M. Andrews PAMELA M. ANDREWS, WSBA #14248 645 Elliott Ave. W., Suite 350 Seattle, WA 98119 206-223-9248 | Fax: 206-623-9050 Attorneys for Defendant 5 PURSUANT TO STIPULATION, IT IS SO ORDERED 6 7 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 8 proceeding in any other court, constitute a waiver by the producing party of any privilege 9 applicable to those documents, including the attorney-client privilege, attorney work-product 10 protection, or any other privilege or protection recognized by law. 11 12 DATED this 14th day of August, 2017. A 13 14 Thomas S. Zilly United States District Judge 15 16 17 18 19 20 21 22 STIPULATED PROTECTIVE ORDER - 9 25 A n d r e w s  S k i n n e r, P. S . 645 Elliott Ave. W., Ste. 350 Seattle, WA 98119 Tel: 206-223-9248  Fax: 206-623-9050

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