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)

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: [phone]  Fax: [phone]

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: [phone]  Fax: [phone]

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: [phone]  Fax: [phone]

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: [phone]  Fax: [phone]

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: [phone]  Fax: [phone]

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: [phone]  Fax: [phone]

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: [phone]  Fax: [phone]

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
[e-mail]
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: [phone]  Fax: [phone]

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: [phone]
[e-mail]
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: [phone]  Fax: [phone]