Liu v. Kell

Filing 43

ORDER granting in part and denying in part Plaintiff's #37 Motion for Protective Order signed by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LI LIU,

CASE NO. C17-0640-JCC

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Plaintiff,

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ORDER

v.
KEEGAN KELL,

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Defendant.

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This matter comes before the Court on Plaintiff’s motion for a protective order (Dkt. No.

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37). Having thoroughly considered the parties’ briefing and the relevant record, the Court

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GRANTS the motion in part and DENIES the motion in part.

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Defendant seeks certain financial information from Plaintiff to assist in his defense to

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Plaintiff’s action seeking enforcement of her I-864 support obligation. (Dkt. No. 40 at 1–2.)

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Namely, Defendant seeks Plaintiff’s Free Application for Federal Student Aid (“FAFSA”)

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application, PayPal transaction history, bank statements, and food assistance applications. (Dkt.

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No. 37 at 6.) Plaintiff agrees the information is discoverable. (Dkt. No. 41 at 2.) But she believes

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Defendant will misuse this information. (Id. at 2–4.) Plaintiff sought a stipulated protective

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order, which Defendant refused to provide. (Id.) Plaintiff now moves the Court for a protective

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order precluding disclosure of the information described above for purposes outside of this

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dispute. (See Dkt. No. 37-2.)
ORDER
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A party or any person from whom discovery is sought may move
for a protective order in the court where the action is pending -- or
as an alternative on matters relating to a deposition, in the court for
the district where the deposition will be taken . . . The court may,
for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.

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Fed. R. Civ. P. 26(c).

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Plaintiff “has the burden of proving ‘good cause,’ which requires a showing that specific

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prejudice or harm will result if the protective order is not granted.” In re Roman Catholic

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Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011). Plaintiff has demonstrated

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good cause for entering the order Plaintiff seeks, but only to the extent Defendant does not have

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a disclosure obligation for that information. See Phillips Estates of Byrd v. Gen. Motors Corp.,

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307 F.3d 1206, 1211 (9th Cir. 2002) (the Court must balance “the public and private interests to

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decide whether a protective order is necessary.”).

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For the foregoing reasons, the Court GRANTS Plaintiff’s motion (Dkt. No. 37) in part

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and DENIES the motion in part. The Clerk is DIRECTED to enter the protective order below.

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The discovery period for the documents referenced in the order, see infra section 2, is

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EXTENDED as necessary for Plaintiff to produce the documents, but not for any other purpose.

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The Court DENIES Plaintiff’s request for attorney fees. (Dkt. No. 37 at 7.) The parties

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reasonably dispute whether Plaintiff has shown good cause for a protective order. As such, an

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award of fees would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(iii).

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ORDER
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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 Court enters

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the following Protective Order. This Order is consistent with Local Civil Rule 26(c). It does not

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confer blanket protection on all disclosures or responses to discovery, the protection it affords

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

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to confidential treatment under the applicable legal principles, and it does not presumptively

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entitle parties to file 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: all Free Application for Federal Student Aid (FAFSA)

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applications signed by Plaintiff; Plaintiff’s applications for food assistance; and Plaintiff’s

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PayPal transaction history and bank statements (including those jointly held with Plaintiff’s

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husband Adam Higley).

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3.

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The protections conferred by this agreement cover not only confidential material (as

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defined above), but also (1) any information copied or extracted from confidential material; (2)

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all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,

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conversations, or presentations by parties or their counsel that might reveal confidential material.

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However, the protections conferred by this agreement do not cover information that in the

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public domain or that which becomes part of the public domain through trial or otherwise.

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4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

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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4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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disclose any confidential material only to:

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(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, unless the parties

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agree that a particular document or material produced is for Attorney’s Eyes Only and is so

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designated;

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(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);

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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 reasonably

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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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;

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(g)

the author or recipient of a document containing the information or a custodian or

other person who otherwise possessed or knew the information; and
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(h)

any Federal or State agency for which a party has a reporting obligation.

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4.3

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

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standards that will be applied when a party seeks permission from the Court to file material

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under seal.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

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swept 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

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expenses 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

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

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parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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agreement, see infra second paragraph of section 5.2(a), or as otherwise stipulated or ordered,

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disclosure or discovery material that qualifies for protection under this agreement must be clearly
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so designated before or when the material is disclosed or produced.
(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” to each page that contains

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confidential material. If only a portion or portions of the material on a page qualifies for

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protection, the producing party also must clearly identify the protected portion(s) (e.g., by

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making appropriate markings in the margins).

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(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

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proceeding, all protected testimony, without prejudice to their right to so designate other

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testimony after reviewing the transcript. Any party or non-party may, within fifteen days after

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receiving the transcript of the deposition or other pretrial proceeding, designate portions of the

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transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect

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confidential information at trial, the issue should be addressed during the pre-trial conference.

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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.” If only a portion or portions of the information or item warrant protection,

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the producing party, to the extent practicable, shall identify the protected portion(s).

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5.3

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

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treated in accordance with the provisions of this agreement.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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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6.2

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

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regarding confidential designations without court involvement. Any motion regarding

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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

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

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

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confer requires a face-to-face meeting or a telephone conference.

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6.3

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

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Local 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

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maintain the material in question as confidential until the Court rules on the challenge.

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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

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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that

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party must:

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(a)

promptly notify the designating party in writing and include a copy of the

subpoena or court order;
(b)
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promptly notify in writing the party who caused the subpoena or order to issue in

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the other litigation that some or all of the material covered by the subpoena or order is subject to

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this agreement. Such notification shall include a copy of this agreement; and

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(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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8.

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 in writing the designating party of the unauthorized

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

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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of

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this agreement, and (d) request that such person or persons execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL
When a producing party gives notice to receiving parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order or agreement that provides for production without prior privilege review. The parties

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agree to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.

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10.

NON TERMINATION AND RETURN OF DOCUMENTS

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Within 60 days after the termination of this action, including all appeals, each receiving

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party must return all confidential material to the producing party, including all copies, extracts

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and summaries thereof. Alternatively, the parties may agree upon appropriate methods of

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destruction.

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Notwithstanding this provision, counsel are entitled to retain one archival copy of all
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documents filed with the Court, trial, deposition, and hearing transcripts, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain confidential material.

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The confidentiality obligations imposed by this agreement shall remain in effect until a
designating party agrees otherwise in writing or a court orders otherwise.
IT IS FURTHER ORDERED that pursuant to Federal Rule of Evidence 502(d), the

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production of any documents in this proceeding shall not, for the purposes of this proceeding or

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any other proceeding in any other court, constitute a waiver by the producing party of any

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privilege applicable to those documents, including the attorney-client privilege, attorney work-

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product protection, or any other privilege or protection recognized by law.
DATED this 23rd day of January 2018.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
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I, ______________of __________________, declare under penalty of perjury that I have
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read in its entirety and understand the Stipulated Protective Order that was issued by the United
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States District Court for the Western District of Washington on ______________, in the case of
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Li Liu v. Keegan Kell, No. C17-0640-JCC. I agree to comply with and to be bound by all the
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terms of this Protective Order and I understand and acknowledge that failure to so comply could
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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
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not disclose in any manner any information or item that is subject to this Stipulated Protective
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Order to any person or entity except in strict compliance with the provisions of this Order.
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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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ORDER
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