Premera Blue Cross v. Winz et al

Filing 13

ORDER re 11 Stipulation filed by Premera Blue Cross by Hon. Brian A Tsuchida. (AE)

1
Honorable Brian A. Tsuchida
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10

PREMERA BLUE CROSS, a Washington nonprofit corporation,

11

Plaintiff,

12
13
14

v.
MARY WINZ; TRACIE LESAN; JOYCE
ARLENE NELSON (FORMERLY KNOWN
AS JOYCE ARLENE LESAN),

15

No. C17-695-BAT
MODEL STIPULATED
PROTECTIVE ORDER
NOTED ON MOTION CALENDAR:
JUNE 29, 2017

Defendants.

16
17
18
19
20
21
22
23
24
25

1.

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.

26
MODEL STIPULATED PROTECTIVE
ORDER - 1
Case No. C17-695-BAT

1

2.

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

2
3

produced or otherwise exchanged: Beneficiary designations and financial information related

4

to pension and 401(k) plans.

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;

8

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

9

testimony, conversations, or presentations by parties or their counsel that might reveal

10

confidential material. However, the protections conferred by this agreement do not cover

11

information that is in the public domain or becomes part of the public domain through trial or

12

otherwise.

13

4.

14

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

Basic Principles. A receiving party may use confidential material that is

15

disclosed or produced by another party or by a non-party in connection with this case or the

16

Related Cases, as defined herein, only for prosecuting, defending, or attempting to settle this

17

litigation or a Related Case. The “Related Cases” are In re Estate of Gerald Lesan, Case No.

18

17-4-00015-5 (Jefferson County Superior Court) (the “Probate Case”), and Joyce Lesan v.

19

Gerald Lesan, Case No. 15-3-00665-9, filed in Snohomish County Superior Court (the

20

“Divorce Case”). Confidential material may be disclosed only to the categories of persons

21

and under the conditions described in this agreement. Confidential material must be stored

22

and maintained by a receiving party at a location and in a secure manner that ensures that

23

access is limited to the persons authorized under this agreement.

24
25
26
MODEL STIPULATED PROTECTIVE
ORDER - 2
Case No. C17-695-BAT

4.2

1

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

2

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

3

disclose any confidential material only to:

4

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

5

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

6
7

party to whom disclosure is reasonably necessary for this litigation, unless the parties agree

8

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

9

designated;

10

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

11

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

12

A);

13

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

14

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

15

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

16

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

17

immediately return all originals and copies of any confidential material;

18

(f) during their depositions, witnesses in the action to whom disclosure is reasonably

19

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

20

(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages

21

of transcribed deposition testimony or exhibits to depositions that reveal confidential material

22

must be separately bound by the court reporter and may not be disclosed to anyone except as

23

permitted under this agreement;

24
25

(g) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.

26
MODEL STIPULATED PROTECTIVE
ORDER - 3
Case No. C17-695-BAT

4.3

1

Filing Confidential Material. Before filing confidential material or discussing

2

or referencing such material in court filings, the filing party shall confer with the designating

3

party to determine whether the designating party will remove the confidential designation,

4

whether the document can be redacted, or whether a motion to seal or stipulation and

5

proposed order is warranted. Local Civil Rule 5(g) sets forth the procedures that must be

6

followed and the standards that will be applied when a party seeks permission from the court

7

to file material under seal. In the Related Cases, the parties shall follow the relevant court’s

8

procedures that must be followed and the standards that will be applied when a party seeks

9

permission from that court to file material under seal.

10
11

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

12

party or non-party that designates information or items for protection under this agreement

13

must take care to limit any such designation to specific material that qualifies under the

14

appropriate standards. The designating party must designate for protection only those parts of

15

material, documents, items, or oral or written communications that qualify, so that other

16

portions of the material, documents, items, or communications for which protection is not

17

warranted are not swept unjustifiably within the ambit of this agreement.

18

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

19

shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

20

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

21

expenses and burdens on other parties) expose the designating party to sanctions.

22

If it comes to a designating party’s attention that information or items that it

23

designated for protection do not qualify for protection, the designating party must promptly

24

notify all other parties that it is withdrawing the mistaken designation.

25

5.2

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

26
MODEL STIPULATED PROTECTIVE
ORDER - 4
Case No. C17-695-BAT

1

agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

2

ordered, disclosure or discovery material that qualifies for protection under this agreement

3

must be clearly so designated before or when the material is disclosed or produced.

4

(a)

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

5

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

6

proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that

7

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

8

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

9

making appropriate markings in the margins).

10

(b)

Testimony given in deposition or in other pretrial proceedings: the parties and

11

any participating non-parties must identify on the record, during the deposition, or other

12

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

13

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

14

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

15

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

16

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

17

(c)

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

18

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

19

“CONFIDENTIAL.” If only a portion or portions of the information or item warrant

20

protection, the producing party, to the extent practicable, shall identify the protected

21

portion(s).

22

5.3

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

23

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

24

party’s right to secure protection under this agreement for such material. Upon timely

25
26
MODEL STIPULATED PROTECTIVE
ORDER - 5
Case No. C17-695-BAT

1

correction of a designation, the receiving party must make reasonable efforts to ensure that the

2

material is treated in accordance with the provisions of this agreement.

3

6.

4

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any party or non-party may challenge a designation of

5

confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality

6

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

7

burdens, or a significant disruption or delay of the litigation, a party does not waive its right to

8

challenge a confidentiality designation by electing not to mount a challenge promptly after the

9

original designation is disclosed.

10

6.2

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

11

regarding confidential designations without court involvement. Any motion regarding

12

confidential designations or for a protective order must include a certification, in the motion

13

or in a declaration or affidavit, that the movant has engaged in a good faith meet and confer

14

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

15

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

16

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

17

6.3

Judicial Intervention. If the parties cannot resolve a challenge without court

18

intervention, the designating party may file and serve a motion to retain confidentiality under

19

Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden

20

of persuasion in any such motion shall be on the designating party. Frivolous challenges, and

21

those made for an improper purpose (e.g., to harass or impose unnecessary expenses and

22

burdens on other parties) may expose the challenging party to sanctions. All parties shall

23

continue to maintain the material in question as confidential until the court rules on the

24

challenge.

25
26
MODEL STIPULATED PROTECTIVE
ORDER - 6
Case No. C17-695-BAT

1

7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

2

OTHER LITIGATION
If a party is served with a subpoena or a court order issued in other litigation that

3
4

compels disclosure of any information or items designated in this action as

5

“CONFIDENTIAL,” that party must:
(a)

6
7

the subpoena or court order;
(b)

8
9

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

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

10

order is subject to this agreement. Such notification shall include a copy of this agreement;

11

and
(c)

12

cooperate with respect to all reasonable procedures sought to be

13

pursued by the designating party whose confidential material may be affected.

14

8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

15

If a receiving party learns that, by inadvertence or otherwise, it has disclosed

16

confidential material to any person or in any circumstance not authorized under this

17

agreement, the receiving party must immediately (a) notify in writing the designating party of

18

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

19

protected material, (c) inform the person or persons to whom unauthorized disclosures were

20

made of all the terms of this agreement, and (d) request that such person or persons execute

21

the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

22

9.

23

PROTECTED MATERIAL

24
25

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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

26
MODEL STIPULATED PROTECTIVE
ORDER - 7
Case No. C17-695-BAT

1

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

2

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

3

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

4

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

5

10.

6

NON TERMINATION AND RETURN OF DOCUMENTS
Within 60 days after the termination of this action, including all appeals, and all

7

Related Cases, each receiving party must return all confidential material to the producing

8

party, including all copies, extracts and summaries thereof. Alternatively, the parties may

9

agree upon appropriate methods of destruction.

10

Notwithstanding this provision, counsel are entitled to retain one archival copy of all

11

documents filed with the court, trial, deposition, and hearing transcripts, correspondence,

12

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

13

work product, even if such materials contain confidential material.

14
15

The confidentiality obligations imposed by this agreement shall remain in effect until
a designating party agrees otherwise in writing or a court orders otherwise.

16
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
17
18

24

By /s/ Peter A. Talevich
Robert B. Mitchell, WSBA #10874
Peter A. Talevich, WSBA #42644
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

25

Attorneys for Plaintiff Premera Blue Cross

19
20
21
22
23

26
MODEL STIPULATED PROTECTIVE
ORDER - 8
Case No. C17-695-BAT

By /s/ Hans P. Juhl
Hans P. Juhl, WSBA #33116
Ryan Swanson Cleveland
1201 Third Avenue, Suite 3400
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendants Tracie Lesan and
Mary Winz

1
2
3
4

By /s/ G. Geoffrey Gibbs
G. Geoffrey Gibbs, WSBA #6146
Anderson Hunter Law Firm P.S.
2707 Colby Ave., Suite 1001
Telephone: [phone]
Facsimile: [phone]
[e-mail]

5
6

Attorneys for Defendant Joyce Nelson

7

PURSUANT TO STIPULATION, IT IS SO ORDERED

8

IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any

9

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

10

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

11

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

12

protection, or any other privilege or protection recognized by law.

13
14

DATED: July 5, 2017

15

A

16

BRIAN A. TSUCHIDA
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
MODEL STIPULATED PROTECTIVE
ORDER - 9
Case No. C17-695-BAT

EXHIBIT A

1
2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

I, ____________________________________ [print or type full name], of

5

___________________________________ [print or type full address], declare under penalty

6

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

7

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

8

in the case of Premera Blue Cross v. Mary Winz et al., Case No. C17-695-BAT. I agree to

9
comply with and to be bound by all the terms of this Stipulated Protective Order and I
10
11

understand and acknowledge that failure to so comply could expose me to sanctions and

12

punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner

13

any information or item that is subject to this Stipulated Protective Order to any person or entity

14

except in strict compliance with the provisions of this Order. I further agree to submit to the

15
16

jurisdiction of the United States District Court for the Western District of Washington for the
purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement

17
18

proceedings occur after termination of this action.

19

Date: _________________________

20

City and State where sworn and signed: _________________________________

21
22

Printed name: _________________________________
Signature: ____________________________________

23
24
25
26
MODEL STIPULATED PROTECTIVE
ORDER - 10
Case No. C17-695-BAT