Premera Blue Cross v. Winz et al

Filing 13

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

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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: (206) 623-7580 Facsimile: (206) 623-7022 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: (206) 654-2203 Facsimile: (206) 652-2903 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: (425) 252-5161 Facsimile: (425) 258-3345 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

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