Bronner v. Vocational Training Institutes, Inc

Filing 16

STIPULATION AND PROTECTIVE ORDER by Judge Marsha J. Pechman. (SWT)

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THE HONORABLE MARSHA J. PECHMAN

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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REGINA BRONNER, a Washington State
citizen,

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Plaintiff,

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v.

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VOCATIONAL TRAINING INSTITUTE,
INC., d/b/a PIMA MEDICAL
INSTITUTE, an Arizona corporation,

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Defendant.

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) NO.: 2:17-cv-00867-MJP
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) STIPULATION AND
) PROTECTIVE ORDER
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PURPOSES AND LIMITATIONS
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 parties

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hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The

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parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket

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protection on all disclosures or responses to discovery, the protection it affords from public

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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

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confidential information under seal.
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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 1

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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2.

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

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“CONFIDENTIAL” MATERIAL

produced or otherwise exchanged, including but not limited to, medical records, confidential
information regarding non-party employees, students and/or other third parties, and information

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regarding the business of Pima.
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3.

SCOPE

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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,
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 is in
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the public domain or becomes part of the public domain through trial or otherwise.
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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

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

or produced by another party or by a non-party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Confidential material may be disclosed only to
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
that ensures that access is limited to the persons authorized under this agreement.
4.2

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:
(a)

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

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of counsel to whom it is reasonably necessary to disclose the information for this litigation;
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(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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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 2

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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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;
(c)

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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)
(e)

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

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit 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;
(g)

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

custodian or other person who otherwise possessed or knew the information.
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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 standards
that will be applied when a party seeks permission from the court to file material under seal.

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5.
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DESIGNATING PROTECTED MATERIAL
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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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 3

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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

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

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

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(a)

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

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 making

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

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 4

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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transcript, or exhibits thereto, as confidential.

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

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If a party or non-party desires to protect

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
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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

designate qualified information or items does not, standing alone, waive the designating party’s
right to secure protection under this agreement for such material. Upon timely correction of a
designation, the receiving party must make reasonable efforts to ensure that the material is treated

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in accordance with the provisions of this agreement.
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6.

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

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original designation is disclosed.
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 conference
with other affected parties in an effort to resolve the dispute without court action. The certification

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must list the date, manner, and participants to the conference. A good faith effort to confer requires
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a face-to-face meeting or a telephone conference.
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
STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 5

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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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
other parties) may expose the challenging party to sanctions. All parties shall continue to maintain

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the material in question as confidential until the court rules on the challenge.
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7.

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

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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

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

subpoena or court order;

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(b)

promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or order is

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subject to this agreement. Such notification shall include a copy of this agreement; and
(c)

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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 disclosures,

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(b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the
person or persons to whom unauthorized disclosures were made of all the terms of this agreement,

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and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A.

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9.

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MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 6

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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

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agreement that provides for production without prior privilege review. The parties agree to the
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entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
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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
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.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD:
Dated this 8th day of November, 2017

Dated this 8th day of November, 2017

CORR DOWNS, PLLC

MICHAEL & ALEXANDER PLLC

By: /s/ Jacob M. Downs__________
Jacob M. Downs, WSBA #37982
Corr Downs, PLLC
100 West Harrison Street, Suite N440
Seattle, WA 98119

By: _/s/ Cindy M. Lin_____________
Stephanie R. Alexander, WSBA #28007
Cindy M. Lin, WSBA #42959
Claire E. Marshall, WSBA #48324
Michael & Alexander PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101

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Email: [e-mail]
Attorney for the Plaintiff

Email: [e-mail]

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 7

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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Email: [e-mail]
Email: [e-mail]

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Attorneys for the Defendant

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 8

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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

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documents in this proceeding shall not, for the purposes of this proceeding or any other
proceeding in any other court, constitute a waiver by the producing party of any privilege

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applicable to those documents, including the attorney-client privilege, attorney work-product
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protection, or any other privilege or protection recognized by law.
DATED this 14th day of November, 2017.

A

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Marsha J. Pechman
United States District Judge

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Presented by:
MICHAEL & ALEXANDER PLLC

By: _/s/ Cindy M. Lin_______________
Stephanie R. Alexander, WSBA #28007
Cindy M. Lin, WSBA #42959
Claire E. Marshall, WSBA #48324

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CORR DOWNS, PLLC

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By: _/s/ Jacob M. Downs______
Jacob M. Downs, WSBA #37982

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 9

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

____________________________________

[print

or

type

full

name],

of

_____________________________________________________________________________
[print or type full address], declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States District Court for
the Western District of Washington on _________ [date] in the case of Regina Bronner v.
Vocational Training Institute, Inc., d/b/a PIMA Medical Institute, No. 2:17-cv-00867-MJP. I
agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Stipulated Protective Order to any person or entity
except in strict compliance with the provisions of this Order.
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:
Signature:

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 10

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696

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CERTIFICATE OF SERVICE

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I hereby certify that I served the foregoing Stipulation and Proposed Protective Order with

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the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

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the following:

Jacob M. Downs, WSBA #37982
Corr Downs, PLLC
100 West Harrison Street, Suite N440
Seattle, WA 98119
Email: [e-mail]

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DATED this 8th day of November, 2017.

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_/s/ Taylor Schwieger________________
Taylor Schwieger

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER - 11

MICHAEL & ALEXANDER PLLC
701 Pike Street, Suite 1150
Seattle, WA 98101
206.442.9696