Nellams v. Pacific Maritime Association et al
Filing
66
STIPULATED PROTECTIVE ORDER re 65 Stipulated MOTION for Protective Order. Signed by Judge Ricardo S Martinez. (PM)
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The Honorable Ricardo S. Martinez
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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ABIN’BOLA NELLAMS,
Plaintiff,
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vs.
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STIPULATED PROTECTIVE ORDER
PACIFIC MARITIME ASSOCIATION, a
California non-profit corporation; SSA
MARINE, INC., a Washington
corporation; TOTAL TERMINALS
INTERNATIONAL, LLC, a Delaware
limited liability company;
INTERNATIONAL LONGSHOREMEN’S
& WARE-HOUSEMEN’S UNION,
LOCAL 19, a Washington non-profit
corporation; FARON FLETCHER,
individually and in his official capacity as
terminal supervisor for SSA Marine, Inc.,
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No. 2:17-cv-00911-RSM
Defendants.
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
STIPULATED PROTECTIVE ORDER - 1
No. 2:17-cv-00911-RSM
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MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
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disclosure and use extends only to the limited information or items that are entitled to confidential
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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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2.
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“Confidential” material shall include the following documents and tangible things produced or
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otherwise exchanged containing:
“CONFIDENTIAL” MATERIAL
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•
medical and personnel records of plaintiff;
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•
medical and personnel records of other past and present employees;
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•
correspondence or other business records, such as minutes of the Labor Relations
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Committees, which reveal medical and/or personnel information of plaintiff or
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other past and present employees;
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•
all records of grievances filed under the Special Section 13.2 Grievance Procedures,
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including complaints, correspondence, hearing transcripts, hearing exhibits,
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decisions, appeals, and oppositions to appeals; and/or
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•
confidential and proprietary business information, including trade secrets.
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3.
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The protections conferred by this agreement cover not only confidential material (as defined
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above), but also (1) any information copied or extracted from confidential material; (2) all copies,
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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 is in the public
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domain or becomes part of the public domain through trial or otherwise.
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4.
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SCOPE
ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
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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4848-4292-6173.1
MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
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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 ordered
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by the court or permitted in writing by the designating party, a receiving party may disclose any
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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;
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(b)
the officers, directors, and employees (including in house counsel) of the
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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
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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;
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STIPULATED PROTECTIVE ORDER - 3
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MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
1
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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.
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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
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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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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
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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 expenses
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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
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protection do not qualify for protection, the designating party must promptly notify all other parties
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that it is withdrawing the mistaken designation.
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5.2
Manner and Timing of Designations.
Except as otherwise provided in this
agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
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STIPULATED PROTECTIVE ORDER - 4
No. 2:17-cv-00911-RSM
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MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
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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
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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 protection,
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the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
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markings in the margins).
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(b)
Testimony given in deposition or in other pretrial or trial proceedings: the
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parties must identify on the record, during the deposition or other pretrial proceeding, all protected
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testimony, without prejudice to their right to so designate other testimony after reviewing the
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transcript. Any party or non-party may, within fifteen days after receiving the transcript of the
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deposition or other pretrial proceedings, designate portions of the transcript, or exhibits thereto, as
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confidential. If a party or non-party desires to protect confidential information at trial, the issue
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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
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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
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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 treated
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in accordance with the provisions of this agreement.
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STIPULATED PROTECTIVE ORDER - 5
No. 2:17-cv-00911-RSM
4848-4292-6173.1
MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
1
6.
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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
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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
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
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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.
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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 Local
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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 maintain
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the material in question as confidential until the court rules on the challenge.
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7.
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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
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
must:
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MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
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(a)
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 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
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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
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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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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
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
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
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 as set forth herein.
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STIPULATED PROTECTIVE ORDER - 7
No. 2:17-cv-00911-RSM
4848-4292-6173.1
MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
1
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 and
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summaries thereof. Alternatively, the parties may agree upon appropriate methods of 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 work
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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 SO STIPULATED, THROUGH COUNSEL OF RECORD AND BY DEFENDANT
FLETCHER PRO SE.
DATED this 16th day of March, 2018.
By: s/Stephanie Stocker
Stephanie Stocker, WSBA No. 33567
HENDERSON LAW GROUP, PLLC
PO Box 11069
Olympia, WA 98508
Tel: (360) 943-7710
Fax: (360) 943-2782
Email: stephanie@hendersonlaw.net
Counsel for Plaintiff
By: s/Clemens H. Barnes
Clemens H. Barnes, WSBA No. 4905
Alyson L. Palmer, WSBA No. 46916
Megan Starich, WSBA No. 47520
MILLER NASH GRAHAM & DUNN LLP
Pier 70, 2801 Alaskan Way Ste 300
Seattle, WA 98121-1128
Tel: (206) 624-8300
Fax: (206) 340-9599
Email: clem.barnes@millernash.com
Email: alyson.palmer@millernash.com
Email: megan.starich@millernash.com
Counsel for Defendants Pacific Maritime
Association and SSA Marine
By: s/Michael E. Johns
Michael E. Johns, WSBA No. 22054
ROBERTS JOHNS & HEMPHILL, PLLC
7525 Pioneer Way Ste 202
Gig Harbor, WA 98335
Tel: (253) 858-8606
Email: mike@rjh-legal.com
Counsel for Plaintiff
By: s/Cheryl A. Sabnis
Cheryl A. Sabnis, Pro Hac Vice
KING & SPALDING LLP
101 Second St Ste 2300
San Francisco, CA 94105
Tel: (415) 318-1250
csabnis@kslaw.com
Counsel for Defendant Total Terminals
International
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STIPULATED PROTECTIVE ORDER - 8
No. 2:17-cv-00911-RSM
4848-4292-6173.1
MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
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By: s/Faron W. Fletcher
Faron W. Fletcher
7652 S. 135th St
Seattle, WA 98178
Tel: (360) 313-6484
ravenwood666@gmail.com
Pro Se Defendant
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By: s/Matthew C. Crane
Matthew C. Crane, WSBA No. 18003
BAUER MOYNIHAN & JOHNSON LLP
2101 Fourth Ave Ste 2400
Seattle, WA 98121-2320
Tel: (206) 443-3400
mccrane@bmjlaw.com
Counsel for Defendant Total Terminals
International
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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 proceeding
in any other court, constitute a waiver by the producing party of any privilege applicable to those
documents, including the attorney-client privilege, attorney work-product protection, or any other
privilege or protection recognized by law.
DATED: March 19, 2018.
A
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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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STIPULATED PROTECTIVE ORDER - 9
No. 2:17-cv-00911-RSM
4848-4292-6173.1
MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I,
____________________________________
[print
or
type
full
name],
of
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____________________________________ [print or type full address], declare under penalty of
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perjury that I have read in its entirety and understand the Stipulated Protective Order that was
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issued by the United States District Court for the Western District of Washington on ___________
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[date] in the case of Abin’Bola Nellams v. Pacific Maritime Association; SSA Marine, Inc.; Total
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Terminals International, LLC; International Longshoremen’s & Ware-Housemen’s Union, Local
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19, Faron Fletcher, Case No. 2:17-cv-00911-RSM. I agree to comply with and to be bound by all
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the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so
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comply could expose me to sanctions and punishment in the nature of contempt. I solemnly
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promise that I will not disclose in any manner any information or item that is subject to this
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Stipulated Protective Order to any person or entity except in strict compliance with the provisions
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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 Protective
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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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STIPULATED PROTECTIVE ORDER - 10
No. 2:17-cv-00911-RSM
4848-4292-6173.1
MILLER NASH GRAHAM & DUNN LLP
AT T OR NE YS AT L AW
T: 206.624.8300 | F: 206.340.9599
P I ER 7 0
2 8 0 1 ALAS K AN W AY, SUI T E 3 0 0
SE AT T LE , W ASHI NGT ON 9 8 1 2 1
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