Kremerman v. Open Source Steel, LLC et al

Filing 74

STIPULATED PROTECTIVE ORDER re 73 by Hon. Brian A Tsuchida. (AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ELLIOT KREMERMAN,

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Plaintiff,
v.

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OPEN SOURCE STEEL, LLC, et al.,

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Case No. 2:17-cv-953-BAT
STIPULATED PROTECTIVE ORDER

Defendants.

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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.
2.

CONFIDENTIAL MATERIAL
2.1

“CONFIDENTIAL” material may include, but is not limited to, the following

documents and tangible things produced or otherwise exchanged:


Supplier or manufacturer lists of plaintiff, defendants, and any of their businesses;

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

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manufacturing specifications of the products marketed and sold by plaintiff,

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defendants, and any of their businesses.

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2.2

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material shall

include extremely sensitive confidential information or items, disclosure of which to another Party
or Non-Party would create a substantial risk of serious harm that could not be avoided by less
restrictive means, and may include but are not limited to:

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

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(including, but not limited to, profits, losses, costs, and sales figures);

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
3.

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Customer lists of the plaintiff, defendants, and any of their businesses.

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

above), but also (1) any information copied or extracted from confidential material; (2) 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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Sensitive, highly proprietary, or trade secret company information, including
financial information of the plaintiff, defendants, and any of their businesses

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Proprietary or non-public information regarding composition, formula, and

However, the protections conferred by this agreement do not cover information that is in
the public domain or becomes part of the public domain through trial or otherwise.
4.

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 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.

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4.2

by the court or permitted in writing by the designating party, a receiving party may disclose any
confidential material only to:

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(a)

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(b)

unless a particular document or material produced is for designated Attorney’s Eyes Only;
(c)

(d)

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instructs the service not to disclose any confidential material to third parties and to immediately
return all originals and copies of any confidential material;
(f)

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

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal confidential material must be
separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this agreement;

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

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

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the court, court personnel, and court reporters and their staff;

(e)

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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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the receiving party and the officers, directors, and employees (including in

house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation,

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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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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

(g)

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

custodian or other person who otherwise possessed or knew the information.
4.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items. Unless otherwise ordered by the court or permitted in writing by the
designating party, a receiving party may disclose information designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
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(a)

of counsel to whom it is reasonably necessary to disclose the information for this litigation;

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(b)

(c)

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instructs the service not to disclose any confidential material to third parties and to immediately
return all originals and copies of any confidential material;
(e)

material must be separately bound by the court reporter and may not be disclosed to anyone except
as permitted under this agreement;
(f)

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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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party witnesses (during depositions or trial) of the designating party; pages

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

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

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

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the court, court personnel, and court reporters and their staff;

(d)

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

4.4

Filing Confidential Material. Before filing confidential material or discussing or

referencing such material in court filings, the filing party shall confer with the designating party to
determine whether the designating party will remove the confidential designation, whether the
document can be redacted, or whether a motion to seal or stipulation and proposed order is
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.
5.

DESIGNATING PROTECTED MATERIAL
5.1

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

non-party that designates information or items for protection under this agreement must take care
to limit any such designation to specific material that qualifies under the appropriate standards. The
designating party must designate for protection only those parts of material, documents, items, or
oral or written communications that qualify, so that other portions of the material, documents, items,
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or communications for which protection is not warranted are not swept unjustifiably within the
ambit of this agreement.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
encumber or delay the case development process or to impose unnecessary expenses and burdens
on other parties) expose the designating party to sanctions.
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 parties
that it is withdrawing the mistaken designation.
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 ordered,
disclosure or discovery material that qualifies for protection under this agreement must be clearly
so designated before or when the material is disclosed or produced.
(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),
the designating party must affix the word “CONFIDENTIAL” to each page that contains
confidential material. If only a portion or portions of the material on a page qualifies for protection,
the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b)

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

and any participating non-parties must identify on the record, during the deposition or other pretrial
proceeding, all protected testimony, without prejudice to their right to so designate other 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 transcript, or
exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
at trial, the issue should be addressed during the pre-trial conference.

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(c)

the exterior of the container or containers in which the information or item is stored the word
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a
portion or portions of the information or item warrant protection, the producing party, to the extent
practicable, shall identify the protected portion(s).

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

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
in accordance with the provisions of this agreement.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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
original designation is disclosed.
6.2

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

regarding confidential designations without court involvement. Any motion regarding confidential
designations or for a protective order must include a certification, in the motion or in 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 must list
the date, manner, and participants to the conference. A good faith effort to confer requires a faceto-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 Local
Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of persuasion
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in any such motion shall be on the designating party. Frivolous challenges, and those 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 the material
in question as confidential until the court rules on the challenge.
7.

LITIGATION

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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” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that party must:

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(a)

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(b)

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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.
8.

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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 order is

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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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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

material to any person or in any circumstance not authorized under this agreement, the receiving
party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
(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,
and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.
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9.

MATERIAL

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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(d) as set forth herein.
10.

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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 destruction.
Notwithstanding this provision, counsel are entitled to retain one archival copy of all
documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant and expert work product,
even if such materials contain confidential material.

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

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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: August 21, 2017

DATED: August 21, 2017

/s/ Stephen E. Morrissey
Stephen E. Morrissey
Lindsey Godfrey Eccles
SUSMAN GODFREY L.L.P.
1201 Third Avenue, Suite 3800
Seattle, Washington 98101-3000
Telephone: [phone]
[e-mail]
[e-mail]

/s/ Rick C. Chang (w/ permission)
Rick C. Chang (Admitted Pro Hac Vice)
Duane H. Mathiowetz (Admitted Pro Hac Vice)
FOLEY & LARDNER LLP
555 California Street, Suite 1700
San Francisco, CA 94104-1520
Telephone: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiff Elliot Kremerman

Benjamin Hodges, WSBA No. 49301
FOSTER PEPPER PLLC
1111 Third Avenue, Suite 3000
Seattle, Washington 98101-3292
Telephone: [phone]
[e-mail]

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Attorneys for Defendants Open Source
Steel, LLC, James Dellay, and Joshua
Dellay

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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

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in any other court, constitute a waiver by the producing party of any privilege applicable to those

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documents, including the attorney-client privilege, attorney work-product protection, or any other

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privilege or protection recognized by law.

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DATED: August 25, 2017.

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A

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BRIAN A. TSUCHIDA
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER - 9
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

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[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
___________________ in the case of Kremerman v. Open Source Steel, LLC, et al, 2:17-CV00953-BAT. 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.

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____________________________________

I further agree to submit to the 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 proceedings occur after termination of this action.
Date:
City and State where sworn and signed:
Printed name:
Signature:

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