Rushforth Construction Co., Inc. v. Arch Specialty Insurance Company et al

Filing 82

STIPULATED PROTECTIVE ORDER by U.S. District Judge John C Coughenour. (TH)

Download PDF
1 HONORABLE JOHN C. COUGHENOUR 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 11 12 RUSHFORTH CONSTRUCTION CO., INC., d/b/a AP | RUSHFORTH, a Washington corporation, Plaintiffs, 13 14 15 16 17 18 19 20 21 22 23 24 25 vs. ARCH SPECIALTY INSURANCE COMPANY, a foreign insurance company; ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, a foreign insurance company; SCOTTSDALE INSURANCE COMPANY, a foreign insurance company; JAMES RIVER INSURANCE COMPANY, a foreign insurance company; SENECA SPECIALTY INSURANCE COMPANY, a foreign insurance company; GEMINI INSURANCE COMPANY, a foreign insurance company; UNITED SPECIALTY INSURANCE COMPANY, a foreign insurance company; MITSUI SUMITOMO INSURANCE COMPANY OF AMERICA, a foreign insurance company; OHIO SECURITY INSURANCE COMPANY, a foreign STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 1 Case N. C17 -1063-JCCC STIPULATED PROTECTIVE ORDER insurance company; THE OHIO CASUALTY INSURANCE COMPANY, a foreign insurance company; NEW HAMPSHIRE INSURANCE COMPANY, a foreign insurance company; WESCO INSURANCE COMPANY, a foreign insurance company,, 1 2 3 4 Defendants. 5 6 1. PURPOSES AND LIMITATIONS 7 Discovery in this action is likely to involve production of confidential, proprietary, or 8 private information for which special protection may be warranted. Accordingly, the parties 9 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The 10 parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 11 protection on all disclosures or responses to discovery, the protection it affords from public 12 disclosure and use extends only to the limited information or items that are entitled to 13 confidential treatment under the applicable legal principles, and it does not presumptively entitle 14 parties to file confidential information under seal. 15 2. “CONFIDENTIAL” MATERIAL 16 “Confidential” material shall include the following documents and tangible things 17 produced or otherwise exchanged: • Claim file documents which reflect or refer to rate information, reserves, attorney-client 18 privileged communications, or work product relating to the defense of Rushforth, and/or other competitive business information. 19 • 20 Documents reflecting insurer procedures and guidelines. 21 3. SCOPE 22 The protections conferred by this agreement cover not only confidential material (as 23 defined above), but also (1) any information copied or extracted from confidential material; (2) 24 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 2 1 conversations, or presentations by parties or their counsel that might reveal confidential 2 material. 3 However, the protections conferred by this agreement do not cover information that is 4 in the public domain or becomes part of the public domain through trial or otherwise. 5 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 6 4.1 Basic Principles. A receiving party may use confidential material that is disclosed or 7 produced by another party or by a non-party in connection with this case only for prosecuting, 8 defending, or attempting to settle this litigation. A party’s disclosure of confidential material 9 pursuant to this agreement shall not waive such party’s privileges, immunities, or protections 10 that would otherwise apply to such material. Confidential material may be disclosed only to the 11 categories of persons and under the conditions described in this agreement. Confidential 12 material must be stored and maintained by a receiving party at a location and in a secure manner 13 that ensures that access is limited to the persons authorized under this agreement. 14 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 15 by the court or permitted in writing by the designating party, a receiving party may disclose any 16 confidential material only to: 17 (a) the receiving party’s counsel of record in this action, as well as employees of counsel 18 to whom it is reasonably necessary to disclose the information for this litigation; 19 (b) the officers, directors, and employees (including in house counsel), excess insurers, 20 regulators, auditors, reinsurers, retrocessionaires, and brokers of the receiving party to whom 21 disclosure is reasonably necessary, unless the parties agree that a particular document or material 22 produced is for Attorney’s Eyes Only and is so designated; 23 (c) experts and consultants to whom disclosure is reasonably necessary for this litigation 24 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 3 1 (d) the court, court personnel, and court reporters and their staff; 2 (e) copy or imaging services retained by counsel to assist in the duplication of 3 confidential material, provided that counsel for the party retaining the copy or imaging service 4 instructs the service not to disclose any confidential material to third parties and to immediately 5 return all originals and copies of any confidential material; 6 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 7 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 8 A), unless otherwise agreed by the designating party or ordered by the court. Pages of 9 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 10 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 11 under this agreement; 12 (g) the author or recipient of a document containing the information or a custodian or 13 other person who otherwise possessed or knew the information; 14 (h) any other party as required by law. 15 4.3 Filing Confidential Material. Before filing confidential material or discussing or 16 referencing such material in court filings, the filing party shall confer with the designating party 17 to determine whether the designating party will remove the confidential designation, whether 18 the document can be redacted, or whether a motion to seal or stipulation and proposed order is 19 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the 20 standards that will be applied when a party seeks permission from the court to file material under 21 seal. 22 5. DESIGNATING PROTECTED MATERIAL 23 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or 24 non-party that designates information or items for protection under this agreement must take 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 4 1 care to limit any such designation to specific material that qualifies under the appropriate 2 standards. The designating party must designate for protection only those parts of material, 3 documents, items, or oral or written communications that qualify, so that other portions of the 4 material, documents, items, or communications for which protection is not warranted are not 5 swept unjustifiably within the ambit of this agreement. 6 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 7 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 8 unnecessarily encumber or delay the case development process or to impose unnecessary 9 expenses and burdens on other parties) expose the designating party to sanctions. 10 If it comes to a designating party’s attention that information or items that it designated 11 for protection do not qualify for protection, the designating party must promptly notify all other 12 parties that it is withdrawing the mistaken designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided in this 14 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 15 ordered, disclosure or discovery material that qualifies for protection under this agreement must 16 be clearly so designated before or when the material is disclosed or produced. 17 (a) Information in documentary form: (e.g., paper or electronic documents and 18 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial 19 proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that 20 contains confidential material. If only a portion or portions of the material on a page qualifies 21 for protection, the producing party also must clearly identify the protected portion(s) (e.g., by 22 making appropriate markings in the margins). 23 (b) Testimony given in deposition or in other pretrial proceedings: the parties and 24 any participating non-parties must identify on the record, during the deposition or other pretrial 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 5 1 proceeding, all protected testimony, without prejudice to their right to so designate other 2 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after 3 receiving the transcript of the deposition or other pretrial proceeding, designate portions of the 4 transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect 5 confidential information at trial, the issue should be addressed during the pre-trial conference. 6 (c) Other tangible items: the producing party must affix in a prominent place on the 7 exterior of the container or containers in which the information or item is stored the word 8 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 9 the producing party, to the extent practicable, shall identify the protected portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 11 designate qualified information or items does not, standing alone, waive the designating party’s 12 right to secure protection under this agreement for such material. Upon timely correction of a 13 designation, the receiving party must make reasonable efforts to ensure that the material is 14 treated in accordance with the provisions of this agreement. 15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 16 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 17 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 18 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 19 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 20 challenge a confidentiality designation by electing not to mount a challenge promptly after the 21 original designation is disclosed. 22 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 23 regarding confidential designations without court involvement. Any motion regarding 24 confidential designations or for a protective order must include a certification, in the motion or 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 6 1 in a declaration or affidavit, that the movant has engaged in a good faith meet and confer 2 conference with other affected parties in an effort to resolve the dispute without court action. 3 The certification must list the date, manner, and participants to the conference. A good faith 4 effort to confer requires a face-to-face meeting or a telephone conference. 5 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 6 intervention, the designating party may file and serve a motion to retain confidentiality under 7 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 8 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 9 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 10 other parties) may expose the challenging party to sanctions. All parties shall continue to 11 maintain the material in question as confidential until the court rules on the challenge. 12 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 13 LITIGATION 14 If a party is served with a subpoena or a court order issued in other litigation that compels 15 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 16 party must: 17 (a) promptly notify the designating party in writing and include a copy of the subpoena 18 or court order; 19 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 20 other litigation that some or all of the material covered by the subpoena or order is subject to 21 this agreement. Such notification shall include a copy of this agreement; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 23 designating party whose confidential material may be affected. 24 25 // STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 7 1 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 3 material to any person or in any circumstance not authorized under this agreement, the receiving 4 party must immediately (a) notify in writing the designating party of the unauthorized 5 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, 6 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms 7 of this agreement, and (d) request that such person or persons execute the “Acknowledgment 8 and Agreement to Be Bound” that is attached hereto as Exhibit A. 9 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 10 MATERIAL 11 When a producing party gives notice to receiving parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 14 provision is not intended to modify whatever procedure may be established in an e-discovery 15 order or agreement that provides for production without prior privilege review. The parties agree 16 to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 17 10. NON TERMINATION AND RETURN OF DOCUMENTS 18 Within 60 days after the termination of this action, including all appeals, each receiving 19 party must return all confidential material to the producing party, including all copies, extracts 20 and summaries thereof. Alternatively, the parties may retain confidential material, while 21 utilizing appropriate methods of maintaining the confidentiality of such material consistently 22 with the requirements of this agreement. 23 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 24 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 8 1 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 2 work product, even if such materials contain confidential material. 3 The confidentiality obligations imposed by this agreement shall remain in effect until a 4 designating party agrees otherwise in writing or a court orders otherwise. 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 Dated: February 12, 2018 8 REED McCLURE By: s/Christopher J. Nye Christopher J. Nye, WSBA No. 29690 Attorney for Defendant Arch Specialty Insurance Company 9 10 11 12 13 Dated: February 12, 2018 NICOLAIDES FINK THORPE MICHAELIDES SULLIVAN, LLP 14 By: 15 16 17 s/Sara M. Thorpe Sara M. Thorpe, Bar No. 146529 Attorney for Defendant Arch Specialty Insurance Company- Pro Hac Vice 18 19 Dated: February 12, 2018 20 By: s/Gregory L. Harper Gregory L. Harper, WSBA No. 27311 Thomas M. Williams, WSBA No. 47654 Attorneys for Plaintiff, Rushforth Construction Co. 21 22 23 24 25 HARPER | HAYES PLLC STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 9 1 Dated: February 12, 2018 JERRY MOBERG & ASSOCIATES, P.S. 2 By: s/Kara R. Masters Kara R. Masters, WSBA No. 23459 Jerry Moberg, WSBA No. 5282 Attorneys for Defendant, James River Insurance Co. 3 4 5 6 7 Dated: February 12, 2018 WILSON SMITH COCHRAN & DICKERSON 8 By: s/John M. Silk John M. Silk, WSBA No. 15035 Lisa C. Neal, WSBA No. 25686 Attorney for Defendants, Ohio Security Insurance Co. and The Ohio Casualty Insurance Co. 9 10 11 12 13 14 Dated: February 12, 2018 15 By: 16 17 18 19 SCHEER LAW GROUP LLP Dated: February 12, 2018 20 s/Jonathan D. Holt Jonathan Dirk Holt, WSBA No. 28433 Kelsey L. Shewbert, WSBA No. 51214 Attorneys for Defendant, United Specialty Insurance Co. LEWIS BRISBOIS BISGAARD & SMITH LLP 21 By: s/Gregory S. Worden Gregory S. Worden, WSBA No. 24262 John T. Bender, WSBA No. 49658 Lane J. Ashley, Bar No. 073296-Pro Hac Vice Attorneys for Defendant, Wesco Insurance Company 22 23 24 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 10 1 Dated: February 12, 2018 2 JENSEN MORSE BAKER PLLC By: s/Steven D. Jensen Steven D. Jensen, WSBA No. 26495 Gabriel Baker, WSBA No. 28476 Attorneys for Defendant, New Hampshire Insurance Company 3 4 5 6 Dated: February 12, 2018 LETHER & ASSOCIATES, PLLC 7 By: 8 9 10 s/Thomas Lether Thomas Lether, WSBA No. 18089 Eric Neal, WSBA No. 31863 Attorneys for Defendant, Seneca Specialty Insurance Company 11 12 Dated: February 12, 2018 13 SELMAN BREITMAN LLP By: s/Peter J. Mintzer Peter J. Mintzer, WSBA No. 19995 Attorneys for Defendant, Gemini Insurance Company 14 15 16 17 Dated: February 12, 2018 MURPHY ARMSTRONG & FELTON LLP 18 19 By: s/James P. Murphy James P. Murphy, WSBA No. 18125 Tracy Y. Williams, WSBA No. 35239 Attorneys for Defendant, Endurance American Specialty Insurance Company 20 21 22 23 // 24 // 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 11 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of 3 any documents in this proceeding shall not, for the purposes of this proceeding or any other 4 proceeding in any other court, constitute a waiver by the producing party of any privilege 5 applicable to those documents, including the attorney-client privilege, attorney work-product 6 protection, or any other privilege or protection recognized by law. 7 8 9 DATED: February 14, 2018 10 John C. Coughenour United States District Court Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 ____________________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Western District of Washington on [date] in 7 the case of ________________ Rushforth Construction Co., Inc. d/b/a AP | Rushforth v. Arch 8 Specialty Insurance Company, et al, Case No. 2:17-cv-1063-JCC. I agree to comply with and to 9 be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge 10 that failure to so comply could expose me to sanctions and punishment in the nature of contempt. 11 I solemnly promise that I will not disclose in any manner any information or item that is subject 12 to this Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Western District of Washington for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this action. 17 Date: ___________________ 18 City and State where sworn and signed: _________________________ 19 Printed name: ___________________________ 20 Signature: ______________________________ 21 22 23 24 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 CERTIFICATE OF SERVICE I hereby certify that on February 12, 2018, I filed the following documents: (1) Stipulated Protective Order; (2) and (this) Certificate of Service, with the Clerk of the Court using the CM/ECF system and also send electronic notification to the following: Greg L Harper Thomas M. Williams Harper | Hayes PLLC 600 University Street, Suite 2420 Seattle, WA 98101-1129 Attorneys for Plaintiffs Jonathan Dirk Holt Kelsey L. Shewbert Scheer Law Group LLP 701 Pike Street, Suite 2200 Seattle, WA 98101-2358 Attorneys for United Specialty John M. Silk Lisa C. Neal Sarah Eversole Wilson Smith Cochran Dickerson 901 Fifth Ave., Suite 1700 Seattle, WA 98164-2050 Attorneys for Ohio Security Geoffrey J.M. Bridgman Daniel F. Shickich Ogden, Murphy, Wallace 1601 Fifth Ave., Suite 2100 Seattle, WA 98101-1686 Attorneys for Scottsdale Ins. Co. Kara R. Masters Jerry Moberg Jerry Moberg & Associates, P.S. P.O. Box 130 Ephrata, WA 98823 Attorneys for James River Steven D. Jensen Gabriel Baker Jensen Morse Baker PLLC 216 First Ave. S, Suite 204 Seattle, WA 98104-2534 Attorneys for New Hampshire Ins. Co. Peter J. Mintzer Selman Breitman, LLP 800 Fifth Ave., Suite 4100 Seattle, WA 98104-3100 Attorneys for Gemini Loretta Douglas Selman Breitman 33 New Montgomery Street, Floor 6 San Francisco, CA 94105-4537 Attorney for Gemini Jonathan Dirk Holt Scheer Law Group LLP 701 Pike Street, Suite 2200 Seattle, WA 98101-2358 Attorney for Ohio Casualty Gregory S. Worden John T. Bender Lewis Brisbois Bisgaard & Smith LLP 1111 Third Ave., Suite 2700 Seattle, WA 98101 Attorneys for Wesco Lane J. Ashley Lewis, Brisbois, Bisgaard & Smith LLP Sara M. Thorpe 20 21 22 23 24 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 14 1 2 633 W. 5th Street, Suite 4000 Los Angeles, CA 90071 Pro Hac Vice for Wesco Nicolaides Fink Thorpe Michaelides Sullivan LLP 101 Montgomery Street, Suite 2300 San Francisco, CA 94101 Pro Hac Vice Counsel for Arch Specialty James P. Murphy Tracy Y. Williams Murphy Armstrong & Felton LLP 701 Millennium Tower 719 Second Avenue Seattle, WA 98104 Attorneys for Endurance American Specialty Ins. Co. Thomas Lether Eric Neal Lether & Associates 1848 Westlake Ave. N, Suite 100 Seattle, WA 98109 Attorneys for Seneca Specialty Ins. Co. 3 4 5 6 7 8 9 10 Executed at Seattle, Washington this 12th day of February, 2018. 11 12 Rebecca C. Lewis Legal Secretary Reed McClure 1215 Fourth Avenue, Suite 1700 Seattle, WA 98161-1087 Tel: (206) 292-4900 Fax: (206) 223-0152 Email: 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATED PROTECTIVE ORDER C17-1063-JCC PAGE – 15

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?