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)

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HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RUSHFORTH CONSTRUCTION CO.,
INC., d/b/a AP | RUSHFORTH, a
Washington corporation,
Plaintiffs,

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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
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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,,

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Defendants.

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1.

PURPOSES AND LIMITATIONS

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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

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“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
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privileged communications, or work product relating to the defense of Rushforth, and/or
other competitive business information.
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•

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Documents reflecting insurer procedures and guidelines.

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SCOPE

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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,
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1 conversations, or presentations by parties or their counsel that might reveal confidential
2 material.
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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

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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.
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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:
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(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;
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(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;
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(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);
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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

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;
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(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;
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(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;
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(h)

any other party as required by law.

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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

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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
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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.
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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.
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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.
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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.
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(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).
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(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
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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.
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(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).
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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.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

18 or court order;
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(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
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(c) cooperate with respect to all reasonable procedures sought to be pursued by the

23 designating party whose confidential material may be affected.
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1 8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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
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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

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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.
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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,
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1 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert
2 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

4 designating party agrees otherwise in writing or a court orders otherwise.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: February 12, 2018

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REED McCLURE
By: s/Christopher J. Nye
Christopher J. Nye, WSBA No. 29690
Attorney for Defendant Arch Specialty
Insurance Company

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Dated: February 12, 2018

NICOLAIDES FINK THORPE
MICHAELIDES SULLIVAN, LLP

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By:

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s/Sara M. Thorpe
Sara M. Thorpe, Bar No. 146529
Attorney for Defendant Arch Specialty
Insurance Company- Pro Hac Vice

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Dated: February 12, 2018

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By: s/Gregory L. Harper
Gregory L. Harper, WSBA No. 27311
Thomas M. Williams, WSBA No. 47654
Attorneys for Plaintiff, Rushforth
Construction Co.

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HARPER | HAYES PLLC

STIPULATED PROTECTIVE ORDER
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1 Dated: February 12, 2018

JERRY MOBERG & ASSOCIATES, P.S.

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By: s/Kara R. Masters
Kara R. Masters, WSBA No. 23459
Jerry Moberg, WSBA No. 5282
Attorneys for Defendant, James River
Insurance Co.

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7 Dated: February 12, 2018

WILSON SMITH COCHRAN &
DICKERSON

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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.

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Dated: February 12, 2018

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By:

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SCHEER LAW GROUP LLP

Dated: February 12, 2018

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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

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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

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Dated: February 12, 2018

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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

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6 Dated: February 12, 2018

LETHER & ASSOCIATES, PLLC

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By:
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s/Thomas Lether
Thomas Lether, WSBA No. 18089
Eric Neal, WSBA No. 31863
Attorneys for Defendant, Seneca Specialty
Insurance Company

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Dated: February 12, 2018

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SELMAN BREITMAN LLP

By: s/Peter J. Mintzer
Peter J. Mintzer, WSBA No. 19995
Attorneys for Defendant, Gemini Insurance
Company

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Dated: February 12, 2018

MURPHY ARMSTRONG & FELTON LLP

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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

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//

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//

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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

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.
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DATED: February 14, 2018
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John C. Coughenour
United States District Court Judge

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A

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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

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.
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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: ______________________________
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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

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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.

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Executed at Seattle, Washington this 12th day of February, 2018.

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Rebecca C. Lewis
Legal Secretary
Reed McClure
1215 Fourth Avenue, Suite 1700
Seattle, WA 98161-1087
Tel: [phone]
Fax: [phone]
Email:

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