Senior Housing Assistance Group v. AMTAX Holdings 260, LLC et al

Filing 71

STIPULATED PROTECTIVE ORDER signed by Judge Ricardo S Martinez. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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Plaintiff,
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v.
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AMTAX HOLDINGS 260, LLC, et al. ,
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Defendants.
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AMTAX HOLDINGS 260, LLC, et al. ,
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Counter-Plaintiffs,
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v.
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SENIOR HOUSING ASSISTANCE
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CORPORATION, et al.,
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Counter-Defendants.
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___________________________________________)
SENIOR HOUSING ASSISTANCE GROUP ,

CASE NO. C17-01115 RSM
STIPULATED PROTECTIVE
ORDER

20 1.

PURPOSES AND LIMITATIONS

21

Discovery in this action is likely to involve production of confidential, proprietary, or

22 private information for which special protection may be warranted. Accordingly, the parties hereby
23 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties
24 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
25 protection on all disclosures or responses to discovery. The protection it affords from public
26 disclosure and use extends only to the limited information or items that are entitled to confidential
STIPULATED PROTECTIVE ORDER - 1
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

1 treatment under the applicable legal principles, and it does not presumptively entitle parties to file
2 confidential information under seal.
3 2.

“CONFIDENTIAL” MATERIAL

4

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

5 produced or otherwise exchanged:
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(a)

Information that the designating party reasonably believes constitutes, reflects, or

7 discloses trade secrets, proprietary data, or commercially sensitive information;
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(b)

Information about employees or contractors that is treated as confidential by the

9 designating party or affiliate, or by customers, vendors, or others with whom the designating party
10 does business;
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(c)

Information subject to confidentiality agreements with third parties or pre-existing

12 confidentiality agreements between the parties;
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(d)

Tax returns and information used in preparation of those tax returns;

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(e)

Medical records; and

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(f)

Tenant and other personal information.

16 3.

SCOPE

17

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

18 defined above), but also (1) any information copied or extracted from confidential material; (2) all
19 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
20 conversations, or presentations by parties or their counsel that might reveal confidential material.
21

However, the protections conferred by this agreement do not cover information that is in

22 the public domain or becomes part of the public domain through trial or otherwise.
23 4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

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

25 by another party or by a non-party in connection with this case only for prosecuting, defending, or
26 attempting to settle this litigation. Confidential material may be disclosed only to the categories of
STIPULATED PROTECTIVE ORDER - 2
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

1 persons and under the conditions described in this agreement. Confidential material must be stored
2 and maintained by a receiving party at a location and in a secure manner that ensures that access
3 is limited to the persons authorized under this agreement.
4

4.2

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

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

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

8 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

10 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
11 agree that a particular document or material produced is for Attorney’s Eyes Only and is so
12 designated;
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(c)

experts and consultants to whom disclosure is reasonably necessary for this

14 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

17 confidential material, provided that counsel for the party retaining the copy or imaging service
18 instructs the service not to disclose any confidential material to third parties and to immediately
19 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

21 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
22 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
23 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
24 be separately bound by the court reporter and may not be disclosed to anyone except as permitted
25 under this agreement;
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STIPULATED PROTECTIVE ORDER - 3
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

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(g)

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

2 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

4 referencing such material in court filings, the filing party shall confer with the designating party
5 to determine whether the designating party will remove the confidential designation, whether the
6 document can be redacted, or whether a motion to seal or stipulation and proposed order is
7 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards
8 that will be applied when a party seeks permission from the court to file material under seal.
9 5.
10

DESIGNATING PROTECTED MATERIAL
5.1

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

11 or non-party that designates information or items for protection under this agreement must take
12 care to limit any such designation to specific material that qualifies under the appropriate
13 standards. The designating party must designate for protection only those parts of material,
14 documents, items, or oral or written communications that qualify, so that other portions of the
15 material, documents, items, or communications for which protection is not warranted are not swept
16 unjustifiably within the ambit of this agreement.
17

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

18 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
19 unnecessarily encumber or delay the case development process or to impose unnecessary expenses
20 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

22 protection do not qualify for protection, the designating party must promptly notify all other parties
23 that it is withdrawing the mistaken designation.
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5.2

Manner and Timing of Designations. Except as otherwise provided in this

25 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
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

1 ordered, disclosure or discovery material that qualifies for protection under this agreement must
2 be clearly so designated before or when the material is disclosed or produced.
3

(a)

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

4 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
5 the designating party must affix the word “CONFIDENTIAL” to each page that contains
6 confidential material. If only a portion or portions of the material on a page qualifies for protection,
7 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
8 markings in the margins).
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(b)

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

10 and any participating non-parties must identify on the record, during the deposition or other pretrial
11 proceeding, all protected testimony, without prejudice to their right to so designate other testimony
12 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the
13 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or
14 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
15 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

17 on the exterior of the container or containers in which the information or item is stored the word
18 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
19 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

21 designate qualified information or items does not, standing alone, waive the designating party’s
22 right to secure protection under this agreement for such material. Upon timely correction of a
23 designation, the receiving party must make reasonable efforts to ensure that the material is treated
24 in accordance with the provisions of this agreement.
25 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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STIPULATED PROTECTIVE ORDER - 5
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

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6.1

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

2 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
3 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
4 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
5 challenge a confidentiality designation by electing not to mount a challenge promptly after the
6 original designation is disclosed.
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6.2

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

8 regarding confidential designations without court involvement. Any motion regarding confidential
9 designations or for a protective order must include a certification, in the motion or in a declaration
10 or affidavit, that the movant has engaged in a good faith meet and confer conference with other
11 affected parties in an effort to resolve the dispute without court action. The certification must list
12 the date, manner, and participants to the conference. A good faith effort to confer requires a face13 to-face meeting or a telephone conference.
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6.3

Judicial Intervention. If the parties cannot resolve a challenge without court

15 intervention, the designating party may file and serve a motion to retain confidentiality under Local
16 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
17 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
18 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
19 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain
20 the material in question as confidential until the court rules on the challenge.
21 7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

22 LITIGATION
23

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

24 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
25 must:
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STIPULATED PROTECTIVE ORDER - 6
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

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(a)

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

2 subpoena or court order;
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(b)

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

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

7 the designating party whose confidential material may be affected.
8 8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

10 material to any person or in any circumstance not authorized under this agreement, the receiving
11 party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
12 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the
13 person or persons to whom unauthorized disclosures were made of all the terms of this agreement,
14 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
15 Bound” that is attached hereto as Exhibit A.
16 9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

17 MATERIAL
When a producing party gives notice to receiving parties that certain inadvertently

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19 produced material is subject to a claim of privilege or other protection, the obligations of the
20 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision
21 is not intended to modify whatever procedure may be established in an e-discovery order or
22 agreement between the parties that provides for production without prior privilege review. The
23 parties agree to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
24 10.

NON-TERMINATION AND RETURN OF DOCUMENTS

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STIPULATED PROTECTIVE ORDER - 7
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

1

Within 60 days after the termination of this action, including all appeals, each receiving

2 party must return all confidential material to the producing party, including all copies, extracts and
3 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction.
4

Notwithstanding this provision, counsel are entitled to retain one archival copy of all

5 documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
6 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work
7 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

9 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: March 23, 2018

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19 DATED: March 23, 2018
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26 DATED: March 23, 2018
STIPULATED PROTECTIVE ORDER - 8
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

s/ Michael R. Scott
Michael R. Scott, WSBA #12822
Jake Ewart, WSBA #38655
Jessica C. Kerr, WSBA #49866
999 Third Avenue, Suite 4600
Seattle, WA 98104
P: 206/623-1745
F: 206/623-7789
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
/s/ Dennis H. Walters
Dennis H. Walters, WSBA #9444
Karr Tuttle Campbell
701 5th Ave., Suite 3300
Seattle, WA 98104
P: [phone]
F: [phone]
E-mail: [e-mail]
Attorney for Counter-Defendants
Steel Lake Enterprises, LLC, Lakewood
Meadows Enterprises, LLC, Lynnwood
Retirement Living, LLC, and Woodlands
Associates, LLC
/s/ David J. Burman
David J. Burman, WSBA #10611

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

Steven D. Merriman, WSBA #44035
Perkins Coie
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
P: 206/359-8426
F: 206/359-9000
Email: [e-mail]
[e-mail]
Attorneys for Defendants

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6 DATED: March 23, 2018

/s/ Eric Pettit
Christopher G. Caldwell, pro hac vice
Noah Perez-Silverman, pro hac vice
Eric Pettit, pro hac vice
Boies Schiller & Flexner
725 South Figueroa Street
31st Floor
Los Angeles, CA 90017
P: 213/629-9040
F: 213/629-9022
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants

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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

16 documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding
17 in any other court, constitute a waiver by the producing party of any privilege applicable to those
18 documents, including the attorney-client privilege, attorney work-product protection, or any other
19 privilege or protection recognized by law.
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DATED this 28th day of March 2018.

A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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EXHIBIT A

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STIPULATED PROTECTIVE ORDER - 9
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2

I,

____________________________________

[print

or

type

full

name],

of

3 ____________________________________ [print or type full address], declare under penalty of
4 perjury that I have read in its entirety and understand the Stipulated Protective Order that was
5 issued by the United States District Court for the Western District of Washington on _________,
6 201__, in the case of Senior Housing Assistance Group v. AMTAX Holdings 260, LLC, et al.,
7 U.S. District Court, Western District of Washington Cause No. 2:17-cv-01115-RSM. I agree
8 to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand
9 and acknowledge that failure to so comply could expose me to sanctions and punishment in the
10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or
11 item that is subject to this Stipulated Protective Order to any person or entity except in strict
12 compliance with the provisions of this Order.
13

I further agree to submit to the jurisdiction of the United States District Court for the

14 Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective
15 Order, even if such enforcement proceedings occur after termination of this action.
16 Date:
17 City and State where sworn and signed:
18 Printed name:
19 Signature:
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STIPULATED PROTECTIVE ORDER - 10
CASE NO. C17-01115 RSM
#1151960 v1 / 72811-001

KARR TUTTLE CAMPBELL

701 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Main: [phone]
Fax: [phone]