Silcox v. AutoNation Inc et al

Filing 16

STIPULATED PROTECTIVE ORDER re: 15 Stipulated MOTION for entry of protective order signed by Judge Ricardo S Martinez. (PM)

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

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ROBERT SILCOX,

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Plaintiff,

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v.

Case No. C17-1131 RSM
STIPULATED PROTECTIVE ORDER

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AN/PF ACQUISITION CORP., d/b/a
AUTONATION FORD BELLEVUE, a Delaware
corporation,

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Defendant.

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PURPOSES AND LIMITATIONS

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

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private information for which special protection may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective Order. The parties

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acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket

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protection on all disclosures or responses to discovery, the protection it affords from public

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disclosure and use extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles, and it does not presumptively entitle parties to file

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confidential information under seal.

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STIPULATED PROTECTIVE ORDER - 1

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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“Confidential” material shall include the following documents and tangible things
produced or otherwise exchanged, whether such information is found in documents, designated
portions of deposition testimony, or responses to interrogatories, requests for admissions, or
requests for production of documents: information regarding AutoNation’s customers or clientele
(whether potential, current, or former); the personal, private, medical, or financial information of
AutoNation’s current or former employees (including Plaintiff), including but not limited to birth
dates, social security numbers, personal contact information, health and medical information, leave
of absence information, compensation information, performance evaluations (whether formal or
informal), and disciplinary documents or history; and any of Defendant’s documents or
information regarding auto services, finances, returns, and/or compensation data.
3.

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“CONFIDENTIAL” MATERIAL

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.
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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STIPULATED PROTECTIVE ORDER - 2

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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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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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

(b)

the officers, directors, and employees (including in house counsel) of the

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

experts and consultants to whom disclosure is reasonably necessary for this

litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d)

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

(e)

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
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)

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;
(g)

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

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

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STIPULATED PROTECTIVE ORDER - 3

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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4.3

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 for protection, so that other
portions of the material, documents, items, 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.

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STIPULATED PROTECTIVE ORDER - 4

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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(a)

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).

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(b)

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

(c)

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

on the exterior of the container or containers in which the information or item is stored the word
“CONFIDENTIAL.” 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).
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.

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STIPULATED PROTECTIVE ORDER - 5

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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6.1

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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

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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.

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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

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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 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.
///
///

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STIPULATED PROTECTIVE ORDER - 6

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

If a party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
must:

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(a)

subpoena or court order;

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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

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.
9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

MATERIAL
When a producing party gives notice to receiving parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision

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STIPULATED PROTECTIVE ORDER - 7

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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

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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

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.

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DATED: December 6, 2017

s/Wright A. Noel
Attorneys for Plaintiff

DATED: December 6, 2017

s/Ryan P. Hammond
Attorneys for Defendant

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///

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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STIPULATED PROTECTIVE ORDER - 8

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any
documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding
in any other court, constitute a waiver by the producing party of any privilege applicable to those
documents, including the attorney-client privilege, attorney work-product protection, or any other
privilege or protection recognized by law.

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DATED this 8th day of December 2017.

A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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STIPULATED PROTECTIVE ORDER - 9

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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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

____________________________________ [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
______________ [date] in the case of ROBERT SILCOX V. AN/PF ACQUISITION CORP.
D/B/A AUTONATION FORD BELLEVUE, No. 2:17-CV-01131-RSM, 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.
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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Firmwide:151638475.1 025300.2055

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STIPULATED PROTECTIVE ORDER - 10

Case No. 2:17-cv-01131-RSM

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300