160 Lee Street Condominium Homeowners' Association v. Mid-Century Insurance Company

Filing 19

MODEL STIPULATED PROTECTIVE ORDER signed by Judge Marsha J. Pechman. (PM)

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The Honorable Marsha J. Pechman 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 160 LEE STREET CONDOMINIUM HOMEOWERS’ ASSOCIATION, 11 12 CASE NO. 2:17-cv-01170 MJP MODEL STIPULATED PROTECTIVE ORDER Plaintiff, 13 v. MID-CENTURY INSURANCE COMPANY, 14 15 Defendant. 16 17 1. PURPOSES AND LIMITATIONS 18 Discovery in this action is likely to involve production of confidential, proprietary, or 19 private information for which special protection may be warranted. Accordingly, the parties hereby 20 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 21 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 22 protection on all disclosures or responses to discovery, the protection it affords from public 23 disclosure and use extends only to the limited information or items that are entitled to confidential 24 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 25 confidential information under seal. 26 Stipulated Protective Order - 1 1 2. “CONFIDENTIAL” MATERIAL 2 “Confidential” material shall include the following documents and tangible things 3 produced or otherwise exchanged: financial records of the plaintiff and possibly of individual 4 members of the plaintiff HOA, as well as any personally identifying information such a Social 5 Security numbers, birth dates, account numbers, and the like that should not be made generally 6 available to the public at large; defendant’s underwriting files; defendant’s manuals and 7 guidelines; defendant’s training materials; documents relating to defendant’s policies, practices 8 and procedures; defendant’s organizational charts; and defendant’s claims-handling standards. 9 3. 10 SCOPE The protections conferred by this agreement cover not only confidential material (as 11 defined above), but also (1) any information copied or extracted from confidential material; (2) all 12 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 13 conversations, or presentations by parties or their counsel that might reveal confidential material. 14 However, the protections conferred by this agreement do not cover information that is in 15 the public domain or becomes part of the public domain through trial or otherwise. 16 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 17 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 18 or produced by another party or by a non-party in connection with this case only for prosecuting, 19 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 20 categories of persons and under the conditions described in this agreement. Confidential material 21 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 22 that access is limited to the persons authorized under this agreement. 23 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 24 by the court or permitted in writing by the designating party, a receiving party may disclose any 25 confidential material only to: 26 Stipulated Protective Order - 2 1 (a) the receiving party’s counsel of record in this action, as well as employees 2 of counsel to whom it is reasonably necessary to disclose the information for this litigation; 3 (b) the officers, directors, and employees (including in house counsel) of the 4 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 5 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 6 designated; 7 (c) experts and consultants to whom disclosure is reasonably necessary for this 8 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the court, court personnel, and court reporters and their staff; 10 (e) copy or imaging services retained by counsel to assist in the duplication of 11 confidential material, provided that counsel for the party retaining the copy or imaging service 12 instructs the service not to disclose any confidential material to third parties and to immediately 13 return all originals and copies of any confidential material; 14 (f) during their depositions, witnesses in the action to whom disclosure is 15 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 16 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 17 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 18 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 19 under this agreement; 20 (g) the author or recipient of a document containing the information or a 21 custodian or other person who otherwise possessed or knew the information. 22 4.3 Filing Confidential Material. Before filing confidential material or discussing or 23 referencing such material in court filings, the filing party shall confer with the designating party 24 to determine whether the designating party will remove the confidential designation, whether the 25 document can be redacted, or whether a motion to seal or stipulation and proposed order is 26 Stipulated Protective Order - 3 1 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards 2 that will be applied when a party seeks permission from the court to file material under seal. 3 5. DESIGNATING PROTECTED MATERIAL 4 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 5 or non-party that designates information or items for protection under this agreement must take 6 care to limit any such designation to specific material that qualifies under the appropriate 7 standards. The designating party must designate for protection only those parts of material, 8 documents, items, or oral or written communications that qualify, so that other portions of the 9 material, documents, items, or communications for which protection is not warranted are not swept 10 unjustifiably within the ambit of this agreement. 11 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 12 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 13 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 14 and burdens on other parties) expose the designating party to sanctions. 15 If it comes to a designating party’s attention that information or items that it designated for 16 protection do not qualify for protection, the designating party must promptly notify all other parties 17 that it is withdrawing the mistaken designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in this 19 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 20 ordered, disclosure or discovery material that qualifies for protection under this agreement must 21 be clearly so designated before or when the material is disclosed or produced. 22 (a) Information in documentary form: (e.g., paper or electronic documents and 23 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 24 the designating party must affix the word “CONFIDENTIAL” to each page that contains 25 confidential material. If only a portion or portions of the material on a page qualifies for protection, 26 Stipulated Protective Order - 4 1 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 2 markings in the margins). 3 (b) Testimony given in deposition or in other pretrial proceedings: the parties 4 and any participating non-parties must identify on the record, during the deposition or other pretrial 5 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 6 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 7 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 8 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 9 at trial, the issue should be addressed during the pre-trial conference. 10 (c) Other tangible items: the producing party must affix in a prominent place 11 on the exterior of the container or containers in which the information or item is stored the word 12 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 13 the producing party, to the extent practicable, shall identify the protected portion(s). 14 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 15 designate qualified information or items does not, standing alone, waive the designating party’s 16 right to secure protection under this agreement for such material. Upon timely correction of a 17 designation, the receiving party must make reasonable efforts to ensure that the material is treated 18 in accordance with the provisions of this agreement. 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 21 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 22 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 23 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 24 challenge a confidentiality designation by electing not to mount a challenge promptly after the 25 original designation is disclosed. 26 Stipulated Protective Order - 5 1 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 2 regarding confidential designations without court involvement. Any motion regarding confidential 3 designations or for a protective order must include a certification, in the motion or in a declaration 4 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 5 affected parties in an effort to resolve the dispute without court action. The certification must list 6 the date, manner, and participants to the conference. A good faith effort to confer requires a face7 to-face meeting or a telephone conference. 8 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 9 intervention, the designating party may file and serve a motion to retain confidentiality under Local 10 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 11 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 12 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 13 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 14 the material in question as confidential until the court rules on the challenge. 15 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 16 LITIGATION 17 If a party is served with a subpoena or a court order issued in other litigation that compels 18 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 19 must: 20 (a) promptly notify the designating party in writing and include a copy of the 21 subpoena or court order; 22 (b) promptly notify in writing the party who caused the subpoena or order to 23 issue in the other litigation that some or all of the material covered by the subpoena or order is 24 subject to this agreement. Such notification shall include a copy of this agreement; and 25 (c) cooperate with respect to all reasonable procedures sought to be pursued by 26 the designating party whose confidential material may be affected. Stipulated Protective Order - 6 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 disclosures, 5 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 6 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 7 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 8 Bound” that is attached hereto as Exhibit A. 9 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 10 MATERIAL When a producing party gives notice to receiving parties that certain inadvertently 11 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 provision 14 is not intended to modify whatever procedure may be established in an e-discovery order or 15 agreement that provides for production without prior privilege review. The parties agree to the 16 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 and 20 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 21 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 22 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 23 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 24 product, even if such materials contain confidential material. 25 The confidentiality obligations imposed by this agreement shall remain in effect until a 26 designating party agrees otherwise in writing or a court orders otherwise. Stipulated Protective Order - 7 1 2 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 3 4 DATED: October 3, 2017 s/ Steven A. Stolle_________ 5 Steven A. Stolle, WSBA No. 30807 STOLLE LAW GROUP, P.S. 1001 Fourth Avenue, Suite 4050 Seattle, WA 98154 Tel: 206-228-2214 Fax: 206-284-3439 Email: sstolle@stollelawgroup.com Attorneys for Plaintiff 6 7 8 9 10 DATED: October 3, 2017 11 s/Francis J. Maloney__________ Francis J. Maloney, WSBA No. 45081 Maloney Lauersdorf Reiner, PC 1111 Burnside Street, Suite 300 Portland, Oregon 97214 Tel: 503-245-1518 Fax: 503-245-1417 Email: fjm@mlrlegalteam.com Attorneys for Defendant 12 13 14 15 16 /// 17 /// 18 /// 19 /// 20 /// 21 PURSUANT TO STIPULATION, IT IS SO ORDERED 22 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 23 documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding 24 in any other court, constitute a waiver by the producing party of any privilege applicable to those 25 26 Stipulated Protective Order - 8 1 documents, including the attorney-client privilege, attorney work-product protection, or any other 2 privilege or protection recognized by law. 3 4 DATED: October 4, 2017 5 6 A 7 Marsha J. Pechman United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Stipulated Protective Order - 9 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 of 5 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 the 7 case of 160 Lee Street Condominium Homeowners’ Association v. Mid-Century Insurance 8 Company, No. 2:17-cv-01170 MJP. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated Protective 12 Order to any person or entity except in strict 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: 20 21 22 23 24 25 26 Stipulated Protective Order - 10

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