A.Z. v. Regence BlueShield et al

Filing 28

STIPULATED PROTECTIVE ORDER re parties' 27 Stipulation, signed by Judge Thomas S. Zilly. (SWT)

HON. THOMAS S. ZILLY

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10
11
12
13

A.Z. by and through her parents and
guardians, E.Z. and D.Z., individually, and on
behalf of the JUNO THERAPEUTICS, INC.
HEALTH BENEFIT PLAN, and on behalf of
similarly situated individuals and plans,

14

16
17
18

v.
REGENCE BLUESHIELD; and CAMBIA
HEALTH SOLUTIONS, INC.,
f/k/a THE REGENCE GROUP,
Defendants.

19
20
21

STIPULATED PROTECTIVE
ORDER

Plaintiff,

15

NO. 2:17-cv-01292-TSZ

I.

1.

STIPULATION

PURPOSES AND LIMITATIONS

22

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

23

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

24

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

25

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

26

protection on all disclosures or responses to discovery, the protection it affords from public
STIPULATED PROTECTIVE ORDER – 1

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

disclosure and use extends only to the limited information or items that are entitled to
2

confidential treatment under the applicable legal principles, and it does not presumptively entitle
3

parties to file confidential information under seal.
4

2.
5

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

6

produced or otherwise exchanged:
7



Protected Health Information (“PHI”)

8



Documents containing personal, financial, medical, proprietary or other

9

information subject to a right of privacy.
10

3.

SCOPE

11

The protections conferred by this agreement cover not only confidential material (as
12

defined above), but also (1) any information copied or extracted from confidential material; (2)
13

all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
14

conversations, or presentations by parties or their counsel that might reveal confidential
15

material. However, the protections conferred by this agreement do not cover information that is
16

in the public domain or becomes part of the public domain through trial or otherwise.
17

4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

18

4.1

Basic Principles. A receiving party may use confidential material that is

19

disclosed or produced by another party or by a non-party in connection with this case only for
20

prosecuting, defending, or attempting to settle this litigation. Confidential material may be
21

disclosed only to the categories of persons and under the conditions described in this agreement.
22

Confidential material must be stored and maintained by a receiving party at a location and in a
23

secure manner that ensures that access is limited to the persons authorized under this agreement.
24

4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

25

ordered by the court or permitted in writing by the designating party, a receiving party may
26

disclose any confidential material only to:
STIPULATED PROTECTIVE ORDER – 2

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

(a)

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

2

employees of counsel to whom it is reasonably necessary to disclose the information for this
3

litigation;
4

(b)

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

5

receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
6

agree that a particular document or material produced is for Attorney’s Eyes Only and is so

7

designated;
8

(c)
9

experts and consultants to whom disclosure is reasonably necessary for

this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

10

(Exhibit A);
11

(d)

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

(e)

copy or imaging services retained by counsel to assist in the duplication

12
13

of confidential material, provided that counsel for the party retaining the copy or imaging
14

service instructs the service not to disclose any confidential material to third parties and to
15

immediately return all originals and copies of any confidential material;
16

(f)
17

during their depositions, witnesses in the action to whom disclosure is

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

18

(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
19

transcribed deposition testimony or exhibits to depositions that reveal confidential material must
20

be separately bound by the court reporter and may not be disclosed to anyone except as
21

permitted under this agreement;
22

(g)

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

23

custodian or other person who otherwise possessed or knew the information.
24

4.3

Filing Confidential Material. Before filing confidential material or discussing or

25

referencing such material in court filings, the filing party shall confer with the designating party
26

to determine whether the designating party will remove the confidential designation, whether
STIPULATED PROTECTIVE ORDER – 3

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

the document can be redacted, or whether a motion to seal or stipulation and proposed order is
2

warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the
3

standards that will be applied when a party seeks permission from the court to file material
4

under seal.
5

5.

DESIGNATING PROTECTED MATERIAL

6

5.1

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

7

or non-party that designates information or items for protection under this agreement must take
8

care to limit any such designation to specific material that qualifies under the appropriate
9

standards. The designating party must designate for protection only those parts of material,
10

documents, items, or oral or written communications that qualify, so that other portions of the
11

material, documents, items, or communications for which protection is not warranted are not
12

swept unjustifiably within the ambit of this agreement.
13

Mass, indiscriminate, or routinized designations are prohibited. Designations that are
14

shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
15

unnecessarily encumber or delay the case development process or to impose unnecessary
16

expenses and burdens on other parties) expose the designating party to sanctions.
17

If it comes to a designating party’s attention that information or items that it designated

18

for protection do not qualify for protection, the designating party must promptly notify all other
19

parties that it is withdrawing the mistaken designation.
20

5.2

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

21

agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
22

ordered, disclosure or discovery material that qualifies for protection under this agreement must
23

be clearly so designated before or when the material is disclosed or produced.
24

(a)

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

25

and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial
26

proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that
STIPULATED PROTECTIVE ORDER – 4

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

contains confidential material. If only a portion or portions of the material on a page qualifies
2

for protection, the producing party also must clearly identify the protected portion(s) (e.g., by
3

making appropriate markings in the margins).
4

(b)

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

5

and any participating non-parties must identify on the record, during the deposition or other
6

pretrial proceeding, all protected testimony, without prejudice to their right to so designate other
7

testimony after reviewing the transcript. Any party or non-party may, within fifteen days after
8

receiving the transcript of the deposition or other pretrial proceeding, designate portions of the
9

transcript, or exhibits thereto, as confidential.

If a party or non-party desires to protect

10

confidential information at trial, the issue should be addressed during the pre-trial conference.
11

(c)

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

12

on the exterior of the container or containers in which the information or item is stored the word
13

“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,

14

the producing party, to the extent practicable, shall identify the protected portion(s).
15

5.3
16

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

17

right to secure protection under this agreement for such material. Upon timely correction of a
18

designation, the receiving party must make reasonable efforts to ensure that the material is
19

treated in accordance with the provisions of this agreement.
20

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

21

6.1
22

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

23

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
24

burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
25

challenge a confidentiality designation by electing not to mount a challenge promptly after the
26

original designation is disclosed.
STIPULATED PROTECTIVE ORDER – 5

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

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
3

confidential designations or for a protective order must include a certification, in the motion or
4

in a declaration or affidavit, that the movant has engaged in a good faith meet and confer
5

conference with other affected parties in an effort to resolve the dispute without court action.
6

The certification must list the date, manner, and participants to the conference. A good faith
7

effort to confer requires a face-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
10

Local 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
14

maintain 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
18

compels disclosure of any information or items designated in this action as “CONFIDENTIAL,”

19

that party 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

26

by the designating party whose confidential material may be affected.
STIPULATED PROTECTIVE ORDER – 6

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

If a receiving party learns that, by inadvertence or otherwise, it has disclosed
3

confidential material to any person or in any circumstance not authorized under this agreement,
4

the receiving party must immediately (a) notify in writing the designating party of the
5

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
6

protected material, (c) inform the person or persons to whom unauthorized disclosures were
7

made of all the terms of this agreement, and (d) request that such person or persons execute the
8

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

9

9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

10

MATERIAL
11
12
13
14
15
16

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 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.

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 agree upon appropriate methods of
21

destruction.
22

Notwithstanding this provision, counsel are entitled to retain one archival copy of all
23

documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
24

deposition and trial exhibits, expert reports, attorney work product, and consultant and expert
25

work product, even if such materials contain confidential material.
26

STIPULATED PROTECTIVE ORDER – 7

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

The confidentiality obligations imposed by this agreement shall remain in effect until a
2

designating party agrees otherwise in writing or a court orders otherwise.
3

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
4
5
6

DATED: December 20, 2017.
KARR TUTTLE CAMPBELL

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER

s/ Medora A. Marisseau
Medora A. Marisseau (WSBA #23114)
Stephanie R. Lakinski (WSBA #46391)

s/ Eleanor Hamburger
Eleanor Hamburger (WSBA #26478)
Richard E. Spoonemore (WSBA #21833)

Email: [e-mail]
[e-mail]

Email: [e-mail]
[e-mail]

7
8
9
10
11

Attorneys for Defendants
JORDAN LEWIS P.A.

12
13

s/ Jordan M. Lewis
Jordan M. Lewis (Admitted pro hac vice)

14

Email:

15

Attorneys for Plaintiff

[e-mail]

16
17
18
19
20
21
22
23
24
25
26

STIPULATED PROTECTIVE ORDER – 8

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1
2
3
4

II. ORDER
5

PURSUANT TO STIPULATION, IT IS SO ORDERED
6
7

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

8

proceeding in any other court, constitute a waiver by the producing party of any privilege
9

applicable to those documents, including the attorney-client privilege, attorney work-product
10

protection, or any other privilege or protection recognized by law.
11
12
13

DATED this 27th day of December, 2017.

A

14
15

Thomas S. Zilly
United States District Judge

16
17
18

Presented by:

19
20

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER

21
22
23

/s/ Eleanor Hamburger
Eleanor Hamburger (WSBA # 26478)
Richard E. Spoonemore (WSBA #21833)
Attorneys for Plaintiff

24
25
26

STIPULATED PROTECTIVE ORDER – 9

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

3

____________________________________

[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 A.Z. v. Regence Blueshield, No. 2:17-cv-01292-TSZ. I agree to comply with and to

8

be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge

9

that failure to so comply could expose me to sanctions and punishment in the nature of

10

contempt. I solemnly promise that I will not disclose in any manner any information or item that

11

is subject to this Stipulated Protective Order to any person or entity except in strict compliance

12

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

15

Protective 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

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
701 FIFTH AVENUE, SUITE 2560
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]