Karnoski et al v. Trump et al

Filing 182

STIPULATED FED. R. EVID. 502(D) ORDER re: 181 Joint Motion for Order. Signed by Judge Marsha J. Pechman. (PM)

The Honorable Marsha J. Pechman

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8
9

RYAN KARNOSKI, et al.,

10
11

Plaintiffs,
STATE OF WASHINGTON,

12
13
14
15

Plaintiff-Intervenor,

Case No: 2:17-cv-1297-MJP
STIPULATED UNIFORM
PROTECTIVE ORDER AND
CROSS-USE AGREEMENT
NOTE ON MOTION CALENDAR:
February 23, 2018

v.
DONALD TRUMP, et al.,
Defendants.

16
17
18
19
20
21
22
23
24
25
26
27
28

Pursuant to Federal Rule of Civil Procedure 26(c) and 5 U.S.C. § 552a(b)(11), and for
good cause shown, the Court hereby enters the following Stipulated Uniform Protective Order
and Cross-Use Agreement:
WHEREAS, pursuant to discovery or otherwise during the course of the above-captioned
action (“Karnoski v. Trump”); Doe v. Trump, No. 1:17-cv-1597 (D.D.C.); Stone v. Trump, No.
1:17-cv-02459 (D. Md.); and Stockman v. Trump, No. 17-cv-1799 (C.D. Cal.); (collectively, the
“Named Actions”); the parties may be required to disclose confidential and sensitive information
within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure and information
subject to the Privacy Act; and
WHEREAS, a protective order pursuant to Rule 26(c) and 5 U.S.C. § 552a(b)(11) is
necessary in the Named Actions to prevent unnecessary disclosure or dissemination of such
confidential and sensitive information held by the parties;
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 1

1

WHEREAS, there exists substantial overlap between the subject matter of the Named

2

Actions, making it efficient and appropriate to permit discovery produced by parties and non-

3

parties in any of the Named Actions to be used in Karnoski v. Trump;

4

THEREFORE, IT IS HEREBY ORDERED that the following provisions of this Uniform

5

Protective Order and Cross-Use Agreement (hereafter the “Order”) shall control the disclosure,

6

dissemination, and use of material produced in discovery in Karnoski v. Trump:

7

1.

Scope of Order: This Order shall govern the production, use, and disclosure of

8

all information and materials produced by any party or non-party in response to any discovery

9

request in Karnoski v. Trump (including, but not limited to, documents, interrogatory answers,

10

responses to requests to admit, and deposition transcripts and exhibits), all information contained

11

in those materials, and all copies, excerpts, or summaries of those materials (collectively,

12

“Discovery Material”).

13

2.

Designation of Protected Material: A party or non-party may, in good faith,

14

designate as CONFIDENTIAL and therefore subject to the protections and requirements of this

15

Order, any Discovery Material that the designating party reasonably believes contains

16

confidential information, including personal, proprietary, or sensitive information not generally

17

disclosed to the public. Subject to the exceptions set forth in Paragraph 6, Discovery Material

18

designated CONFIDENTIAL (“Protected Material”) shall be used by the receiving parties solely

19

for the prosecution or defense of the Named Actions and shall not be disclosed to any person or

20

entity unless specifically authorized by the terms of this Order or by further order of the Court.

21

Consistent with the requirements of this paragraph, a party may, within fifteen (15) business days

22

of receipt of the Discovery Materials, by written notice to the other parties, designate as

23

CONFIDENTIAL any Discovery Materials produced or given by the other parties or by a non-

24

party but not designated CONFIDENTIAL by that other party or non-party.

25

3.

Limitations on Use: Subject to the exceptions set forth in Paragraph 6, Protected

26

Material and its contents, as well as copies, summaries, notes, memoranda, and computer

27

databases relating thereto, shall be used solely for the purpose of the Named Actions, shall be

28

and remain confidential, and shall not be disclosed in any fashion, nor be used for any purpose
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 2

1

other than litigating the Named Actions.
4.

2

Limited Disclosure of Protected Material: Except as stated in paragraphs 5 and

3

6 below, Protected Material may be disclosed, subject to the specific procedures and provisions

4

contained in this Order, to the following persons and/or entities only:
a)

6
7

This Court and the officers, employees, and any stenographic reporters of such

b)

5

Counsel representing the parties in the Named Actions and their support

courts;

8

personnel whose functions require access to Protected Material (collectively “Attorney

9

Professionals”);

10

c)

Outside vendors who perform scanning, photocopying, computer classification,

11

translation, or similar clerical functions, retained by the parties or their counsel in the Named

12

Actions, but only for the purposes of performing such services and only so long as necessary to

13

perform those services;

14

d)

Independent experts consulted or retained by counsel for assistance in the

15

preparation or prosecution of claims or defenses in the Named Actions, to the extent reasonably

16

necessary for such experts to prepare a written opinion or to prepare to testify or to assist counsel

17

in the Named Actions;

18

e)

A witness who has been noticed or subpoenaed for deposition or a court

19

appearance in the Named Actions to the extent reasonably necessary for the preparation or giving

20

of his or her testimony about Protected Material;

21
22
23

f)

Any other person who is so designated by order of this Court or by written

agreement of the producing party.
No Protected Material may be disclosed to persons identified in subparagraphs (d), (e) or

24

(f) until they have reviewed this Order and have executed a written agreement in the form

25

attached hereto as Exhibit A, which executed agreements shall be maintained by counsel of

26

record for the party making the disclosure to such persons (provided that Counsel who makes

27

such disclosure shall retain the written agreement but shall not be required to produce it to

28

opposing counsel until the deposition of the person or without order of the Court).
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 3

1

5.

Order Affecting Pseudonym Plaintiff: Use and disclosure of the Pseudonym

2

Plaintiff’s identity in Stone v. Trump remain governed by the protective order entered by the

3

Stone Court on September 29, 2017 (“Stone Pseudonym Order”). Use and disclosure of the

4

Pseudonym Plaintiffs’ identities in Doe v. Trump remain governed by the September 13, 2017

5

protective order entered in Doe v. Trump (“Doe Pseudonym Order”). Use and disclosure of the

6

Pseudonym Plaintiff’s identity in Karnoski v. Trump remain governed by the Order Granting

7

Motion to Proceed Under Pseudonym entered by the Court on October 10, 2017 (“Karnoski

8

Pseudonym Order”).

9

Karnoski and Doe Pseudonym Orders, the Pseudonym Orders shall prevail.

10

6.

Insofar as there is any conflict between this Order and the Stone,

Cross-Use of Discovery Material: Any Discovery Material produced or

11

provided by any party or non-party in any of the Named Actions shall be deemed produced in the

12

other Named Actions and shall be treated consistently with the terms of this Order, with the

13

exception of any Discovery Materials that include personally identifying information in the

14

Named Actions, including information that would lead to the discovery of the identities of

15

plaintiffs proceeding anonymously or other information protected by the Pseudonym Orders.

16

7.

Effect of Designation: The designation of Protected Material pursuant to the

17

Order shall not be construed as a waiver of any objection or a concession by any party that such

18

Protected Material is relevant or material to any issue. Nor shall a failure to object to the

19

designation of any such Protected Material be construed as a concession by the receiving parties

20

that such Protected Material is, in fact, confidential or otherwise entitled to protection under the

21

terms of this Order. All parties maintain their respective rights to object to production of any

22

requested documents on the grounds that they are otherwise not discoverable, including, but not

23

limited to, objections based on any applicable privilege, undue burden, overbreadth, relevance,

24

and proportionality to the needs of the case. Any party may seek an order from the Court

25

determining that specified Protected Material is not entitled to be treated as CONFIDENTIAL.

26

8.

Mechanics of Designation: No designation of CONFIDENTIAL shall be

27

effective as to a particular page of Protected Material unless there is placed on or affixed to each

28

page of such Protected Material a marking of “CONFIDENTIAL.” In the case of electronic
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 4

1

documents produced in native format, such designation may be made on the physical media (e.g.,

2

disk, flash drive) containing such electronic documents and on a slipsheet accompanying the

3

native file if the file is served electronically. Testimony may be designated CONFIDENTIAL

4

within ten (10) business days after receipt of a transcript of said testimony by furnishing to

5

counsel for the other parties a detailed statement of the specific portions of any such information,

6

by page and line number or exhibit number, by designating lines and pages as confidential by

7

highlighting or digital marking, or by a statement on the record at the time the testimony is

8

given. Pending the expiration of said ten (10) business days, all parties shall presumptively treat

9

the entire deposition transcript as CONFIDENTIAL. In addition to the requirements of this

10

Order, the court reporter before whom a deposition or other testimony relating to Protected

11

Material is taken shall, at the request of any party, designate a portion of the deposition or any

12

exhibits containing Protected Material as CONFIDENTIAL.

13

9.

No Waiver; Late Designation: The failure of a party to designate information or

14

documents as CONFIDENTIAL in accordance with this Order, and the failure to object to such a

15

designation, is not a waiver of the right to do so and shall not preclude a party at a later time

16

from subsequently designating or objecting to the designation of such information or documents

17

as CONFIDENTIAL. The parties understand and acknowledge that a party’s failure to designate

18

information or documents as CONFIDENTIAL relieves the other parties of any obligation of

19

confidentiality until such a designation is made. Promptly after written notice to the receiving

20

parties of any such subsequent designation by the producing party, which notice shall

21

specifically identify the documents or information to be designated, the parties shall confer and

22

agree upon a method to mark as CONFIDENTIAL any such subsequently designated documents.

23

All documents containing any such subsequently designated information will be thereafter

24

treated in accordance with this Order.

25

10.

Objections to Designations: A party may, at any time, make a good faith

26

challenge to the propriety of a Confidential Information designation. In the event a party objects

27

in writing to the designation of any material under this Order, the objecting party shall consult

28

with the designating party to attempt to resolve their differences. If the parties are unable to
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 5

1

reach an accord as to the proper designation of the material, after giving notice to the designating

2

party, either party may apply to the Court for a ruling regarding the designation. If such a motion

3

is made, the designating party has the burden of establishing that the designation is proper. If a

4

timely motion is made, any documents or other materials that have been designated

5

CONFIDENTIAL that are the subject of the motion shall be treated as Confidential until such

6

time as the Court rules that such materials should not be treated as Confidential.

7

11.

Control of Protected Material: All Protected Material shall be maintained under

8

the direct control of counsel of record of the Named Actions, who shall be responsible for

9

preventing any disclosure thereof, except as permitted by the terms of this Order. Attorney

10

Professionals may review and make working copies, abstracts, and digests of Protected Material

11

for use in connection with the Named Actions, and such working copies, abstracts, and digests

12

shall be deemed Protected Material under the terms of this Order provided that access to

13

Protected Material, in whatever form stored or reproduced, shall be limited to those persons

14

entitled to receive such information pursuant to the terms of this Order and shall be appropriately

15

marked in accordance with the terms of this Order.

16

12.

Return: Unless otherwise instructed by the Court, and subject to any applicable

17

document retention requirements, at the conclusion of this action, including any appeals, all

18

Protected Material, in whatever form stored or reproduced, shall be returned to counsel of record

19

for the party who produced said Protected Material, or the receiving parties shall certify that all

20

such information has been destroyed, except that the attorneys for the parties shall be entitled to

21

retain all litigation documents, including exhibits and their own memoranda, containing

22

Protected Material. Such litigation documents and memoranda shall be used only for the purpose

23

of preserving files this action, and shall not, without the written permission of the designating

24

party or an order of this Court, be disclosed to anyone other than those to whom such

25

information was actually disclosed, in accordance with this Order, during the course of the

26

Named Actions.

27
28

13.

Filing under Seal: Any party seeking to file documents containing Protected

STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 6

1

Material shall file a motion to file under seal pursuant to all applicable Federal Rules of Civil

2

Procedure and the Local Rules of this Court.

3

14.

Subpoena of Protected Material: If a person in possession of Protected Material

4

who is not the producing party with respect to that Protected Material receives a subpoena or

5

other request that would require production or other disclosure of Protected Material, that person

6

shall immediately give written notice to counsel for the producing party, identifying the

7

Protected Material sought and the date and time that production or other disclosure is required. In

8

no event should production or disclosure be made without written approval by counsel for the

9

producing party or by further order of the Court or another court of competent jurisdiction.

10

15.

Inadvertent Disclosure: Should any Protected Material be disclosed, through

11

inadvertence or otherwise, to any person and/or entity not entitled to access or review same, then

12

such person and/or entity:

13

(a) Shall be informed promptly of all provisions of this Order by the responsible party;

14

(b) Shall immediately be identified to all counsel of record in all Named Actions by the

15
16
17
18

responsible party; and
(c) Shall be requested, in writing by the responsible party, to return the material to the
responsible party.
Inadvertent disclosure by the disclosing party of any Protected Material, regardless of

19

whether said Protected Material was so designated at the time of disclosure, shall not be deemed

20

a waiver in whole or in part of the protectability of the Protected Material in accordance with the

21

terms of this Order, either as to the specific Protected Material disclosed, or as to any other

22

information relating thereto or relating to the same or related subject matter.

23

16.

Modification: This Order is without prejudice to the right of any party to apply at

24

any time for additional protection, or to amend, modify, or rescind the restrictions of this Order.

25

The party must provide written notice to counsel of record for all parties in the Named Actions

26

specifying the portion(s) of this Order it seeks to amend, modify, or rescind and any additional

27

provisions it may seek to add to the Order. The written notice must be served five (5) business

28

days in advance of filing any such motion. The parties expressly reserve the right to seek
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 7

1
2

modification, amendment, or rescission of this Order by mutual agreement in writing.
17.

Enforcement: All persons to whom Protected Material is disclosed shall be

3

subject to the jurisdiction of this Court, for the purpose of enforcing this Order. This Order shall

4

continue in full force and effect, and shall be binding upon the parties and all persons to whom

5

Protected Material has been disclosed, both during and after the pendency of this case.

6

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Respectfully submitted February 12, 2018.
NEWMAN DU WORS LLP

UNITED STATES DEPARTMENT OF JUSTICE

s/Samantha Everett
Derek A. Newman, WSBA #26967
[e-mail]
Samantha Everett, WSBA #47533
[e-mail]
2101 Fourth Ave., Ste. 1500
Seattle, WA 98121
[phone]

s/Ryan B. Parker
Ryan B. Parker
Gerald Brinton Lucas
Andrew Carmichael
United States Department of Justice
Civil Division, Federal Programs Branch
950 Pennsylvania Ave., NW Rm 7326
Washington, DC 20530
[e-mail]
[e-mail]
Andrew.e.carmichael.usdoj.gov

LAMBDA LEGAL DEFENSE AND EDUCATION
FUND, INC.
Camilla B. Taylor (admitted pro hac vice)
Tara L. Borelli, WSBA #36759
Peter C. Renn (admitted pro hac vice)
Natalie Nardecchia (admitted pro hac vice)
Sasha Buchert (admitted pro hac vice)
Kara N. Ingelhart (admitted pro hac vice)
Carl Charles (admitted pro hac vice)
OUTSERVE-SLDN, INC.
Peter Perkowski (admitted pro hac vice)

24

KIRKLAND & ELLIS LLP
James F. Hurst, P.C. (admitted pro hac vice)
Jordan Heinz (admitted pro hac vice)
Scott Lerner (admitted pro hac vice)
Vanessa Barsanti (admitted pro hac vice)
Daniel Siegfried (admitted pro hac vice)
Ben Tyson (admitted pro hac vice)

25

Attorneys for Plaintiffs

22
23

26
27
28
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 8

Attorneys for Defendants
OFFICE OF THE ATTORNEY GENERAL
s/Colleen Melody
La Rond Baker
Colleen Melody
Assistant Attorney General
Office of the Attorney General
800 Fifth Avenue, Suite 200
Seattle, WA 98104
[e-mail]
[e-mail]
Counsel for Intervenor Plaintiff State of
Washington

ORDER

1
2

PURSUANT TO STIPULATION, IT IS SO ORDERED

3

IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any

4

documents in this proceeding shall not, for the purposes of this proceeding or any other

5

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

6

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

7

protection, or any other privilege or protection recognized by law.

8
9

DATED this 14th day of February, 2018.

10

A

11
12

Marsha J. Pechman
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 9

1

EXHIBIT A

2

ACKNOWLEDGEMENT 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 Uniform Protective Order

6

and Cross-Use Agreement that was issued by the United States District Court for the Western

7

District of Washington on _______ in the case of Karnoski, et al. v. Trump, et al., Case Number

8

2:17-CV-1297-MJP. I agree to comply with and to be bound by all the terms of this Stipulated

9

Uniform Protective Order and Cross-Use Agreement and I understand and acknowledge that

10

failure to so comply could expose me to sanctions and punishment in the nature of contempt. I

11

solemnly promise that I will not disclose in any manner any information or item that is subject to

12

this Stipulated Uniform Protective Order and Cross-Use Agreement to any person or entity

13

except in strict compliance with the provisions of this Order.

14

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 Uniform

16

Protective Order and Cross-Use Agreement, even if such enforcement proceedings occur after

17

termination of this action.

18
19

Date: _______________

20

City and State where sworn and signed: ____________________________

21

Printed name: _________________________

22

Signature____________________________

23
24
25
26
27
28
STIPULATED UNIFORM PROTECTIVE ORDER
AND CROSS-USE AGREEMENT - 10