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)

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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 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 dn@newmanlaw.com Samantha Everett, WSBA #47533 samantha@newmanlaw.com 2101 Fourth Ave., Ste. 1500 Seattle, WA 98121 (206) 274-2800 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 Ryan.parker@usdoj.gov Brinton.lucas@usdoj.gov 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 larondb@atgwa.gov colleenm1@atg.wa.gov 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

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