Edge et al v. City of Everett

Filing 41

STIPULATED PROTECTIVE ORDER re parties' 38 Joint MOTION for Protective Order . Signed by Judge Marsha J. Pechman. (TH)

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The Honorable Marsha J. Pechman

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOVANNA EDGE, et al.,

Case No. 2:17-cv-01361-MJP

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Plaintiffs,

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STIPULATED PROTECTIVE ORDER

v.

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CITY OF EVERETT, a Washington Municipal
Corporation,

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NOTE ON MOTION CALENDAR:
November 17, 2017

Defendant.

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In accordance with LCR 26(c)(2) the Parties submit this Stipulated Protective Order.

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Based upon the representations and submissions of the parties, the Court’s records and files in

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this matter, and good cause appearing therefore, the Court enters the following Protective Order

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(hereinafter “Order” or “Protective Order”) to govern the discovery, use, and handling of

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Protected Material produced by parties and non-parties in the above-captioned case. IT IS

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HEREBY ORDERED that:

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1.

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PURPOSE AND LIMITATIONS
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

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

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parties 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

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

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parties to file confidential information under seal.

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2.

“CONFIDENTIAL” MATERIAL

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

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produced or otherwise exchanged: Photographs and other visual depictions that might embarrass

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or expose the person depicted to criticism or ridicule, as designated by Plaintiffs; physical and

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email or social media identifying information that would allow persons to identify the residence

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or name of confidential social media accounts; confidential pricing and business information

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belonging to plaintiffs; certain law enforcement information and data in the possession of the

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City of Everett; certain business records of Plaintiffs; documents exempt under the Washington

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Public Records Act, chapter 42.56 RCW; materials subject to LCR 5.2(a).

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3.

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

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

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

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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

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

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4.

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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1.

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

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

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

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

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

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

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4.2.

Disclosure of “CONFIDENTIAL” Information or Items: Unless otherwise

ordered by the court or permitted in writing by the designating party, a receiving party may
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disclose any confidential material only to:
(a)

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

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of counsel to whom it is reasonably necessary to disclose the information

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for this litigation;

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(b)

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

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receiving party to whom disclosure is reasonably necessary for this

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litigation, unless the parties agree that a particular document or material

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produced is for Attorney’s Eyes Only and is so designated;

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(c)

experts and consultants to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A);

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(d)

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

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(e)

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

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confidential material, provided that counsel for the party retaining the

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copy or imaging service instructs the service not to disclose any

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confidential material to third parties and to immediately return all originals

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and copies of any confidential material;

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(f)

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

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reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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designating party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal confidential material must

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be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this agreement;

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(g)

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

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custodian or other person who otherwise possessed or knew the

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information.

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4.3.

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Filing Confidential Material: Before filing confidential material or discussing or

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

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to determine whether the designating party will remove the confidential designation, whether the

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

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

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

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seal.

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5.

DESIGNATING PROTECTED MATERIAL

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Exercise of Restraint and Care in Designating Material for Protection: Each

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

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

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

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

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

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swept unjustifiably within the ambit of this agreement.

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

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

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

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

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

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

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parties that it is withdrawing the mistaken designation.

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

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

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

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

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(a)

Information in documentary form: (e.g., paper or electronic documents
and deposition exhibits, but excluding transcripts of depositions or other

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pretrial or trial proceedings), the designating party must affix the word

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“CONFIDENTIAL” to each page that contains confidential material. If

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only a portion or portions of the material on a page qualifies for

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protection, the producing party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).
(b)

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Testimony given in deposition or in other pretrial proceedings: the

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parties and any participating non-parties must identify on the record, during

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the deposition or other pretrial proceeding, all protected testimony, without

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prejudice to their right to so designate other testimony after reviewing the

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transcript. Any party or non-party may, within fifteen days after receiving the

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

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the transcript, or exhibits thereto, as confidential. If a party or non-party

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desires to protect confidential information at trial, the issue should be

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addressed during the pre-trial conference.

(c)

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

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on the exterior of the container or containers in which the information or

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item is stored the word “CONFIDENTIAL.” If only a portion or portions

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of the information or item warrant protection, the producing party, to the

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extent practicable, shall identify the protected portion(s).

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Inadvertent Failures to Designate: If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the designating party’s

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

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

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treated in accordance with the provisions of this agreement.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges: Any party or non-party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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burdens, or a significant disruption or delay of the litigation, a party does not waive its right to

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

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original designation is disclosed.
6.2

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Meet and Confer: The parties must make every attempt to resolve any dispute

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regarding confidential designations without court involvement. Any motion regarding

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

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

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

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

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confer requires a face-to-face meeting or a telephone conference.
6.3

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Judicial Intervention: If the parties cannot resolve a challenge without court

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intervention, the designating party may file and serve a motion to retain confidentiality under

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Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of

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persuasion in any such motion shall be on the designating party. Frivolous challenges, and those

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made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on

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other parties) may expose the challenging party to sanctions. All parties shall continue to

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maintain the material in question as confidential until the court rules on the challenge.

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7.

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OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

If a party is served with a subpoena or a court order issued in other litigation that compels

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

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party must:

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(a)

subpoena or court order;

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promptly notify the designating party in writing and include a copy of the

(b)

promptly notify in writing the party who caused the subpoena or order to issue in

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the other litigation that some or all of the material covered by the subpoena or

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order is subject to this agreement. Such notification shall include a copy of this

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agreement; and
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(c)

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designating party whose confidential material may be affected.

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cooperate with respect to all reasonable procedures sought to be pursued by the

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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material to any person or in any circumstance not authorized under this agreement, the receiving

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

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

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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of

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this agreement and (d) request that such person or persons execute the “Acknowledgment and

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

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9.

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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a producing party gives notice to receiving parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order or agreement that provides for production without prior privilege review. The parties agree

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to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.

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10.

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NON TERMINATION AND RETURN OF DOCUMENTS
Within 60 days after the termination of this action, including all appeals, each receiving

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party must return all confidential material to the producing party, including all copies, extracts

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and summaries thereof. Alternatively, the parties may agree upon appropriate methods of

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destruction

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

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

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

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work product, even if such materials contain confidential material.

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

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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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Respectfully submitted November 13, 2017.

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Newman Du Wors LLP

Pacifica Law Group

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s/ Keith Scully
Derek A. Newman, WSBA No. 26967
[e-mail]
Jessica V. Newman, WSBA #28080
[e-mail]
Keith Scully, WSBA #28677
[e-mail]
Jason Sykes, WSBA #44369
[e-mail]

s/ Sarah C. Johnson
Mathew J. Segal, WSBA #29797
[e-mail]
Sarah S. Washburn, WSBA #44418
[e-mail]
Sarah C. Johnson, WSBA #34529
[e-mail]
1191 Second Avenue, Suite 2000
Seattle, WA 98101

Attorneys for Plaintiffs

Attorneys for Defendant

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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

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

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

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

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

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DATED this 13th day of November, 2017.

A

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Marsha J. Pechman
United States District Judge

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STIPULATED PROTECTIVE ORDER - 8
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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I, ____________________________________ [print or type full name], of

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____________________________________ [print or type full address], declare under penalty of

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perjury that I have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Western District of Washington on [date] in the

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case of ________________ [insert formal name of the case and the number and initials assigned

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to it by the court]. I agree to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Western District of Washington for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this action.

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Date: _______________

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City and State where sworn and signed: ____________________________

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Printed name: _________________________

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Signature____________________________

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STIPULATED PROTECTIVE ORDER - 9
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