Wells Fargo Insurance Services USA, Inc v. Ogden et al

Filing 40

AMENDED PROTECTIVE ORDER re parties' 39 Stipulation, by Judge Robert S. Lasnik. (SWT)

The Honorable Robert S. Lasnik

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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USI INSURANCE SERVICES NATIONAL,
INC. formerly known as WELLS FARGO
INSURANCE SERVICES USA, INC., a North
Carolina corporation,
Plaintiff,

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STANLEY OGDEN, an individual; MARCIA
OGDEN, an individual; ELEANOR L’KEEFE,
an individual; LEWIS DORRINGTON, an
individual; JOHN HASKELL, JR., an individual;
MARY MARK, an individual; ABD
INSURANCE AND FINANCIAL SERVICES,
INC., a Delaware corporation,
Defendants.

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AMENDED STIPULATED
PROTECTIVE ORDER

v.

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Case No. 2:17-cv-01394

1.

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

private information for which special protection may be warranted. Accordingly, the parties
hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The
parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
protection on all disclosures or responses to discovery, the protection it affords from public
disclosure and use extends only to the limited information or items that are entitled to
AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 1

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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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 shall be limited to information not in the public domain contained

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“CONFIDENTIAL” MATERIAL

in the following documents and tangible things produced or otherwise exchanged:

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(a) The identity of and non-public information regarding the parties’ customers;

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(b) The parties’ non-public and proprietary financial, accounting, and commercial

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information, non-public and proprietary data or applications, or other proprietary or

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trade secret information;
(c) Information the producing party is obligated to maintain as confidential by contract

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or otherwise.

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As

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used

herein,

“confidential

material”

includes

material

designated

as

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“CONFIDENTIAL” unless clearly stated otherwise. The foregoing reference to categories of

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material, shall not constitute an admission or concession, or permit any inference, that the parties

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agree that the documents and information identified are, in fact, properly discoverable or

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relevant, nor shall it foreclose any party from objecting to the disclosure of any of the above

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listed information and/or moving the Court for an order to prevent the disclosure of such

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information, document or thing, and the parties specifically reserve all of their rights to do so.

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3.

SCOPE

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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;

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

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testimony, conversations, or presentations by parties or their counsel that might reveal

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confidential material.

However, the protections conferred by this agreement do not cover

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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 2

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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information that is in the public domain or becomes part of the public domain through trial or

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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 disclosed

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

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

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the categories of persons and under the conditions described in this agreement. Confidential

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

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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

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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:

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(a) the receiving party’s counsel of record in this action, as well as employees of
counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b) the officers, directors, and employees (including in house counsel) of the
receiving party to whom disclosure is reasonably necessary for this litigation;

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(c) experts and consultants to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement 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 copy or imaging service

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

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return all originals 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 Agreement to Be Bound”

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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 3

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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

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transcribed deposition 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 anyone except as permitted

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under this agreement;
(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 information.
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.

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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.

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

DESIGNATING PROTECTED MATERIAL
5.1

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

or non-party that designates information or items for protection under this agreement must take
care to limit any such designation to specific material that qualifies under the appropriate
standards. The designating party must designate for protection only those parts of material,
documents, items, or oral or written communications that qualify, so that other portions of the
material, documents, items, or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this agreement.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessarily encumber or delay the case development process or to impose unnecessary
expenses and burdens on other parties) expose the designating party to sanctions.

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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 4

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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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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5.2

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

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deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),

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the designating party must affix the word “CONFIDENTIAL” to each page that contains

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confidential material. If 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 portion(s) (e.g., by

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making appropriate markings in the margins).

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(b) Testimony given in deposition or in other pretrial proceedings: the parties and

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

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

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

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

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transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect

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

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(c) Other tangible items: the producing party must affix in a prominent place on

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

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

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

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5.3

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
AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 5

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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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

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

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regarding confidential designations without court involvement.

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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 conference

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

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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.

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6.3

Any motion regarding

The

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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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 6

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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7.

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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 party
must:
(a) promptly notify the designating party in writing and include a copy of the

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subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue

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in the other litigation that some or all of the material covered by the subpoena or order is subject
to this agreement. Such notification shall include a copy of this agreement; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

the designating party whose confidential material may be affected.
8.

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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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
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
AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 7

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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order or agreement that provides for production without prior privilege review. Parties agree to

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

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10.

NON TERMINATION AND RETURN OF DOCUMENTS

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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.

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destruction.

Alternatively, the parties may agree upon appropriate methods of

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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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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 8

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: July 11, 2018

s/ James G. Zissler
James G. Zissler (WSBA #30287)
LITTLER MENDELSON, P.C.
Attorneys for Plaintiff

DATED: July 11, 2018

s/ Thomas P. Holt
Thomas P. Holt (WSBA #39722)
LITTLER MENDELSON, P.C.
Attorneys for Plaintiff

DATED: July 11, 2018

s/ Emily R. Cardenas
Emily R. Cardenas (WSBA #43180)
LITTLER MENDELSON, P.C.
Attorneys for Plaintiff

DATED: July 11, 2018

s/ Justo G. Gonzalez
Justo G. Gonzalez (WSBA #39127)
STOKES LAWRENCE, P.S.
Attorneys for Defendants

DATED: July 11, 2018

s/ Jaime Cuevas, Jr.
Jaime Cuevas, Jr. (WSBA #51108)
STOKES LAWRENCE, P.S.
Attorneys for Defendants

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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 9

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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
proceeding in any other court, constitute a waiver by the producing party of any privilege
applicable to those documents, including the attorney-client privilege, attorney work-product
protection, or any other privilege or protection recognized by law.

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DATED: July 13, 2018.

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A
Robert S. Lasnik

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United States District Judge

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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 10

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,
of

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or

type

full

name],

[print or type full address], declare under penalty of perjury that I

have read in its entirety and understand the Stipulated Protective Order that was issued by the
United States District Court for the Western District of Washington on

[date]

in the case of USI Insurance Services National, Inc., formerly known as Wells Fargo Insurance
Services USA, Inc. v. Stanley Ogden et al., 2:17-cv-01394 RSL. I agree to comply with and to be
bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that
failure to so comply could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that is subject to
this Stipulated Protective Order to any person or entity except in strict compliance with the
provisions of this Order.

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[print

I further agree to submit to the jurisdiction of the United States District Court for the
Western District of Washington for the purpose of enforcing the terms of this Stipulated
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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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 11

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300

CERTIFICATE OF SERVICE

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I am a resident of the State of Washington. I am over the age of eighteen years and not a

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party to the within-entitled action. My business address is One Union Square, 600 University

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Street, Suite 3200, Seattle, Washington 98101.

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electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which

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will send notification of such filing to the following:

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Attorney for Defendant

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Justo G. Gonzalez
Stokes Lawrence, P.S.
1420 Fifth Avenue, Suite 3000
Seattle, WA 98101-2393
Tel.: [phone]
Fax: [phone]
[e-mail]

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I hereby certify that on July 11, 2018, I

I certify under penalty of perjury under the laws of the United States and of the State of
Washington that the foregoing is true and correct.
Dated this 11th day of July, 2018.

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/s/Karen Fiumano Yun
Karen Fiumano Yun
[e-mail]
LITTLER MENDELSON, P.C.

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Firmwide:153618746.4 096350.1002

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AMENDED STIPULATED PROTECTIVE ORDER
2:17-CV-01394- 12

LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101.3122
206.623.3300