MetroPCS New York, LLC v. 35-46 Broadway, Inc. et al

Filing 18

PROTECTIVE ORDER re Plaintiff's 17 MOTION for Protective Order. Signed by Judge Ricardo S Martinez. (PM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 METROPCS NEW YORK, LLC, a Delaware corporation, 9 Plaintiff, 10 11 12 Case No. 17-cv-01554-RSM PROTECTIVE ORDER v. 35-46 BROADWAY, INC., a New York corporation; and ABDALLAH NOFAL, DAWOD NOFAL and SAED NOFAL, individuals, 13 Defendants. 14 15 1. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or 16 17 private information for which special protection may be warranted. 1 Accordingly, Plaintiff 18 MetroPCS New York, LLC hereby petitions the court to enter the following Protective Order. 2 19 This Order is consistent with Local Civil Rule 26(c). It does not confer blanket protection on all 20 disclosures or responses to discovery, the protection it affords from public disclosure and use 21 extends only to the limited information or items that are entitled to confidential treatment under 22 23 24 25 26 27 1 Default was entered against all Defendants on January 26, 2018, but Plaintiff has served certain discovery requests (including third party discovery requests) to support its claims and, in particular, to determine appropriate remedies. 2 Non-party TracFone Wireless, Inc. has requested entry of a protective order in connection with its production of documents to Plaintiff. This Order is modelled on the Western District’s Model Stipulated Protective Order. Plaintiff does not believe this Order will be opposed by Defendants, but because the Defendants have not appeared in this matter and have not responded to communications from Plaintiff or its counsel, Plaintiff is not able to present this as a stipulated Order. PROTECTIVE ORDER - 1 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 the applicable legal principles, and it does not presumptively entitle parties to file confidential 2 information under seal. 3 2. “CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things 4 5 produced by a party or non-party in response to discovery requests: proprietary, non-public 6 documents such as dealer or subdealer contracts or agreements; dealer applications and/or credit 7 applications; business correspondence containing commercially-sensitive information; and 8 personally identifiable information relating to dealers or subdealers. 9 3. SCOPE The protections conferred by this Order cover not only confidential material (as defined 10 11 above), but also (1) any information copied or extracted from confidential material; (2) all 12 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 13 conversations, or presentations by parties or their counsel that might reveal confidential material. However, the protections conferred by this Order do not cover information that is in the 14 15 public domain or becomes part of the public domain through trial or otherwise. 16 4. 17 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 18 or produced by another party or by a non-party in connection with this case only for prosecuting, 19 defending, or attempting to settle this litigation. Confidential material may be disclosed only to 20 the categories of persons and under the conditions described in this Order. Confidential material 21 must be stored and maintained by a receiving party at a location and in a secure manner that 22 ensures that access is limited to the persons authorized under this Order. 23 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 24 ordered by the court or permitted in writing by the designating party, 3 a receiving party may 25 disclose any confidential material only to: 26 27 3 For avoidance of doubt, “designating party” may include a non-party that is subject to discovery in this action. PROTECTIVE ORDER - 2 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 (a) 1 2 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) 3 the officers, directors, and employees (including in house counsel) of the 4 receiving party to whom disclosure is reasonably necessary for this litigation, unless a particular 5 document or material produced is for Attorney’s Eyes Only and is so designated; (c) 6 7 experts and consultants to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (d) the court, court personnel, and court reporters and their staff; 9 (e) copy or imaging services retained by counsel to assist in the duplication of 10 confidential material, provided that counsel for the party retaining the copy or imaging service 11 instructs the service not to disclose any confidential material to third parties and to immediately 12 return all originals and copies of any confidential material; (f) 13 during their depositions, witnesses in the action to whom disclosure is reasonably 14 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 15 A), unless otherwise agreed by the designating party or ordered by the court. Pages of 16 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 17 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 18 under this Order; 19 (g) 20 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 4.3 21 Filing Confidential Material. Before filing confidential material or discussing or 22 referencing such material in court filings, the filing party shall confer with the designating party 23 to determine whether the designating party will remove the confidential designation, whether the 24 document can be redacted, or whether a motion to seal or stipulation and proposed order is 25 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the 26 standards that will be applied when a party seeks permission from the court to file material under 27 seal. PROTECTIVE ORDER - 3 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 2 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 3 or non-party that designates information or items for protection under this Order must take care 4 to limit any such designation to specific material that qualifies under the appropriate standards. 5 The designating party must designate for protection only those parts of material, documents, 6 items, or oral or written communications that qualify, so that other portions of the material, 7 documents, items, or communications for which protection is not warranted are not swept 8 unjustifiably within the ambit of this Order. 9 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 10 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 11 unnecessarily encumber or delay the case development process or to impose unnecessary 12 expenses and burdens on other parties) expose the designating party to sanctions. 13 If it comes to a designating party’s attention that information or items that it designated 14 for protection do not qualify for protection, the designating party must promptly notify all other 15 parties that it is withdrawing the mistaken designation. 16 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 17 (see, e.g., second sentence of section 5.2(b) below), or as otherwise stipulated or ordered, 18 disclosure or discovery material that qualifies for protection under this Order must be clearly so 19 designated before or when the material is disclosed or produced. 20 (a) Information in documentary form: (e.g., paper or electronic documents and 21 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 22 the designating party must affix the word “CONFIDENTIAL” to each page that contains 23 confidential material. If only a portion or portions of the material on a page qualifies for 24 protection, the producing party also must clearly identify the protected portion(s) (e.g., by 25 making appropriate markings in the margins). 26 27 (b) Testimony given in deposition or in other pretrial proceedings: the parties and any participating non-parties must identify on the record, during the deposition or other pretrial PROTECTIVE ORDER - 4 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 proceeding, all protected testimony, without prejudice to their right to so designate other 2 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after 3 receiving the transcript of the deposition or other pretrial proceeding, designate portions of the 4 transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect 5 confidential information at trial, the issue should be addressed during the pre-trial conference. (c) 6 Other tangible items: the producing party must affix in a prominent place on the 7 exterior of the container or containers in which the information or item is stored the word 8 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 9 the producing party, to the extent practicable, shall identify the protected portion(s). 5.3 10 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 11 designate qualified information or items does not, standing alone, waive the designating party’s 12 right to secure protection under this Order for such material. Upon timely correction of a 13 designation, the receiving party must make reasonable efforts to ensure that the material is 14 treated in accordance with the provisions of this Order. 15 6. 16 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 17 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 18 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 19 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 20 challenge a confidentiality designation by electing not to mount a challenge promptly after the 21 original designation is disclosed. 22 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 23 regarding confidential designations without court involvement. Any motion regarding 24 confidential designations or for a protective order must include a certification, in the motion or in 25 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 26 conference with other affected parties in an effort to resolve the dispute without court action. The 27 PROTECTIVE ORDER - 5 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 certification must list the date, manner, and participants to the conference. A good faith effort to 2 confer requires a face-to-face meeting or a telephone conference. 6.3 3 Judicial Intervention. If the parties cannot resolve a challenge without court 4 intervention, the designating party may file and serve a motion to retain confidentiality under 5 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 6 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 7 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 8 other parties) may expose the challenging party to sanctions. All parties shall continue to 9 maintain the material in question as confidential until the court rules on the challenge. 10 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 11 If a party is served with a subpoena or a court order issued in other litigation that compels 12 13 14 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party must: (a) 15 16 subpoena or court order; (b) 17 18 19 22 23 24 25 26 27 promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Order. Such notification shall include a copy of this Order; and (c) 20 21 promptly notify the designating party in writing and include a copy of the cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential material to any person or in any circumstance not authorized under this Order, the receiving party must immediately (a) notify in writing the designating party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of PROTECTIVE ORDER - 6 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 this Order, and (d) request that such person or persons execute the “Acknowledgment and 2 Agreement to Be Bound” that is attached hereto as Exhibit A. 3 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 4 When a producing party gives notice to receiving parties that certain inadvertently 5 6 7 8 9 10 11 produced material is subject to a claim of privilege or other protection, the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review. The parties agree to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 10. Within 60 days after the termination of this action, including all appeals, each receiving 12 13 14 15 party must return all confidential material to the producing party, including all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. Notwithstanding this provision, counsel are entitled to retain one archival copy of all 16 17 18 19 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain confidential material. The confidentiality obligations imposed by this Order shall remain in effect until a 20 21 22 23 24 25 26 27 NON TERMINATION AND RETURN OF DOCUMENTS designating party agrees otherwise in writing or a court orders otherwise. /// /// /// /// /// /// PROTECTIVE ORDER - 7 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 PRESENTED BY: 2 DATED March 12, 2018 3 4 5 6 s/ Michael E. Kipling Michael E. Kipling, WSBA #7677 Timothy M. Moran WSBA #24925 KIPLING LAW GROUP PLLC 4464 Fremont Avenue N., Suite 300 Seattle, WA 98103 (206) 545-0345 7 Counsel for Plaintiff MetroPCS New York, LLC 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PROTECTIVE ORDER - 8 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 2 SO ORDERED IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 3 documents in this proceeding shall not, for the purposes of this proceeding or any other 4 proceeding in any other court, constitute a waiver by the producing party of any privilege 5 applicable to those documents, including the attorney-client privilege, attorney work-product 6 protection, or any other privilege or protection recognized by law. 7 8 DATED: March 12, 2018 9 10 11 A 12 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PROTECTIVE ORDER - 9 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 ______________________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Protective Order that was issued by 6 the United States District Court for the Western District of Washington on ______________ in 7 the case of METROPCS NEW YORK, LLC v. 35-46 BROADWAY, INC.; and ABDALLAH 8 NOFAL, DAWOD NOFAL and SAED NOFAL (USDC WD-WA #17-cv-01554-RSM). I agree to 9 comply with and to be bound by all the terms of this Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and punishment in the 11 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 12 item that is subject to this Protective Order to any person or entity except in strict compliance 13 with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the Western 15 District of Washington for the purpose of enforcing the terms of this Protective Order, even if 16 such enforcement proceedings occur after termination of this action. 17 Date: ___________________ 18 City and State where sworn and signed: _____________________________ 19 Printed name: _______________________ 20 Signature: __________________________ 21 22 23 24 25 26 27 PROTECTIVE ORDER - 10 (17-cv-01554-RSM) KIPLING LAW GROUP PLLC 4464 FREMONT AVE N, SUITE 300 SEATTLE, WASHINGTON 98103 telephone (206) 545-0345 fax (206) 545-0350

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