Cody, Inc. v. Falsetti

Filing 24

STIPULATED PROTECTIVE ORDER signed by Judge Marsha J. Pechman. (PM)

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UNITED STATES DISTRICT COURT OF WASHINGTON
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WESTERN DISTRICT OF WASHINGTON
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SEATTLE COURTHOUSE
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CODY, INC., a Delaware corporation,
Plaintiff,

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STIPULATED PROTECTIVE ORDER

v.

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No. 2:17-cv-01833

DANA FALSETTI, an individual; and
DOES 1 through 10, inclusive,

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Defendants.
____________________________________

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DANA FALSETTI, an individual,

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Counterclaimant,

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v.
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CODY, INC., a Delaware corporation,
Counter-defendant.

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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

1 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
2 protection on all disclosures or responses to discovery, the protection it affords from public
3 disclosure and use extends only to the limited information or items that are entitled to confidential
4 treatment under the applicable legal principles, and it does not presumptively entitle parties to file
5 confidential information under seal.
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“CONFIDENTIAL” MATERIAL

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“Confidential” material shall include, but may not be limited to, the following documents

8 and tangible things produced or otherwise exchanged: Contracts between parties that contain a
9 confidentiality provision; and customer lists.
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“Confidential” material shall not include previously “published” documents. “Published”

11 as defined by Black’s Law Dictionary is to “distribute copies (of a work) to the public.”
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SCOPE

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

14 defined above), but also (1) any information copied or extracted from confidential material; (2) all
15 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
16 conversations, or presentations by parties or their counsel that might reveal confidential material.
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However, the protections conferred by this agreement do not cover information that is in

18 the public domain, including information which was published, as defined above, prior to this
19 lawsuit being filed, or becomes part of the public domain through trial or otherwise.
20 4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

Basic Principles. A receiving party may use confidential material that is disclosed

22 or produced by another party or by a non-party in connection with this case only for prosecuting,
23 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the
24 categories of persons and under the conditions described in this agreement. Confidential material
25 must be stored and maintained by a receiving party at a location and in a secure manner that ensures
26 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

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

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

5 of counsel to whom it is reasonably necessary to disclose the information for this litigation;
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(b)

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

7 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
8 agree that a particular document or material produced is for “Attorney’s Eyes Only” and is so
9 designated;
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(c)

experts and consultants to whom disclosure is reasonably necessary for this

11 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

14 confidential material, provided that counsel for the party retaining the copy or imaging service
15 instructs the service not to disclose any confidential material to third parties and to immediately
16 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

18 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
19 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
20 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
21 be separately bound by the court reporter and may not be disclosed to anyone except as permitted
22 under this agreement;
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(g)

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

24 custodian or other person who otherwise possessed or knew the information.
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4.3

Filing Confidential Material. Before filing confidential material or discussing or

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

1 to determine whether the designating party will remove the confidential designation, whether the
2 document can be redacted, or whether a motion to seal or stipulation and proposed order is
3 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards
4 that will be applied when a party seeks permission from the court to file material under seal.
5 5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

7 or non-party that designates information or items for protection under this agreement must take
8 care to limit any such designation to specific material that qualifies under the appropriate legal
9 standards. The designating party must designate for protection only those parts of material,
10 documents, items, or oral or written communications that qualify, so that other portions of the
11 material, documents, items, or communications for which protection is not warranted are not swept
12 unjustifiably within the ambit of this agreement.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

14 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
15 unnecessarily encumber or delay the case development process or to impose unnecessary expenses
16 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 for

18 protection do not qualify for protection, the designating party must promptly notify all other parties
19 that it is withdrawing the mistaken designation.
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5.2

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

21 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
22 ordered, disclosure or discovery material that qualifies for protection under this agreement must
23 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

25 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
26 the designating party must affix the word “CONFIDENTIAL” to each page that contains

1 confidential material. If only a portion or portions of the material on a page qualifies for protection,
2 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
3 markings in the margins).
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(b)

Testimony given in deposition or in other pretrial proceedings: the parties

5 and any participating non-parties must identify on the record, during the deposition or other pretrial
6 proceeding, all protected testimony, without prejudice to their right to so designate other testimony
7 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the
8 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or
9 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
10 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

12 on the exterior of the container or containers in which the information or item is stored the word
13 “CONFIDENTIAL” If only a portion or portions of the information or item warrant protection,
14 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

16 designate qualified information or items does not, standing alone, waive the designating party’s
17 right to secure protection under this agreement for such material. Upon timely correction of a
18 designation, the receiving party must make reasonable efforts to ensure that the material is treated
19 in accordance with the provisions of this agreement.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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

22 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
24 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
25 challenge a confidentiality designation by electing not to mount a challenge promptly after the
26 original designation is disclosed.

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6.2

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

2 regarding confidential designations without court involvement. Any motion regarding confidential
3 designations or for a protective order must include a certification, in the motion or in a declaration
4 or affidavit, that the movant has engaged in a good faith meet and confer conference with other
5 affected parties in an effort to resolve the dispute without court action. The certification must list
6 the date, manner, and participants to the conference. A good faith effort to confer requires a face7 to-face meeting or a telephone conference.
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6.3

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

9 intervention, the designating party may file and serve a motion to retain confidentiality under Local
10 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
11 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
12 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
13 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain
14 the material in question as confidential until the court rules on the challenge.
15 7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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

18 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
19 must:
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(a)

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

21 subpoena or court order;
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(b)

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

23 issue in the other litigation that some or all of the material covered by the subpoena or order is
24 subject to this agreement. Such notification shall include a copy of this agreement; and
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(c)

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

26 the designating party whose confidential material may be affected.

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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

3 material to any person or in any circumstance not authorized under this agreement, the receiving
4 party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
5 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the
6 person or persons to whom unauthorized disclosures were made of all the terms of this agreement,
7 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
8 Bound” that is attached hereto as Exhibit A.
9 9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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

12 produced material is subject to a claim of privilege or other protection, the obligations of the
13 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision
14 is not intended to modify whatever procedure may be established in an e-discovery order or
15 agreement that provides for production without prior privilege review. The parties agree to the
16 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
17 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

19 party must return all confidential material to the producing party, including all copies, extracts and
20 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction
21 and method of confirming same.
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Notwithstanding this provision, counsel are entitled to retain one archival copy of all

23 documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
24 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work
25 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

2 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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Dated: February 14, 2018
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CARNEY BADLEY SPELLMAN, P.S.
Attorneys for Plaintiff and CounterDefendant Cody, Inc.

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By

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/s/ Ashley K. Long
Ashley K. Long/ WA Bar No. 45738
701 Fifth Avenue, Suite 3600
Seattle, WA 98104-7010
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]

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Dated: February 14, 2018
THOITS LAW
Attorneys for Plaintiff and CounterDefendant Cody, Inc.

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By

/s/ Andrew P. Holland
Andrew P. Holland/ CA Bar No. 224737
(Admitted pro hac vice)
Misasha S. Graham/ CA Bar No. 237187
(Admitted pro hac vice)
A Professional Corporation
400 Main Street, Suite 250
Los Altos, California 94022
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]

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Dated: February 14, 2018
JEFFERS, DANIELSON, SONN &
AYLWARD, P.S.
Attorneys for Defendant and
Counterclaimant Dana Falsetti

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By __/s/ Laraine M. Burrell ___________
Laraine M. Burrell / WA Bar No. 48684
Brian C. Huber / WA Bar No. 23659
2600 Chester Kimm Road
P.O. Box 1688
Wenatchee, WA 98807-1688
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

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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 proceeding
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in any other court, constitute a waiver by the producing party of any privilege applicable to those
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documents, including the attorney-client privilege, attorney work-product protection, or any other
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privilege or protection recognized by law.
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DATED: February 14, 2018

A
Marsha J. Pechman
United States District Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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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 Protective Order that was
6 issued by the United States District Court for the Western District of Washington on [date] in the
7 case of Cody, Inc. v. Dana Falsetti, No. 2:17-cv-01833. I agree to comply with and to be bound
8 by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure
9 to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly
10 promise that I will not disclose in any manner any information or item that is subject to this
11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions
12 of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the

14 Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective
15 Order, even if such enforcement proceedings occur after termination of this action.
16 Date:
17 City and State where sworn and signed:
18 Printed name:
19 Signature:
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