Kim v. Sanofi Pasteur, Inc

Filing 11

STIPULATED PROTECTIVE ORDER re parties' 9 Stipulation, by Judge Thomas S. Zilly. (SWT)

The Honorable Thomas S. Zilly

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

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JOHN KIM,
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No. 2:18-cv-00031-TSZ
Plaintiff,

v.
STIPULATED PROTECTIVE ORDER

SANOFI PASTEUR, INC.,

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Defendant.

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1.

PURPOSES AND LIMITATIONS

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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: social security numbers, medical records and information;

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Plaintiff’s financial records; personnel files and confidential personnel information of employees

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STIPULATED PROTECTIVE ORDER - 1
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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other than Plaintiff, Defendant’s customer list and customer contact information; and

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Defendant’s financial or business information that is not subject to public disclosure.

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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; (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.

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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.
4.

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;

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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 litigation, unless the parties

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agree that a particular document or material produced is for Attorney’s Eyes Only and is so

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designated;

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STIPULATED PROTECTIVE ORDER - 2
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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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 to Be Bound” (Exhibit

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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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(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)

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

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

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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.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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

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

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STIPULATED PROTECTIVE ORDER - 3
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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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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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

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

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proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that

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contains 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

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

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pretrial 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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STIPULATED PROTECTIVE ORDER - 4
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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transcript, or exhibits thereto, as confidential.

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

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(c)

If a party or non-party desires to protect

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 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

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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.

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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. 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.

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6.3

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

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

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STIPULATED PROTECTIVE ORDER - 5
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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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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LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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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

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party must:
(a)

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

subpoena or court order;
(b)

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

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issue in the other litigation that some or all of the material covered by the subpoena or order is

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subject to this agreement. Such notification shall include a copy of this agreement; and
(c)

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cooperate with respect to all reasonable procedures sought to be pursued

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by the designating party whose confidential material may be affected.

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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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STIPULATED PROTECTIVE ORDER - 6
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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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.

NON TERMINATION AND DESTRUCTION 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 destroy all confidential material obtained from the producing party, including all

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copies, extracts and summaries thereof.

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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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DATED: March 19, 2018

/s/ Tiffany Cartwright
Leslie J. Hagin, WSBA #29186
Tiffany M. Cartwright, WSBA #43564
MacDonald Hoague & Bayless
Attorneys for Plaintiff

DATED: March 19, 2018

/s/ Michael Griffin
Michael Griffin, WSBA #29103
Jonathan M. Minear, WSBA #41377
Jackson Lewis P.C.
Attorneys for Defendant

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STIPULATED PROTECTIVE ORDER - 7
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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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: March 22, 2018.

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A

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Thomas S. Zilly
United States District Judge

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STIPULATED PROTECTIVE ORDER - 8
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]

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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

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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

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_________________ [date] in the case of John Kim v. Sanofi Pasteur, Inc., Case No. 2:18-cv-

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00031-TSZ. I agree to comply with and to be bound by all the terms of this Stipulated Protective

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

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

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

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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
(Case No. 2:18-cv-00031-TSZ)

Jackson Lewis P.C.
520 Pike Street, Suite 2300
Seattle, Washington 98101
[phone]