Estate of Kekona v. Alaska Airlines Inc et al

Filing 33

PROTECTIVE ORDER re parties' 32 Stipulated Motion for Protective Order signed by U.S. District Judge John C Coughenour. (TH)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 Estate of BERNICE KEKONA by its Personal Representative, Darlene Bloyed, 10 CASE NO. C18-0116-JCC ORDER Plaintiff, 11 v. 12 ALASKA AIRLINES, INC., an Alaska corporation; ALASKA AIR GROUP, INC., a Delaware corporation. 13 14 Defendants. 15 16 Pursuant to the parties’ stipulated motion for a protective order (Dkt. No. 32), the Court 17 18 19 20 21 22 23 24 25 ORDERS as follows: 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 Local Civil Rule 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 26 ORDER C18-0116-JCC PAGE - 1 1 to confidential treatment under the applicable legal principles, and it does not presumptively 2 entitle parties to file confidential information under seal. 3 2. 4 “CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things 5 produced or otherwise exchanged: Service Agreement [Wheelchairs] between Alaska Airlines 6 and Huntleigh for service at the Portland International Airport; Amended and Restated Signatory 7 Passenger Airline Lease and Operating Agreement with the Port of Portland; Defendant’s 8 proprietary material, such as contracts, financial records, manuals, and training materials; 9 employment, medical, and financial records of defendant’s employees; any individual’s 10 personally identifying information, such as social security numbers, driver’s license numbers, 11 personal telephone numbers, dates of birth, home addresses, personal financial information; 12 passenger manifests and other passenger information, and any other information to be requested 13 in discovery that has an equivalent need for protection from disclosure. 14 3. 15 SCOPE The protections conferred by this agreement cover not only confidential material (as 16 defined above), but also (1) any information copied or extracted from confidential material; (2) 17 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 18 conversations, or presentations by parties or their counsel that might reveal confidential material. 19 However, the protections conferred by this agreement do not cover information that is in the 20 public domain or becomes part of the public domain through trial or otherwise. 21 4. 22 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 23 or produced by another party or by a non-party in connection with this case only for prosecuting, 24 defending, or attempting to settle this litigation. Confidential material may be disclosed only to 25 the categories of persons and under the conditions described in this agreement. Confidential 26 ORDER C18-0116-JCC PAGE - 2 1 material must be stored and maintained by a receiving party at a location and in a secure manner 2 that ensures that access is limited to the persons authorized under this agreement. 3 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 4 ordered by the Court or permitted in writing by the designating party, a receiving party may 5 disclose any confidential material only to: 6 7 (a) of counsel to whom it is reasonably necessary to disclose the information for this litigation; 8 9 the receiving party’s counsel of record in this action, as well as employees (b) the officers, directors, and employees (including in house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 10 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 11 designated; 12 (c) experts and consultants to whom disclosure is reasonably necessary for 13 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 14 A); 15 (d) the Court, court personnel, and court reporters and their staff; 16 (e) copy or imaging services retained by counsel to assist in the duplication of 17 confidential material, provided that counsel for the party retaining the copy or imaging service 18 instructs the service not to disclose any confidential material to third parties and to immediately 19 return all originals and copies of any confidential material; 20 (f) during their depositions, witnesses in the action to whom disclosure is 21 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 22 (Exhibit A), unless otherwise agreed by the designating party or ordered by the Court. Pages of 23 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 24 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 25 under this agreement; 26 ORDER C18-0116-JCC PAGE - 3 1 2 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 3 4.3 Filing Confidential Material. Before filing confidential material or discussing or 4 referencing such material in court filings, the filing party shall confer with the designating party 5 to determine whether the designating party will remove the confidential designation, whether the 6 document can be redacted, or whether a motion to seal or stipulation and proposed order is 7 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the 8 standards that will be applied when a party seeks permission from the Court to file material 9 under seal. 10 11 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 12 or non-party that designates information or items for protection under this agreement must take 13 care to limit any such designation to specific material that qualifies under the appropriate 14 standards. The designating party must designate for protection only those parts of material, 15 documents, items, or oral or written communications that qualify, so that other portions of the 16 material, documents, items, or communications for which protection is not warranted are not 17 swept unjustifiably within the ambit of this agreement. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 19 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 20 unnecessarily encumber or delay the case development process or to impose unnecessary 21 expenses and burdens on other parties) expose the designating party to sanctions. 22 If it comes to a designating party’s attention that information or items that it designated 23 for protection do not qualify for protection, the designating party must promptly notify all other 24 parties that it is withdrawing the mistaken designation. 25 26 5.2 Manner and Timing of Designations. Except as otherwise provided in this agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ORDER C18-0116-JCC PAGE - 4 1 ordered, disclosure or discovery material that qualifies for protection under this agreement must 2 be clearly so designated before or when the material is disclosed or produced. 3 (a) Information in documentary form: (e.g., paper or electronic documents and 4 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 5 the designating party must affix the word “CONFIDENTIAL” to each page that contains 6 confidential material. If only a portion or portions of the material on a page qualifies for 7 protection, the producing party also must clearly identify the protected portion(s) (e.g., by 8 making appropriate markings in the margins). 9 (b) Testimony given in deposition or in other pretrial proceedings: the parties and any 10 participating non-parties must identify on the record, during the deposition or other pretrial 11 proceeding, all protected testimony, without prejudice to their right to so designate other 12 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after 13 receiving the transcript of the deposition or other pretrial proceeding, designate portions of the 14 transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect 15 confidential information at trial, the issue should be addressed during the pre-trial conference. 16 (c) Other tangible items: the producing party must affix in a prominent place on the 17 exterior of the container or containers in which the information or item is stored the word 18 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 19 the producing party, to the extent practicable, shall identify the protected portion(s). 20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 21 designate qualified information or items does not, standing alone, waive the designating party’s 22 right to secure protection under this agreement for such material. Upon timely correction of a 23 designation, the receiving party must make reasonable efforts to ensure that the material is 24 treated in accordance with the provisions of this agreement. 25 // 26 // ORDER C18-0116-JCC PAGE - 5 1 6. 2 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 3 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 4 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 5 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 6 challenge a confidentiality designation by electing not to mount a challenge promptly after the 7 original designation is disclosed. 8 9 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute regarding confidential designations without court involvement. Any motion regarding 10 confidential designations or for a protective order must include a certification, in the motion or in 11 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 12 conference with other affected parties in an effort to resolve the dispute without court action. The 13 certification must list the date, manner, and participants to the conference. A good faith effort to 14 confer requires a face-to-face meeting or a telephone conference. 15 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 16 intervention, the designating party may file and serve a motion to retain confidentiality under 17 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 18 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 19 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 20 other parties) may expose the challenging party to sanctions. All parties shall continue to 21 maintain the material in question as confidential until the Court rules on the challenge. 22 // 23 // 24 // 25 // 26 ORDER C18-0116-JCC PAGE - 6 1 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 2 OTHER LITIGATION 3 If a party is served with a subpoena or a court order issued in other litigation that compels 4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 5 party must: 6 7 (a) subpoena or court order; 8 9 10 promptly notify the designating party in writing and include a copy of the (b) promptly notify in writing the party who caused the subpoena or order to issue in 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 11 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 12 designating party whose confidential material may be affected. 13 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 14 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 15 material to any person or in any circumstance not authorized under this agreement, the receiving 16 party must immediately (a) notify in writing the designating party of the unauthorized 17 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, 18 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 19 this agreement, and (d) request that such person or persons execute the “Acknowledgment and 20 Agreement to Be Bound” that is attached hereto as Exhibit A. 21 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 22 PROTECTED MATERIAL 23 When a producing party gives notice to receiving parties that certain inadvertently 24 produced material is subject to a claim of privilege or other protection, the obligations of the 25 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 26 provision is not intended to modify whatever procedure may be established in an e-discovery ORDER C18-0116-JCC PAGE - 7 1 order or agreement that provides for production without prior privilege review. The parties agree 2 to the entry of a non-waiver order under Federal Rule of Evidence 502(d) as set forth herein. 3 10. 4 NON-TERMINATION AND RETURN OF DOCUMENTS Within 60 days after the termination of this action, including all appeals, each receiving 5 party must return all confidential material to the producing party, including all copies, extracts 6 and summaries thereof. Alternatively, the parties may agree upon appropriate methods of 7 destruction. 8 9 Notwithstanding this provision, counsel are entitled to retain one archival copy of all documents filed with the Court, trial, deposition, and hearing transcripts, correspondence, 10 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 11 work product, even if such materials contain confidential material. 12 13 The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 14 15 DATED this 7th day of August 2018. A 16 17 18 John C. Coughenour UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 ORDER C18-0116-JCC PAGE - 8 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 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 August 7, 7 2018 in the case of Estate of Bernice Kekona v. Alaska Airlines, Inc., U.S.D.C. Western District 8 of Washington, Cause No. 2:18-cv-00116-JCC. I agree to comply with and to be bound by all the 9 terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Western District of Washington for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this action. 17 18 Date: 19 City and State where sworn and signed: 20 Printed name: 21 Signature: 22 23 24 25 26 ORDER C18-0116-JCC PAGE - 9

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