Eureka! Pet Food, Inc. v. Ross-Wells, Inc.

Filing 21

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

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The Honorable Marsha J. Pechman

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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EUREKA! PET FOOD, INC., a Florida
Corporation,

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Plaintiff,

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No.2:18-cv-00252-MJP
STIPULATED PROTECTIVE
ORDER

v.

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ROSS-WELLS, INC., a Wisconsin
Corporation,

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NOTE ON CALENDAR:
July 13, 2018

Defendant.

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1.

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

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or private information for which special protection may be warranted. Accordingly, the

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parties hereby stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does

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not confer blanket protection on all disclosures or responses to discovery, the protection it

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affords from public disclosure and use extends only to the limited information or items that

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are entitled to confidential treatment under the applicable legal principles, and it does not

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presumptively entitle parties to file confidential information under seal.
STIPULATED PROTECTIVE ORDER
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2.

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“CONFIDENTIAL” MATERIAL
“Confidential” material shall include the following documents and tangible things

produced or otherwise exchanged:
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Documents relating to the parties’ customers, including without limitation,
documents reflecting customer contact information and purchase history;

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Documents relating to product sourcing or pricing;

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Documents relating to or reflecting product development or manufacturing,

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including, but not limited to, product formulas or recipes;
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Documents reflecting confidential and sensitive financial information,

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including without limitation, bank statements, profit and loss statements,

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financial statements, tax returns, or other similar records;
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Documents or other personal information regarding the parties’ current and
former principals or employees, including without limitation, personnel files.

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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.

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However, the protections conferred by this agreement do not cover information that

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

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disclosed or produced by another party or by a non-party in connection with this case only

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for prosecuting, defending, or attempting to settle this litigation. Confidential material may

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be disclosed only to the categories of persons and under the conditions described in this

STIPULATED PROTECTIVE ORDER
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agreement. Confidential material must be stored and maintained by a receiving party at a

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location and in a secure manner that ensures that access is limited to the persons authorized

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under this agreement. The parties further agree that all non-public material that is disclosed

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or produced by another party or by a non-party in connection with this case shall be used

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only for purposes of prosecuting, defending, or attempting to settle this litigation.

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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

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employees of counsel to whom it is reasonably necessary to disclose the information for

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this litigation;

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(b)

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

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the receiving party to whom disclosure is reasonably necessary for this litigation, unless the

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

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and is so designated;

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(c)

experts and consultants to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(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

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duplication of confidential material, provided that counsel for the party retaining the copy

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or imaging service instructs the service not to disclose any confidential material to third

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parties and to immediately return all originals and copies of any confidential material;

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(f)

during their depositions, witnesses in the action to whom disclosure

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is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the

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court. Pages of transcribed deposition testimony or exhibits to depositions that reveal

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confidential material must be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this agreement;

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(g)

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

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discussing or referencing such material in court filings, the filing party shall confer with the

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designating party to determine whether the designating party will remove the confidential

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designation, whether the document can be redacted, or whether a motion to seal or

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stipulation and proposed order is warranted. Local Civil Rule 5(g) sets forth the procedures

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that must be followed and the standards that will be applied when a party seeks permission

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from the court to file material under 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

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

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

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appropriate standards. The designating party must designate for protection only those parts

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of material, documents, items, or oral or written communications that qualify, so that other

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portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this agreement.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are 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

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designated for protection do not qualify for protection, the designating party must promptly

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notify all other 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

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or ordered, disclosure or discovery material that qualifies for protection under this

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agreement must be clearly so designated before or when the material is disclosed or

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produced.

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(a)

Information in documentary form: (e.g., paper or electronic

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

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or trial proceedings), the designating party must affix the word “CONFIDENTIAL” to each

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page that contains confidential material. If only a portion or portions of the material on a

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page qualifies for protection, the producing party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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(b)

Testimony given in deposition or in other pretrial proceedings: the

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

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

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designate other testimony after reviewing the transcript. Any party or non-party may, within

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fifteen days after receiving the transcript of the deposition or other pretrial proceeding,

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designate portions of the transcript, or exhibits thereto, as confidential. If a party or non-

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party desires to protect confidential information at trial, the issue should be addressed

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during the pre-trial conference.

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(c)

Other tangible items: the producing party must affix in a prominent

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place on the exterior of the container or containers in which the information or item is

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stored the word “CONFIDENTIAL.” If only a portion or portions of the information or

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item warrant protection, the producing party, to the extent practicable, shall identify the

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protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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to designate qualified information or items does not, standing alone, waive the designating

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party’s right to secure protection under this agreement for such material. Upon timely

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correction of a designation, the receiving party must make reasonable efforts to ensure that

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the material is 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

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of confidentiality at any time. Unless a prompt challenge to a designating party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a party

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does not waive its right to challenge a confidentiality designation by electing not to mount a

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challenge promptly after the original designation is disclosed.

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6.2

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

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dispute regarding confidential designations without court involvement. Any motion

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regarding confidential designations or for a protective order must include a certification, in

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the motion or in a declaration or affidavit, that the movant has engaged in a good faith meet

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and confer conference with other affected parties in an effort to resolve the dispute without

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court action. The certification must list the date, manner, and participants to the conference.

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A good faith effort to 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

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

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under Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The

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burden of persuasion in any such motion shall be on the designating party. Frivolous

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challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary

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expenses and burdens on other parties) may expose the challenging party to sanctions. All

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parties shall continue to maintain the material in question as confidential until the court

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rules on the challenge.

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7.

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OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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

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compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that party must:

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(a)

promptly notify the designating party in writing and include a copy

of the subpoena or court order;

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(b)

promptly notify in writing the party who caused the subpoena or

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

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or order is subject to this agreement. Such notification shall include a copy of this

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agreement; and

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(c)

cooperate with respect to all reasonable procedures sought to be

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pursued 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

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confidential material to any person or in any circumstance not authorized under this

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agreement, the receiving party must immediately (a) notify in writing the designating party

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of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of

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the protected material, (c) inform the person or persons to whom unauthorized disclosures

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were made of all the terms of this agreement, and (d) request that such person or persons

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execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as

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Exhibit A.

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9.

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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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

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the 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-

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discovery order or agreement that provides for production without prior privilege review.

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

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herein.

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10.

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NON TERMINATION AND RETURN OF DOCUMENTS
Within 60 days after the termination of this action, including all appeals, each

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receiving party must return all confidential material to the producing party, including all

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copies, extracts and summaries thereof. Alternatively, the parties may agree upon

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appropriate methods of destruction.

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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

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expert 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 designating party agrees otherwise in writing or a court orders otherwise.

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//

STIPULATED PROTECTIVE ORDER
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: July 13, 2018.

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DATED: July 13, 2018.

O'NEIL, CANNON, HOLLMAN,
DEJONG & LAING S.C.

YARMUTH WILSDON PLLC

By: s/Patrick G. McBride
Laura Lavey
Patrick G. McBride
(Pro Hac Vice)
111 E. Wisconsin Avenue, Suite 1400
Milwaukee, WI 53202
[phone]
[e-mail]
[e-mail]

By: s/Molly A. Terwilliger
Diana S. Breaux, WSBA No. 46112
Molly A. Terwilliger, WSBA No. 28449
1420 Fifth Avenue, Suite 1400
Seattle, WA 98101
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Defendant Ross-Wells, Inc.
HILLIS CLARK MARTIN &
PETERSON P.S.
By: s/Mary Crego Peterson
Eric D. Lansverk, WSBA #17218
Mary Crego Peterson, WSBA #31593
999 Third Avenue, Suite 4600
Seattle, WA 98104
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]

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Attorneys for Plaintiff

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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

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of any documents in this proceeding shall not, for the purposes of this proceeding or any

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other proceeding in any other court, constitute a waiver by the producing party of any

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privilege applicable to those documents, including the attorney-client privilege, attorney

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work-product protection, or any other privilege or protection recognized by law.

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DATED: July 16, 2018

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A

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The Honorable Marsha J. Pechman
United States Senior District Court Judge

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STIPULATED PROTECTIVE ORDER
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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
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penalty of perjury that I have read in its entirety and understand the Stipulated Protective
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Order that was issued by the United States District Court for the Western District of
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Washington on ______________ in the case of EUREKA! PET FOOD, INC. v. ROSS8
WELLS, INC., Case No. 2:18-cv-00252-MJP. I agree to comply with and to be bound by all
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the terms of this Stipulated Protective Order and I understand and acknowledge that failure
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to so comply could expose me to sanctions and punishment in the nature of contempt. I
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solemnly promise that I will not disclose in any manner any information or item that is subject
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to this Stipulated Protective Order to any person or entity except in strict compliance with the
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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
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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
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1036.01 sg130602 0/0/00